Previous comments - Part 8

Article 86

[680] General obligation to cooperate
States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
General Remarks
International criminal courts must get the necessities of criminal justice, including evidence, from States, other entities such as peace-keeping forces and non-consensual parties, such as the person investigated, his or her country of origin, or third-parties that have relevant information for the case. In contrast to domestic criminal courts, international tribunals have no enforcement agencies at their disposal: without the help of national authorities or other entities such as peace-keeping forces, they cannot collect evidence. In a national legal system a prosecutor may rely upon a vertical authoritative process while at the international level all investigatory measures require either the consent of the territorial State or a binding decision from an international body such as the UN Security Council - often together with the intervention of other States. In national systems the investigations and collection of evidence are normally either the duty of the police unsupervised by any superior authority, a prosecutor or investigative judge aided by the police, or a mix thereof. International tribunals and courts dealing with international crimes lack State machinery at its disposal to investigate and collect evidence, and, as a result, they must rely first and foremost on the cooperation of the State where the crimes occurred. Without the cooperation of State authorities, international courts cannot operate. This problem also applies to national courts when witnesses reside abroad, a national court cannot subject witnesses them to the same powers as witnesses within its jurisdiction. Whereas this problem only concerns a minority of cases in domestic proceedings, every single witness is outside the jurisdiction of an international criminal court. Hence, State cooperation is inevitable in relation to every single witness.

Analysis
i) "State Parties"
Article 86 distinguishes between States Parties and third States. The general obligation to cooperate with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court applies only to States Parties. In principle, obligations cannot be imposed on other States.
    However, the Court may establish special cooperation with States non-party to the Statute as provided for in Article 87(5). Such special cooperation regimes are based on the consent of the involved State non-party. Turning to cases referred by the Security Council to the Court of non-States Parties one has to consider the treaty-based foundation of the ICC. Such states are subject to a different regime than Part 9 of the Rome Statute. In such cases, one could conceive at least three options on how the Security Council should deal with the obligations of non-State parties.
   The first scenario is that the UN Security Council would refer a situation to the Court with no instructions concerning cooperation. Such a blank referral would mean that States non-parties are under no obligation to assist the Court.
   A second scenario is that the Security Council decided that all UN members shall co-operate in accordance with the regime of the Rome Statute.
    Finally, the Security Council may shape a new co-operation regime, exceeding the obligations of the Rome Statute (Sluiter, 2002, 71–72).
    When the UN Security Council through resolution 1593(2005) referred the situation in Darfur to the Court it decided “that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant” to the resolution (Resolution 1593 (2005) UN Doc S/RES/1593, 2005). However, it is unclear what the Security Council meant by “full cooperation”. Although the Council recognized “that States not party to the Rome Statute have no obligation under the Statute” it urged “all States and concerned regional and other international organizations to cooperate fully”. The resolution with the referral of the situation in Libyan Arab Jamahiriya is drafted in an almost identical manner (Resolution 1970 (2011) UN Doc S/RES/1970, 2011).
   In comparison, Resolution 827(1993) setting up the ICTY is more substantial (Resolution 827 (1993) UN Doc S/RES/827, 1993, para. 4). The resolution provides an obligation for all states 1) to “cooperate fully” with the Tribunal, 2) to take any measures necessary under their domestic law to implement the provisions of the resolution, and 3) the obligation is given concrete content with the reference to Article 29 of the ICTY Statute.
   In relation to the referral of the Darfur situation, one may discuss whether resolution 1593(2005) establishes a cooperation regime that is similar to the vertical model of the ad hoc tribunals, the less vertical model of the ICC or an even weaker regime. Pre-Trial Chamber I has referred to provisions in Part 9 when dealing with execution of the arrest warrants concerning Harun and Kushayb (Prosecutor v. Harun and Kushayb, ICC PT. Ch. I, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07, 27 April 2007, 56–57; Sluiter, p. 2008). Trial Chamber IV in Banda and Jerbo did not find that resolution 1593(2005) provides for an autonomous legal regime for cooperation that would replace the ICC regime. Instead it argued that cooperation requests remained confined to the cooperation regime of part 9 of the Rome Statute (Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on "Defence 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", 1 July 2011, para. 15). The Pre-Trial Chamber in Gaddafi made a similar ruling when it stated that Part 9 is the legal framework within which Libya must comply with the surrender request (Prosecutor v. Gaddafi et al., ICC PT. Ch. I, Decision on Libya’s Submissions Regarding the Arrest of Saif Al-Islam Gaddafi, ICC-01/11-01/11, 7 March 2012, para. 12). A reasonable conclusion is that the Government of Sudan and State Parties are obligated to cooperate with the Court, while other non-state parties are only encouraged to cooperate with the Court. The same reasoning applies to the situation in Libyan Arab Jamahiriya. This does not necessarily exclude the possibility that the Security Council in the future might issue a resolution which entails binding obligations on non-state parties in general. Trial Chamber IV in Banda and Jerbo has stated that “the Security Council, acting under Chapter VII of the UN Charter, may oblige all UN members or some of them to cooperate with the Court in a given case, whether or not they are parties to the Statute” (Banda and Jerbo, ICC T. Ch. IV, 1 July 2011, para. 14). The logics of realpolitik may deny such orders, but an efficient cooperation regime is clearly in the interest of crime control.

ii) Meaning of cooperation
The reference in Article 86 to "the provisions of this Statute" indicates that the specific duties on cooperation are found elsewhere in the Statute. Thus Article 86 should be seen in the context of the subsequent rules in Part 9.

Doctrine:

Antonio Cassese, "The Statute of the International Criminal Court: Some Preliminary Reflections", European Journal of International Law, vol.10, 1999, pp. 144-171, p. 164.
Annalisa Ciampi, "Other Forms of Cooperation", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court - A Commentary, Second Edition, Oxford University Press, Oxford, 2002, p. 1706.
Jacob KatzCogan, "International Criminal Courts and Fair Trials: Difficulties and Prospects", Yale Journal of International Law, vol. 27, 2002, pp. 111-140, p. 119.
Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, p. 446.
Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 231, 235-237.
Claus Kreß/Kimberly Prost, "Article 86 - General Obligation to Cooperate", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Artcicle, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1513-1516.
Eric Mathias, "The Balance of Power Between the Police and the Public Prosecutor", in Mireille Delmas-Marty/J.R. Spencer (Eds.), European Criminal Procedures, Cambridge University Press, Cambridge, 2005, p. 459.
Christoph J.M. Safferling, Towards an International Criminal Procedure, Oxford University Press, Oxford, 2001, pp. 64-66.
Göran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States, Intersentia, Antwerpen/Oxford/New York, 2002.
Göran Sluiter, “Obtaining Cooperation from Sudan—Where is the Law?”, Journal of International Criminal Justice, vol. 6, no. 5, 2008, pp. 876–878.
Göran Sluiter, "Appearance of Witnesses and Unavailability of Subpoena Powers for the Court", in Roberto Bellello (Ed.), International Criminal Justice, Ashgate, Farnham, 2010, p. 461.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87

[681] Requests for cooperation: general provisions
General Remarks
Article 87 contains general provisions for Part 9 and empowers the Court to make requests for cooperation to States Parties and that it may seek assistance of non-States-Parties and intergovernmental organisations. It also includes a mechanism for non-compliance. The provision is quite detailed in its content dealing with language, communication and confidentiality. When referring to specific State obligations the Statute uses a more traditional terminology of judicial assistance (e.g. requests for assistance rather than binding orders). Rules 176-180 adresses technical concerns related to Article 87.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(1)

[682] 1. (a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession.

Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.

(b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.
The first paragraph provides for the procedure for requests for cooperation. The text of this provision is silent on which organ of the Court that has this authority, it depends on the nature of the request. The Registrar shall pursuant to Rule 176(2) transmit the requests for cooperation made by the Chambers.
The general principle is that requests shall be transmitted through the diplomatic channel. Other potential channels include the International Criminal Police Organization (Interpol) or any appropriate regional organization.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(2)

[683] 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession.

Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.
Requests for cooperation and any documents supporting the request may be in one of the one of the working languages of the Court, that is French or English. A State may also upon ratification, acceptance, approval or accession specify that it should be in the official language of the requested State. Rule 178 clarifies that when a requested State Party has more than one official language, it may indicate upon ratification, acceptance, approval or accession that requests for cooperation and any supporting documents can be drafted in any one of its official languages.
Considering that the provision concerns "requests for cooperation" in general, the language requirement should be interpreted to apply all requests under Part 9, including those to non-States Parties and intergovernmental organizations.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(3)

[684] 3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.
Paragraph 3 provides that a requested State shall keep confidential a request for cooperation. The provision uses the term "requested State" as opposed to "State Party" which suggests that this applies to all requests, including those submitted to a non-State Party.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(4)

[685] 4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.
This paragraph supplements Article 68 which provides for general protection for victims and witnesses. Both of provisions have a reference to the safety or physical or psychological well-being of concerned individuals.
Protection for victims and witnesses is applicable for all form of cooperation under Part 9. The provision also covers provision and handling of information.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(5)

[686] 5. (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.
A non-State party may pursuant to Article 12(3) accept the exercise of jurisdiction by the Court. This entails a duty to co-operate with the Court. The cooperation of third States may also be obtained by ad hoc agreements with the Court. Such agreements may thus provide a duty to cooperate with the Court. The existence and scope of this duty depend entirely on the content of the agreement. As such the co-operation relationship between the Court and States non-parties may be more reciprocal in nature.
Once a State has entered an ad hoc arrangement or an agreement with the Court, problems or failures are handled via the same channels as would be a problem with a State party. Arguably, it equally applies to the international obligations of a non-state party even when there is no ad hoc arrangement or an agreement but there is a UN Security Council resolution adopted under Chapter VII of the UN Charter. This finds support in the fact that the Prosecutor has reported to the UN Security Council Sudan’s failure to cooperate contrary to operative paragraph 2 of resolution 1593(2005).

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(6)

[687] 6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.
The word "may" is used as intergovernmental organizations are not under an obligation to cooperate under Part 9. However, they may similar to non-States Parties consent to cooperate with the Court. Moreover,international organisations may be under an obligation to cooperate following a decision of the Security Council (acting under Chapter VII of the UN Charter) or where it is possible to establish an obligation to cooperate under customary international law. If an organization is under such an obligation to cooperate, a reasonable conclusion is, in the light of Blaškić, that the Court “has the inherent power to make a finding as to the organization’s failure to cooperate” (Prosecutor v. Blaškić, ICTY A. Ch., 29 October 1997, para. 33).
From the reference "competence or mandate" of the organization follows that the Court should not ask an intergovernmental organization to cooperate in way that would entail an ultra vires act.
Article 87(6) is similar to Article 54(3)(c) which provides that the prosecutor may “[s]eek the cooperation of any . . . intergovernmental organization or arrangement in accordance with its respective competence and/or mandate”. The term “arrangements” was added to include peacekeeping forces. The assumption during the negotiations was that the Court could cooperate with peacekeeping forces, even in the absence of the use of the term “arrangements” (Kreß and Prost, p. 1527; Ciampi, p. 1621). For example, in Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on Defense Requests for Disclosure of Materials, 17 November 2006, PTC I ordered the Registrar to immediately send a cooperation request to the United Nations in order to obtain notes of interviews of MONUC officials.

Author: Mark Klamberg

Updated: 30 June 2016

Article 87(7)

[688] 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
Where a State Party fails to comply with a request to cooperate by the Court, the Court has the power, in a procedure similar to that of the ad hoc tribunals, to make a judicial finding and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
   Moreover, when a State denies a request for assistance it shall pursuant to Article 93(6) inform the Court or the prosecutor of the reasons for such denial. In addition to making findings of non-compliance, the Court may also proceed with a) further consultations with the State, or b) deducing the existence or non-existence of a fact which may have implications for the question of guilt of an accused person.
   Regulation 109 (3) contains the obligation that the State concerned must be heard prior to a finding of non-compliance.
   In Prosecutor v. Bashir, ICC PT. Ch. I, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir including Annexes & Corrigenda, 12 December 2011, Malawi, relied on Article 98(1) of the Statute to justify its refusal to comply with the Cooperation Requests with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir. The Pre-Trial Chamber found "that customary international law creates an exception to Head of State immunity when international courts seek a Head of State's arrest for the commission of international crimes. There is no conflict between Malawi's obligations towards the Court and its obligations under customary international law; therefore, Article 98(1) of the Statute does not apply." (para. 43) The Chamber therefore found, "in accordance with Article 87(7) of the Statute that the Republic of Malawi has failed to comply with the Cooperation Requests contrary to the provisions of the Statute and has thereby prevented the Court from exercising its functions and powers under this Statute. The Chamber decides to refer the matter both to the United Nations Security Council and to the Assembly of States Parties." (para. 46)

Cross-references:
Rules 176, 177, 178 , 179 and 180
Regulation 109

Doctrine:

Karin N. Calvo-Goller, The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents, Koninklijke Brill NV, Leiden, 2006, p. 207.
Annalisa Ciampi, "The obligation to Cooperate", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Cour - A Commentary, Second Edition, Oxford University Press, Oxford, 2002, p. 1621.
Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden: 2013, pp. 235, 248, 249, 257 and 260.
Claus Kreß/Kimberly Prost, “Article 87—Request for Cooperation: General Provisions”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1517-1531.
Richard May/Marieke Wierda, International Criminal Evidence, Transnational Publishers, New York, 2002, p. 68.
William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 978-985.

Author: Mark Klamberg

Uodated: 30 June 2016

Article 88

[689] Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.
General Remarks
An international court requires effective cooperation by States to achieve its goal to bring perpetrators of international crimes to justice. It is for that matter that Article 86 proclaims a general obligation of the States Parties to cooperate. A pre-condition for a successful and timely cooperation is the existence of sufficient procedures in place. This holds especially true when it comes to matters of arrest and surrender. Such matters are by their very nature of a certain urgency. Sensitive issues such as arrest (Article 89), evidence gathering, searches and seizures, protection of witnesses or freezing of assets (Article 93 (1)) require a balancing act that allows the Court to call for an active contribution of the States in the international fight for justice and, at the same time, guarantees that the rights accorded to a suspect under national law and the sovereignty of the State be respected as far as possible. Such a balancing act can hardly be achieved on an ad hoc basis. Article 88 takes this fact into account and obliges the States Parties to ensure that procedures for an effective cooperation are made available under their national law. The intention is to instigate a quick implementation [Ciampi, 2002, p. 1626].

Preparatory Works
Article 88 was subject to much debate during the negotiations at Rome. Reason for the discussion is a fundamental disaccord about the nature of the entire cooperation regime of the Court. Some States favoured a horizontal approach that would grant more leeway to the requested State which would remain ‘in control’ over the degree of cooperation [Kreß/Prost, 2016, Article 88, para. 2]. Others emphasized the need for a vertical cooperation regime with a direct execution of decisions by the Court in the national context [Kreß/Prost, 2016, Article 88, para. 2]. The proponents of a vertical approach highlighted the risks a reference to national laws might entail and warned that States could provide less than full cooperation by applying provisions in bad faith or by claiming national exceptions on the basis of the national legal or constitutional framework [Kreß/Prost, 2016, Article 88, para. 2]. The compromise is highlighted in Article 89 (1) and Article 93 (1) which both make reference to the provisions of the Statute as well as national laws [Schabas, 2016, Article 88, p. 1280]. Article 88 was included to further highlight the fact that the State cannot refuse cooperation by arguing insufficient or conflicting national laws [Kreß/Prost, 2016, Article 88, para. 3]. Due to Article 88 the State can only invoke limits imposed by its national laws where such limitations are explicitly recognized by the Statute [Raspail, 2012, Article 88, p. 1829], such as in Article 93 (1)(l). The obligations to cooperate are therefore the same for all States Parties [Kreß/Prost, 2016, Article 88, para. 3; Raspail, 2012, Article 88, p. 1826]. Article 88 reaffirms the primacy of international law over the national legal system [Raspail, 2012, Article 88, p. 1826]. As a matter of international law, Part IX of the Statute has no direct effect on the national level [Raspail, 2012, Article 88, p. 1826]. The effect of international law on the national level depends on the constitutional approach taken by the respective State [Raspail, 2012, Article 88, p. 1827]. Kreß and Prost [Kreß/Prost, 2016, Article 88, para. 3] highlight the origin of the provision in Article 5 (3) of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances [see UN Doc. E/CONF.82/15]. The final version is based on a proposal introduced by Canada at the Rome Conference [Schabas, 2016, Article 88, p. 1280, 1281 with further references to the discussions].

Author:
Mayeul Hiéramente States Parties C.

Updated:
21 August 2017

Article 88 - State Parties

[689.1] State Parties
Article 88 sets out an obligation to implement a cooperation regime under national law. The norm imposes an obligation on States Parties to the Rome Statute. While non-States Parties can be under an obligation to cooperate with the ICC by virtue of a Security Council resolution [see e.g. Reisinger-Coracini, 2013, p. 101 et seq.; UN Security Council Resolution 1593/2005: “Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully [...].“; UN Security Council Resolution 1970/2011: „Decides that the Libyan authorities shall cooperate fully [...].“; Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, ICC PT. Ch. I, Decision on Libya’s Submissions Regarding the Arrest of Saif al-Islam Gaddafi, ICC-01/11-01/11-72, 7 March 2012, para. 12], same does not apply to the implementation obligation under Article 88. It is difficult to assume that the obligation to cooperate with the Court imposed by virtue of Chapter VII of the UN Charter for a specific situation could oblige a non-States Party to incorporate specific rules for cooperation with the Court into its domestic law.

Author:
Mayeul Hiéramente

Updated:
21 August 2017

Article 88 - shall ensure that there are procedures available under their national law

[689.2] shall ensure that there are procedures available under their national law
Article 88 seems rather easy to interpret and apply in practice. The Court has noted that the provisions of Article 88 and Article 89 (1) ‘do not make cooperation with the Court contingent on a State Party choosing to put in place the related national procedures [...].’ [Prosecutor v. al-Bashir, ICC PT Ch. II, Decision on the non-compliance by the Republic of Djibouti with the request for arrest and surrender Omar Al-Bashir to the Court and referring the matters to the United Nations Security Council and the Assembly of States Parties to the Rome Statute, ICC-02/05-01/09-266, 11 July 2016, para. 10]. The fact that a State decides not to implement the necessary national legislation cannot serve as a justification for a refusal to comply with a request for surrender [Reisinger-Coracini, 2013, p. 99; Meißner, 2003, p. 44; Ambos, 2016, p. 602; Ciampi, 2002, p. 1630]. Same holds true if the national procedures in place (or an interpretation thereof) show deficiencies that hinder the cooperation or endanger a timely compliance with requests for assistance [Prosecutor v. Kenyatta, ICC Tr. Ch. V(b), Decision on Prosecution’s Application for a finding of non-compliance pursuant to Article87 (7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908, 31 March 2014, para. 47]. This approach has a practical advantage since it relieves the Court from the duty to interpret national laws. Trial Chamber V(b) notes [para. 47]:

„The Chamber finds it unnecessary to consider whether or not the Intemational Crimes Act and other Kenyan domestic legislation provides a sufficient basis for executing cooperation requests under Part 9 of the Statute. Any purported deficiency in domestic legal procedures (or interpretation thereof), cannot be raised as a shield to protect a State Party from its obligation to cooperate with the Court [...].“

By refusing to accept deficiencies of the national legal system to justify a failure to comply with the cooperation obligations of the Statute, the Court emphasizes that States, upon signature of the Statute, are bound by the principle of pacta sunt servanda. Generally speaking, it is a common feature of international treaties that States are not entitled to invoke limitations imposed by their national laws.
   The interesting question is whether States are obliged to anticipate (potential) future conflicts between the obligations imposed on the State by virtue of the Statute on the one side and national laws that might bind the national authorities involved in the process of arrest and surrender on the other [Raspail, 2012, Article 88, p. 1830]. Raspail has convincingly argued that Article 88 does not entail an obligation to provide for a detailed and specific regulatory framework [Raspail, 2012, Article 88, p. 1827]. She emphasizes that a special law regulating the future cooperation with the Court is not warranted for all national legal systems. Raspail rightly reminds us that the legal and constitutional system might differ significantly [Raspail, 2012, Article 88, p. 1826 et seq.]. Some constitutions accentuate the importance of international law and allow for a direct application of international norms in the national context, other States follow a strict dualist approach requiring the implementation of international norms by the national legislator. Due to the variety of legal systems and constitutional arrangements [Meißner, 2003, p. 44] a one-size-fits-all approach is not possible. Article 88 imposes an obligation to guarantee the result and refrains from detailed guidelines [Meißner, 2003, p. 44]. It is an obligation of result, not one of conduct [Schabas, 2016, Article 88, p. 1281; Ciampi, 2002, p. 1625; Ambos, 2016, p. 604]. It is the sovereign right of the States Parties to decide how to implement the obligations contained in Part IX of the Statute. Many States have opted for specific legislation implementing Part IX [for a detailed overview see Schabas, 2016, Article 88, p. 1282 et seq.; Ambos, 2016, pp. 608 et seq.]. From a practitioner’s perspective such ICC specific laws are to be applauded as they provide for greater transparency and guidance for the national authorities tasked with handling a Court request [Kreß/Prost, 2016, Article 88, para. 7]. A State might, however, opt for a different approach or even decide on a monist approach and accord decisions by the Court and the obligations contained in Part IX primacy over their own national laws [see Raspail, 2012, Article 88, p. 1827].
   The fact that a specific implementation law is not required by virtue of Article 88 does, however, not imply that the States Parties face no obligation at all to make the necessary legal arrangements. The wording of Article 88 clearly indicates that the Statute requires an active review on the part of the State to assess whether the national legal framework can guarantee the availability of the necessary procedures [Kreß/Prost, 2016, Article 88, para. 4; Meißner, 2003, p. 44]. Raspail points out that the wording suggests the idea of an ‘effet utile’ and an obligation to anticipate and clear any barriers imposed by national law [Raspail, 2012, Article 88, p. 1831]. If the State, upon the necessary review of its laws, is made aware of any provisions that could hinder the national authorities to accommodate a request by the Court, the State has to take the necessary (legislative) steps to pre-empt such a conflict by adapting its national legislation [Raspail, 2012 Article 88, p. 1832]. Kreß and Prost [Kreß/Prost, 2016, Article 88, para. 4] note that the State remains free to decide how to ensure compliance with cooperation requests by the Court: through legislation, treaty implementation or through administrative practices. The necessary adaptations might also encompass changes to the substantive law [Meißner, 2003, p. 44] if the relevant procedural rules, especially those allowing for a deprivation of liberty, refer to the corpus of substantive law. A State might even opt for a memorandum of understanding with the Court [Reisinger-Coracini, 2013, p. 99].
   If a State fails to comply with a request due to incompatibilities in its national legal system, such failure amounts to a breach of the Rome Statute [Schabas, 2016, Article 88, p. 1281] and can lead to a finding of non-compliance, Article 87 (7). This is not subject to much debate [see Raspail, 2012, Article 88, p. 1831 et seq.]. The question arises whether the mere inaction of the State in and of itself constitutes a violation of Article 88 and merits a finding of non-compliance by the Court [see Ciampi, 2006, p. 723]. As has been discussed above, Article 88 encompasses an obligation which is distinct from the obligation to comply with a concrete cooperation request. Duffy and Huston [Duffy/Huston, 2000, p. 34; see also Raspail, Article 88, p. 1832] therefore advance the argument that a refusal by the State to make the necessary adaptations is in itself incompatible with the international obligation and constitutes a violation of the treaty. This would at least be the case where the law renders a required form of cooperation impossible [Duffy/Huston, 2000, p. 34]. The consequences of a violation of Article 88, without a failure to comply with a request by the Court warrants, are far from clear. The wording of Article 87(7) allows only for a finding of non-compliance if the State fails to comply with a request for cooperation [Raspail, 2012, Article 88, p. 1832]. A settlement of disputes pursuant to Article 119 does also not seem warranted [Raspail, 2012, Article 88, p. 1832]. Finally, the Court lacks a general competence to review national legislation and administrative practices [Raspail, 2012, Article 88, p. 1833]. It is therefore unlikely that a violation of the general obligation enshrined in Article 88 will be established or even sanctioned. In the Kenyatta case [Prosecutor v. Kenyatta, Tr. Cg. V (b), Decision on Prosecution’s Application for a finding of non-compliance under Article 87 (7) of the Statute, ICC-01/09-02/11-982, 3 December 2014, para. 41], the Trial Chamber V(b) has noted in this regard:

“Where the requested State asserts that non-compliance is as a result of lack of capacity, the Chamber has to consider whether such inability is genuine and well- founded. The Chamber will first consider whether the requested State has complied with its obligation under Article 88 of the Statute which provides that 'States Parties shall ensure that there are procedures available under their national law for all forms of cooperation which are specified under [Part 9 of the Statute]'. If the Chamber is satisfied that the requested State has fulfilled the requirements under Article 88 of the Statute (which in itself involves a margin of assessment), the Chamber still may consider whether there is a persuasive reason why the State lacks capacity to comply with the cooperation request. This inquiry is a case-specific one, depending on the nature of the request concerned and the specific circumstances of the requested State, including whether the requested State made bona fide efforts to overcome any difficulties encountered. Therefore, where the non-compliance arises from a genuine and demonstrated lack of capacity or ability, the Chamber may decide that such non- compliance will not amount to that required under the first part of Article 87(7) of the Statute.”

The Trial Chamber highlights three important facts. First, an assessment pursuant to Article 87(7) only refers to a specific request for cooperation. In order to assess whether to issue a finding of non-compliance the Chamber may take into consideration whether the State generally fulfilled its obligations under Article 88. Second, the Chamber notes that Article 88 grants the State a margin of assessment and does therefore not stipulate the steps to be taken. Third, any assessment under Article 87 (7) is case-specific. This should rule out that a simple violation of the anticipatory obligation laid down in Article 88 will be subject to review. For lack of legal options to review compliance, it is up to the Registrar [Schabas, 2016, Article 88, p. 1283] to remain in contact with national authorities to improve the cooperation regime. As outlined by Schabas [Schabas, 2016, Article 88, p. 1282], the Assembly of States Parties encourages and assists any reform in this regard. It supports any improvements of an effective functioning of the Court [Reisinger-Coracini, 2013, p. 110].

Author:
Mayeul Hiéramente

Updated:
21 August 2017

Article 88 - for all of the forms of cooperation which are specified under this Part.

[689.3] for all of the forms of cooperation which are specified under this Part.
The obligation enshrined in Article 88 refers to all the forms of cooperation in Part IX of the Statute. The focus lays on the arrest and surrender (Article 89(1)), the provisional arrest (Article 92) and the transit (Article 89 (3)) of a person sought for surrender to the Court. Article 88 also refers to the other forms of cooperation enumerated in Article 93 (1). It has to be specified that Article 88 imposes no additional obligation regarding ‘any other type of assistance’ as laid down in Article 93 (1)(l). Such assistance is dependent on the national law of the requested State [Kreß/Prost, 2016, Article 88, para. 5; Meißner, 2003, p. 44; Prosecutor v. Ruto and Sang, Prosecutor, Prosecution consolidated response to Mr. Ruto and Mr. Sang’s appeals against the “Decision on the Prosecutor’s application for Witness Summonses and Resulting Request for State Party Cooperation”, ICC-01/09-01/11-1380, 20 June 2014, p. 15, footnote 66]. The Court cannot impose an obligation to accommodate for such judicial assistance. States Parties are required to provide assistance with the investigative measures indicated in Article 93 (1) (a)-(k). The Statute is mute as to the exact contours and conditions. Meißner therefore argues that the obligation under Article 88 only requires the States Parties to allow for these ‘types’ of measures without imposing any concrete specifications [Meißner, 2003, p. 44]. Articles 86 and 88 require, however, that the State makes bona fide effort to allow for an effective compliance.

Cross References
Article 87(7), Article 89 (1), Article 93 (1),

(c) A person being transported shall be detained in custody during the period of transit;

(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;

(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
States Parties are under an obligation to authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.

Author: Mark Klamberg

Updated: 30 June 2016

Article 89(4)

[695] 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.
The fourth paragraph concerns the situation where the person whose surrender is sought is already serving a sentence in the requested state for a crime different from that for which surrender to the Court is sought. In such situation the requested State "shall consult" with the court, which suggests that the requested State has discretion to decide on the question of surrender. This would be at odds with the general rule that States have to comply with requests for surrender.
Article 89(4) is the result of a debate during the negotiations to allow "temporary surrender", see Article 87(8) of the Draft Statute (Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2). No agreement on temporart surrender was possible, the issue was left to resolve for the Court and States concerned (Kreß & Prost, p. 1547).

Cross-references:
Rules 176, 181, 182, 183 and 184
Regulation 111

Doctrine:

Karel De Meester et al., "Investigation, Coercive Measures, Arrest and Surrender", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 171-379.
Claus Kreß/Kimberly Prost, “Article 89—Surrender of Persons to the Court”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1537-1548.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 993-1000.

Author: Mark Klamberg

Updated: 30 June 2016

Article 90

[696] Competing requests
General Remarks
Article 90 deals with the issue of competing requests. The substantial disagreement during the negotiations was whether the requested State's obligation vis-à-vis the Court should be greater, lesser or equal obligation owed to a State. Factors that were considered included: whether the competing request was from a State Party or a non-State Party, whether the competing request was based on a treaty obligation or not and whether the competing request concerned the same alleged conduct.

Author: Mark Klamberg

Updated: 30 June 2016

Article 90(1)

[697] 1. A State Party which receives a request from the Court for the surrender of a person under Article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.
The use of the words "any other State" mean that the first paragraph applies to ll competing requests, irrespective of whether the competing request is from a State Party or a non-State party. There is an obligation in cases of competing requests or the requsted State to notify Curt and the requesting State of that fact.

Author: Mark Klamberg

Updated: 30 June 2016

Article 90(2)

[698] 2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a) The Court has, pursuant to Article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.
The second paragrah makes reference to Article 18 and 19 which deal wih admissibility and together with Article 17 express and regulate the complementarity principle.
If the requesting State is a State Party, the requested State shall give priority to the request from the Court if the case is admissible. If the requesting state has jurisdiction over the crime and is not unwilling or unable to investigate or prosecute, it follows from article 17 that the case is inadmissible. In practice, this means that Article 90(2) requires the Court to determine whether the requsting State is unwilling or unable to investigate or prosecute (Schabas, pp. 1004-1005).

Author: Mark Klamberg

Updated: 30 June 2016

Article 90(3)

Updated: 30 June 2016

Article 90(8)

[704] 8. Where pursuant to a notification under this Article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.
This paragraph concerns scenarios where the Court has declared a case inadmissible and extradition to the requesting State has failed. Such cases are of interest to the Court and warrants a provision on notification because failed extradition to a case may motivate the Court to reconsider its ruling on admissibility. Rule 186 provides that "the requested State shall provide the notification of its decision to the Prosecutor in order to enable him or her to act in accordance with Article 19, paragraph 10".

Cross-references:
Rule 186

Doctrine:

Claus Kreß/Kimberly Prost, “Article 90—Competing Requests”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1549-1557.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1001-1006.

Author: Mark Klamberg

Updated: 30 June 2016

Article 91

[705] Contents of request for arrest and surrender
General Remarks
Article 91 provides detailed requirements on the content of applications for arrest and surrender. This provision should be read together with Article 58 which, inter alia, concerns issuance by the Pre-Trial Chamber of a warrant of arrest.

Preparatory works
The controversial issue of evidentiary requirements for requests for surrender as during the negotiations was less a question whether the cooperation regime should be horizontal or vertical, it was more a question of tradition where common law jurisdictions are generally more demanding (Schabas, p. 1008).
Article 88(1)(b)(v) and (c)(ii) of the Draft Statute contained provisions in brackets that reflected requirements for the production of eboidemce by the Court (Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2).
Some civil countries opposed the inclusion of such requirements (Kreß & Prost, p. 1560). In the end a compromise was agreed upon as formulated in Article 91(2)(c).

Author: Mark Klamberg

Updated: 30 June 2016

Article 91(1)

[706] 1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in Article 87, paragraph 1 (a).
The request for arrest and surrender must be made in writing.
In urgent cases, a request may be made by any medium capable of delivering a written record, such as a fax machine or electronic communication system. Such communication should be followed by confirmation through the diplomatic channel or any other appropriate channel as stipulated in Article 87(1)(a).

Author: Mark Klamberg

Updated: 30 June 2016

Article 91(2)

[707] 2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under Article 58, the request shall contain or be supported by:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A copy of the warrant of arrest; and

(c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.
The content of the request depends on whether it concerns a request for the arrest and surrender of a person for whom a warrant of arrest has been issued (regulated in paragraph 2) and request for the arrest and surrender of a person already convicted (regulated in paragraph 3).
If the request concerns a request for the arrest and surrender of a person for whom a warrant of arrest has been issued, it must contain: information describing the person sought, a copy of the warrant of arrest and documents in support of the request necessary to meet the requirement of the requested state.
Sub-paragraph 2(c) allows states to require production of documents in support of the request. It does not specify the exact standard of proof that is relevant in such procedures, that may vary depending on the requested State. However, there quirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.

Author: Mark Klamberg

Updated: 30 June 2016

Article 91(3)

[708] 3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by:

(a) A copy of any warrant of arrest for that person;

(b) A copy of the judgement of conviction;

(c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and

(d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served.
If the request for the arrest and surrender concerns a person already convicted, the request shall contain or be supported by: a copy of any warrant of arrest for that person, copy of the judgement of conviction, and information to demonstrate that the person sought is the one referred to in the judgement of conviction. If the person sought has been sentenced, information on the sentence and time already served should be provided.

Author: Mark Klamberg

Updated: 30 June 2016

Article 91(4)

[709] 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
The Court may request a State Party to consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). This paragraph was included as a part of the compromise in relation to evidentiary requirements to allow consultations on the requirements under national law for the production of evidence (Kreß & Prost, pp. 1563-1564).

Cross-references:
Rule 187

Doctrine:

Claus Kreß/Kimberly Prost, “Article 91—Contents of Request for Arrest and Surrender”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1559-1564.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1007-1010.

Doctrine:

Claus Kreß/Kimberly Prost, “Article 92—Provisional Arrest”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1565-1568.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1011-1010.

Author: Mark Klamberg

Updated: 30 June 2016

Article 93(1)

[715] Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
Article 93(1)(a-l) deals with general assistance between the Court and State Parties aside from surrender of persons. It provides a detailed and broad list of the various types of assistance in relation to investigations or prosecutions. The wording does not focus solely on legal assistance but refers broadly to any type of assistance, and could for example cover infrastructure to conduct inquiries on the territory of the requested State. To a great extent the types of assistance was drawn from the UN Model Treaty on Mutual Legal Assistance in Criminal Matters and the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Most of the listed measures of assistance are self-explanatory and require no particular comment.

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(1)(a)

[716] (a) The identification and whereabouts of persons or the location of items;
The wording “identification and whereabouts of persons” make no distinction between a person being a suspect, a victim or a witness. The use of the word “location of items” in the same subparagraph restricts the cooperation to mobile objects only.

Author: Karin Påle-Bartes

Updated: 30 June 2016

[720] (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
Even though the list of forms of legal assistance is broad, it is worth noting that the Article does not oblige States Parties to compel witnesses before the Court if so requested. The non-inclusion of a State obligation to compel testimony at trial has been considered a weakness of the cooperation schema. Subparagraph (e) only requires the States Parties to assist in facilitating the voluntary appearance of persons and witnesses or experts before the Court, that is to encourage a witness or an expert to appear before the Court. When it comes to bearing the costs for a witness or an expert Article 100 deals with this particular issue.
According to one view there is, on top of the absence of a State duty to compel a witness to appear and to testify before the Court, an individual right of persons not to appear and testify before the Court. This rights is considered to derive from paragraph 7. Under this provision a person in custody in the requested state may be transferred to the Court only if the person consents and the same must e fortiori be true for all other witnesses the argument goes. The view has been criticized for giving far too much prominence to a provision that deals with a very specific procedural scenario.
Even if individuals may not be forced to testify, Article 93(1) however sets out an effective framework for obtaining evidence. For example States may be required to assist in “execution of searches and seizure”, “provision of records and documents, including official records and documents and identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeit” (sub-paragraphs (h), (i) and (k)).

Cross-references:
Rules 74 and 190

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(1)(f)

[721] (f) The temporary transfer of persons as provided in paragraph 7;
Subparagraph (f) makes a reference to the temporary transfer of persons as pro-vided in paragraph 7. Since this was not a concept that many States were familiar or comfortable with, a separate paragraph 7 was created to deal with the procedure for this type of assistance.

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(1)(g)

[722] (g) The examination of places or sites, including the exhumation and examination of grave sites;
According to subparagraph (g) States Parties are obliged to comply with requests to examine sites and places on its territory, including exhumation and examination of grave sites. This is probably one of the most important and common types of assistance which the Court may seek.

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(1)(h)

[723] (h) The execution of searches and seizures;
The Court may request searches and seizure according to subparagraph (h). Such requests will be executed according to the procedures of the national law of the requested State. All States must have a procedure in place for search and seizure according to Article 88.

Author: Karin Påle-Bartes

Updated: 30 June 2016

[728] 2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
Bilateral and multilateral treaties in the field of mutual legal assistance usually provide for an assurance to a witness or an expert that they will not be prosecuted or otherwise detained with respect to an act or omission preceding their departure from the requested State. According to paragraph (2) the Court is merely empowered to provide such an assurance at its discretion. It has been described as a power likely to be used to obtain evidence from lower-level alleged perpetrators who are reluctant to testify against their superiors. In Prosecutor v. Katanga and Ngudjolo, ICC T. Ch., Decision on the request of the Defence for Mathieu Ngudjolo to obtain assurances with respect to self-incrimination for the accused, 13 September 2011, para 1, the Trial Chamber stated that the position of an accused who chooses to testify in his own defence cannot be systematically equated to that of any other witness. The Trial Chamber found that Article 93(2) and rule 74 is not applicable to the accused and rejected the request.

Cross-reference:
Rule 191

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(3)

[729] 3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
There are only three limited exceptions when States Parties can deny a request for cooperation presented by the Court (paragraphs 4-6). Article 93 has therefor been considered to be a rather strong regime for cooperation. Compared to a lot of other mutual assistance treaties it is worth mentioning that assistance may not be refused be-cause the offense is characterized as a political, military or fiscal offense. There are no general provisions allowing for refusal when the execution of the request would be contrary to the ordre public or sovereignty of public interest of the state.
Paragraph (3) provides that where a particular measure sought in a specific request is prohibited by existing national law the requested State would have to comply with the request, unless it successfully convinces the Court that the requested measure violates a fundamental principle of general application. This means that not any prohibition can be referred to. The prohibition must rather possess a constitutional or quasi-constitutional status. Under those circumstances the requested State and the Court would consult in order to resolve the conflict. The State must consider whether cooperation can be provided subject to specified conditions or in an alternative manner. The provision emphasizes the presumption that both the Court and the State will act in good faith and try to find acceptable solutions.

Author: Karin Påle-Bartes

Updated: 30 January 2016

[733] 7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
   (i) The person freely gives his or her informed consent to the transfer; and
   (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
The possibility of temporary transfer of a person in custody is featured in many mutual legal assistance schemes. Under paragraph (7) it is possible for a State to transfer an individual who is in custody for purposes of identification or to testify or provide other forms of assistance if the person is notified about the purpose of the transfer and its legal and factual consequences and the person consents to the transfer.
   Further the State must also agree to the transfer. The transfer of a person in custody always raises security issues and in some cases, the security risk may be too great to permit the transfer. In most cases the Court can request the taking of evidence from the person under paragraph 1 (b), as an alternative.
   The paragraph does not provide grounds for denial of transfer; but the general obligation to cooperate would require the clear and serious reason for such a refusal.
   The person who is transferred remains in custody and is, according to the para-graph, returned without delay to the State once the purposes of transfer has been completed. In Prosecutor v. Katanga and Ngudjolo, ICC T. Ch., Decision on an Amicus Curiae application and on the “Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins d'asile” (Articles 68 and 93(7) of the Statute), 9 June 2011, however the Trial Chamber considered whether an immediate application of Article 93(7)) would not constitute a violation of three detained witnesses right to apply for asylum. If the witnesses were to be returned to the Democratic Republic of Congo immediately, it would become impossible for them to exercise their right to apply for asylum in the Netherlands. As matters stood at the time, The Chamber was unable to apply Article 93(7) of the Statute in conditions which are consistent with internationally recognized human rights, as required by Article 21(3). The Chamber considered that it was incumbent upon the Registrar to authorise contact between the detained witnesses and their Dutch Counsel within the detention Center as soon as possible (paras. 72-73 and 78).
   The paragraph does not cover the situation of temporary transfer of a person who is serving a sentence imposed by the Court. The Rules of Procedure and Evidence, Rule 193, specify, that the paragraph shall not apply when it comes to the temporary transfer of a person who is serving a sentence imposed by the Court for the purpose of testifying or for other matters related to legal assistance. In such a case it would not be possible for the State to authorize the transfer to the Court.

Cross-references:
1. Rule 192
2. Rule 193

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(8)

[734] 8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
Further paragraph (8) creates a possibility of confidentiality with respect to documents and information. If a state requires confidentiality the Prosecutor may use such documents or information only for the purpose of generating new evidence. The first trial before the Court, Prosecutor v. Lubanga (ICC-01/04-01/06) was nearly aborted entirely because documents were provided to the Prosecutor on this basis. However, it is possible for the requested State to subsequently agree to disclosure of the documents and information that it has furnished on a confidential basis. These may then be submitted as evidence in the trial.'

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(9)

[735] 9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in Article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
Paragraph (9) deals with a procedure in the case of competing requests. If both requests cannot be met satisfactorily, the issue is to be resolved in accordance with the principles set out in Article 90 of the Statute, which deals with competing requests for arrest and surrender.

Cross-reference:
Article 90

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 93(10)

[736] 10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
      a. The transmission of statements, documents or other types of
      evidence obtained in the course of an investigation or a trial
      conducted by the Court; and

b. The questioning of any person detained by order of the Court;

(ii) In the case of assistance under subparagraph (b) (i) a:

      a. If the documents or other types of evidence have been obtained
     with the assistance of a State, such transmission shall require the
     consent of that State;

      b. If the statements, documents or other types of evidence have been
      provided by a witness or expert, such transmission shall be subject to
      the provisions of Article 68.

      (c) The Court may, under the conditions set out in this paragraph,
      grant a request for assistance under this paragraph from a State
      which is not a Party to this Statute.
Paragraph (10) makes some provisions for the Court to assist a State Party that is conducting an investigation or a trial with respect to conduct that constitutes a crime within the jurisdiction of the Court or “a serious crime under the national law of the requesting state”. The provision makes it possible even for States not Parties to the Statute to seek assistance by the Court. Under such circumstances the Court has the complete discretion to comply with such a request or not. Paragraph (10) does not cover a request for assistance to the Court by international organizations as they do not normally have the power to conduct criminal investigations and proceedings. However Article 93 does not prohibit the Court from disclosing information to an international organization. The compliance with such a request is at the discretion of the Court.
   A request for cooperation has been rejected when there is or has not been an ongoing investigation with respect to either “conduct” constituting a crime set out in Article 5 of the Statute, or in relation to “a serious crime under the national law of the requesting State. This was the case in Situation in Kenya, Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence, 29 June 2011.

Cross-references:
1. Articles 88, 100
2. Rule 194
3. Regulation 108

Doctrine:

Annalusa Ciampi, “Other Forms of Cooperation”, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 1705-1747.
Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Second Edition, Cambridge University Press, Cambridge, 2010, pp. 509-530.
Frederik Harhoff/Phakiso Mochocko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (Ed.), The International Criminal Court. Elements of Crime and Rules of Procedure and Evidence, 2001, PP. 637-670.
Claus Kreβ/Kimberly Prost, "Article 93 - Other Forms of Cooperation”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1569-1588.
Mark Klamberg, Evidence in International Criminal Trials, Martinus Nijhoff Publishers, Leiden, 2013, pp. 235, 242, 244-246, 253, 257, 276 and 462
Karel de Mester et al., “Non-Custodial Coercive Investigative Acts”, in Göran Sluiter et al., International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 292-298.
Phakiso Mochocko, “International Cooperation and Judicial Assistance”, in Roy S. Lee (Ed.), The International Criminal Court: the Making of the Rome Statute: Issues, Negotiations and Results, 305-317, Kluwer Law International, The Hague, 1999, pp. 305-317.
William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1015-1025.
Göran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States, Intersentia, Antwerpen/Oxford/New York, 2002.

Author: Karin Påle-Bartes

Updated: 30 June 2016

Article 94

[737] Postponement of execution of a request in respect of ongoing investigation or prosecution
General Remarks
The provision takes note of the fact that a cooperation request by the Court might negatively impact ongoing investigations or prosecutions by the national judicial system. It accommodates the needs of the requested State by granting a temporary right to refuse cooperation with the Court. The relevance of this provision has been comparatively minor so far. Together with Articles 89 (2), Article 89 (4) and Article 95 it allows for the postponement of cooperation in the sovereign interest of the requested State [Détais, 2012, Article 94, p. 1893].

Preparatory Works
The final version of Article 94 is the result of long negotiations that involved different approaches to requests for judicial assistance (‘other forms of assistance’). The final version of the provision only emerged late in the proceedings [Schabas, 2016, Article 94, p. 1329] and clarified three major points: it was decided that the provision would be worded in a way to articulate that a cooperation request could only be delayed but not refused altogether [Schabas, 2016, Article 94, p. 1329; Kreß/Prost, 2016, Article 94, para. 2]. The conditions for such a postponement were explicitly laid down in a separate provision that was then placed after Article 93 dealing with judicial assistance [Schabas, 2016, Article 94, p. 1329; Détais, 2012, Article 94, p. 1894; see draft Article 90(a) and footnote 6 in the Report of the Working Group on International Cooperation and Judicial Assistance, ,A/CONF.183/C.1/WGIC/L.11/ADD.2, 13 July 1998]. It was further emphasized that the timing should be agreed upon by the requested State and the Court to avoid unnecessary delays [Kreß/Prost, 2016, Article 94, para. 3].

Author:
Mayeul Hiéramen

Updated:
24 August 2017

Article 94(1) -If the immediate execution of...

[738] 1. If the immediate execution of
Analysis
Article 94 (1) provides for a right to postpone the cooperation. Paragraph 2 envisages a residual right of the Prosecutor to preserve evidence. It is addressed to all States [Kreß/Prost, 2016, Article 94, para. 7; Détais, 2012, Article 94, p. 1894].

Immediate execution
The fact that Article 94 (1) refers to an “immediate execution” and immediate assistance highlights that cooperation requests pursuant to Article 93 are to be executed without any delay. The complex and often transnational nature of the crimes as well as the intricacies of investigations into such crimes require that the Court can rely on the States Parties to gather evidence.

Author:
Mayeul Hieramente

Updated:
24 August 2017

Article 94(1) - a request

[738.1] a request
Article 94 (1) refers to a request but does not specify the type of the request. The reference in Article 94 (1) suggests that the provision addresses a cooperation request under Article 93 which regulates the “assistance” in relation to investigations or prosecutions. Pre-Trial Chamber I [Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, ICC PT. Ch. I, Decision on Libya’s Submissions Regarding the Arrest of Saif al-Islam Gaddafi, ICC-01/11-01/11-72, 7 March 2012, paras. 15; see also Prosecutor v. Blé Goudé, PT. Ch. I, Decision on Côte d’Ivoire’s request to postpone the surrender of Charles Blé Goudé to the Court, ICC-02/11-02/11-41, 3 March 2014, paras. 7-8]. compared the scope of application of Article 94 (1) and Article 89 (4) and analysed:

“Upon comparing the text of the two provisions and with a view to giving independent content to each, the Chamber considers that the relationship between articles 94(1) and 89(4) of the Statute is as follows: (i) both articles relate to situations where a cooperation request creates interference with the requested State's domestic legal process, (ii) article 89(4) of the Statute is a lex specialis provision that specifically relates to surrender requests and, without any mention of a possibility for postponement, requires the requested State to grant the request and then consult with the Court and (iii) article 94(1) allows for postponement of the request when such a situation arises, but only for requests other than requests for surrender. That article 94 only applies to cooperation requests other than surrender, such as those identified in article 93 of the Statute, is also supported by both the drafting history and learned commentators who have examined the issue.“

Prior to this decision, the Prosecutor discussed a sequencing of the (entire) international and national investigations pursuant to Article 94 [see Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Prosecutor, Prosecutor’s Submission on the Prosecutor’s recent trip to Libya, ICC-01/11-01/11-31, 25 November 2011, para. 8]. Commentators agree with the assessment by the Pre Trial Chamber [Akande, 2012, p. 322; Meißner, 2003, 138; Kreß/Prost, 2016, Article 94, para. 1; Schabas, 2016, Article 94, p. 1329; Palmer, 2016, p. 217; Rinoldi/Parisi, 1999, p. 370; Ambos, 2016, p. 615] and it seems to be accepted that the State cannot invoke Article 94 to postpone a surrender request by the Court.

Author:
Mayeul Hiéramente

Updated:
25 August 2017

Article 94(1) - would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates

[738.2] would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates
The requested State is not free to invoke any reason for the postponement of the execution of cooperation request. By virtue of Article 88 it has to avoid that circumstances arise in which a cooperation request cannot be immediately executed. The obligation entails that national laws regulating measures of judicial assistance allow for an effective cooperation even in an event of parallel investigations by national authorities. The cooperation regime put in place by the States has to take into consideration potential effects on national proceedings – no matter at which stage [Meißner, 2003, p. 237] – by minimizing the likelihood of interference with ongoing investigations. The interference has to be substantial and can ultimately be assessed only by the State itself [Détais, 2012, Article 94, p. 1895]. Some of the forms of cooperation enumerated in Article 93 (1) are less prone to interference with national investigations if conceived by the national law as secret investigation measures. For example: it is unlikely that a State will be able to invoke Article 94 (1) for the identification and whereabouts of persons or the location of items (Article 93 (1)(a)), the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports (Article 93(1)(b)), the examination of places of or sites, including the exhumation and examination of grave sites (Article 93 (1)(g)), the provision of records and documents, including official records and documents (Article 93 (1)(i)), the protection of victims and witnesses and the preservation of evidence (Article 93(1)(j)), the identification and tracing of proceeds, property and assets and instrumentalities (Article 93 (1) (k)) as well as other type of assistance such as wire-tapping and other technical measures of surveillance. The State has to make such assessment on a case by case basis. Meißner also notes that on many occasions copies of the original evidence might be provided [Meißner, 2003. p. 237].

Article 94 (1) stipulates that only an investigation or prosecution for a case different from the case forming the basis of the request allows the requested State to postpone the execution. It is, however, conceivable that the national investigations focus on the same conduct and that the State has or intends to challenge the admissibility of the case. If the State already challenged the admissibility, it can invoke Article 95 [see Akande, 2012, p. 322, and Meißner, 2003, p. 239 regarding the relationship between Articles 94 and 95]. Otherwise it will have to execute the cooperation request but might seek consultation with the Court pursuant to Article 97. The Article is mute as to the nature of the national investigation. A literal reading of the provision suggests that any type of (criminal) investigation, the (lack of) gravity of the criminal conduct investigated notwithstanding, would allow the requested State to postpone the execution of the request. Kreß and Prost convincingly argue that as a consequence of the general obligation to cooperate with the Court enshrined in Article 86, the State Party should seriously examine whether a postponement is justified [Kreß/Prost, 2016, Article 94, para. 4]. Investigations into criminal offenses of minor gravity should not allow the State to significantly delay the execution of the request by the ICC for investigations into crimes as defined in Articles 6 to 8. A categorical exclusion of certain types of investigations/crimes is, however, not warranted [see also Détais, 2012, Article 94, p. 1895].

Author:
Mayeul Hieramente

Updated:
25 August 2017

Article 94(1) - the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than necessary to complete the relevant investigation or prosecution in the request

[738.3] the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.
Article 94 (1) allows the requested State to postpone the execution of the cooperation request. It cannot refuse cooperation altogether [Schabas, 2016, Article 94, p. 1329; Meißner, 2003, p. 237; Ambos, 2016, p. 615]. A refusal to provide judicial assistance can be based on Article 93 (4). The Statute further imposes a duty to seek the agreement of the Court [Kreß/Prost, 2016, Article 94, para. 5; see also Détais, 2012, Article 94, p. 1896 and Meißner, 2003, p. 238, who limit the agreement to the duration of the postponement]. Schabas notes that the wording of Article 94 (1) lacks clarity in this regard. The provision fails to specify the consequences of a failure of the Court and the State to come to an agreement [Schabas, 2016, Article 94, p. 1330; Meißner, 2003, p. 238; see also Détais, 2012, Article 94, p. 1893]. Article 94(2) even seems to accord the State the right to make a unilateral “decision” in this regard [Schabas, 2016, Article 94, p. 1330]. Schabas nonetheless argues that absent any agreement, the State is in no position to invoke a postponement [Schabas, 2016, Article 94, p. 1330]. Kreß and Prost also argue that the Court remains the ultimate arbiter if the requested State “clearly acts unreasonably” [Kreß/Prost, 2016, Article 94, para. 3; Meißner, 2003, p. 238; see Schabas, 2016, Article 94, p. 1330 raising the question what should be done if the Court acts unreasonably]. Détais is willing to grant the State a considerable margin of appreciation as to the existence of an interference and the necessity of the postponement [Détais, 2012, Article 94, p. 1895; see also Meißner, 2003, p. 238] and considers the time limit imposed as the only formal control mechanism for the Court [Détais, 2012, Article 94, p. 1896]. The Statute provides guidance as to the time limit of such postponement. It denies the State the right to postpone the execution of the request for a longer period than necessary for the completion of the investigation and prosecution by the national authorities [Kreß/Prost, 2016, Article 94, para. 6]. Given the lengths of many criminal proceedings this will hardly be an acceptable outcome for the Court [Détais, 2012, Article 94, p. 1896]. Furthermore, the State has to assess, in consultation with the Court [Kreß/Prost, 2016, Article 94, para. 7; Détais, 2012, Article 94, p. 1895], if it can provide judicial assistance to the Court subject to conditions. An immediate execution of the request takes priority over an unconditioned cooperation [Meißner, 2003, p. 237].

Author:
Mayeul Hieramente

Updates:
25 August 2017

Article 94(2)

[739] 2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to Article 93, paragraph 1 (j).
The second paragraph is meant to allow the Prosecutor to seek measures to preserve evidence to avoid any lasting prejudice to the Court’s investigation. Every postponement entails the risk that evidence will disappear or will be beyond the reach of the State in question [Kreß/Prost, 2016, Article 94, para. 8]. Article 94 (2) only refers to Article 93 (1)(j) which itself lacks a definition of what measures ought to be taken as a matter of preservation [Kreß/Prost, 2016, Article 93, para. 34]. The lines between “taking of evidence” and “preservation” are blurry and difficult to determine. Many measures enumerated in Article 93 (1) contain an element of preservation. The Prosecutor may – but is not obliged [Détais, 2012, Article 94, p. 1896] – seek preservation measures to protect its ongoing investigations. If the Prosecutor abstains from such a request, the State should nonetheless make sure that the postponement of the original request does not frustrate the investigative efforts by the Court [Meißner, 2003, p. 239]. The consequences of Article 94 (2) are not entirely clear. Détais remarks that the wording does not suggest that paragraph 2 is to be construed as a legal basis that mandates execution of the preservation request. The legal obligation to cooperate and the corresponding right of the Court to request such cooperation is, however, directly enshrined in Article 93 (1)(j). It is for that reason that only States Parties face an obligation to cooperate in the preservation of evidence [Détais, 2012, Article 94, p. 1897]. Article 94 (2) clarifies that objections to an immediate execution as provided for in Article 94 (1) shall not be made in case of a preservation request. Meißner argues that preservation measures are entirely excluded from the scope of application of paragraph 1 [Meißner, 2003, p. 238]. If this is indeed the case, a restrictive interpretation of “preservation”, that focuses solely on investigatory measures that lack a significant potential of interference with national investigations, is warranted.

Cross-references:
Articles 89(2)(4) and 95

Doctrine
1. Dapo Akande, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC”, Journal of International Criminal Justice, vol. 10, no. 2, pp. 293-324.

2. Kai Ambos, Treatise on International Criminal Law. Vol III: International Criminal Procedure, Oxford University Press, Oxford, 2016.

3. Julien Détais, “Article 94”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1893-1897.

4. Claus Kreß and Kimberly Prost, “Article 94”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2103-2105.

5. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.

6. Nicola Palmer, “The Place of Consultation in the International Criminal Court’s Approach to Complementarity and Cooperation", in Olympia Bekou/Daley J. Birkett (eds.), Cooperation and the International Criminal Court. Perspectives from Theory and Practice, Brill Nijhoff, Leiden, Boston, 2016, pp. 210-226.

7. Dine Rinoldi and Nicoletta Parisi, “International Cooperation and Judicial Assistance between States Parties and the International Criminal Court”, in Flavia Lattanzi and William Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. I, 1999, pp. 339-390.

8. William Schabas, “Article 94”, in William Schabas, The International Criminal Court. A Commentary on the Rome Statute, Second edition, Oxford University Press, Oxford, 2016, pp. 1328-1330.

Author:
Mayeul Hiéramente

Updated:
25 August 2017

Article 95

[740] Postponement of execution of a request in respect of an admissibility challenge
where there is an admissibility challenge under consideration by the Court pursuant to Article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to Article 18 or 19.
General Remarks
Article 95 supplements Article 89 (2) and Article 94 (1) and allows the requested State to postpone the execution of a cooperation request by the Court. It addresses the specific but highly relevant situation of an admissibility challenge pursuant to Articles 18 and 19 which contain (partially) corresponding provisions that impose a freeze of investigations by the Prosecutor [Akande, 2012, p. 316]. The provision is a cornerstone of the complementarity regime of the Statute and allows the State to prevent a fait accompli. The provision is meant to serve the sovereign interests of the requested State and not the individual.

Preparatory Works
The inclusion of a ground of refusal – temporary or absolute – was, in general, subject to much debate. Some States favoured a right to refuse or postpone cooperation in case of ongoing domestic investigations into the same matter [see Kreß/Prost, 2016, Article 95, para. 1; UN Doc. A/Conf.183/2/Add.1, Draft Article 90 (2)(e), p. 144] while others suggested a stricter cooperation regime to strengthen the effectiveness of Part IX [Kreß/Prost, 2016, Article 95, para. 1]. The current compromise emphasizes the need for consultation between the Court and the requested State and forces the State to actively seek an admissibility ruling if it intends to invoke the right to postpone the execution of the request [Kreß/Prost, 2016, Article 95, para. 1]. This serves the general objective of the Statute to address complementarity issues as early as possible [see e.g. Article 19 (5); Kreß/Prost, 2016, Article 95, para. 1; Schabas, 2016, Article 95, p. 1331; Akande, 2012, p. 316]. It was originally linked to Article 53 [Détais, 2012, Article 95, p. 1900].

Author:
Mayeul Hieramente

Updated:
25 August 2017

Article 95 - Where there is an admissibility challenge

[740.1] Where there is an admissibility challenge

Analysis
Article 95 focuses solely on the postponement of the execution of a cooperation request in light of an admissibility challenge.

Challenge
The prerequisite for a postponement by the requested State is the existence of an admissibility challenge. The provision does not require that the requested State itself has challenged the admissibility of the case. It suffices that an admissibility ruling is pending. This could, inter alia, be the case if the individual brought an admissibility challenge pursuant to Article 19 (2)(a) or if another State objected to proceedings by the Court by virtue of Article 19 (2)(b) arguing that it has jurisdiction and is investigating the case [Akande, 2012, p. 316; Meißner, 2003, p. 156]. An admissibility challenge is case specific [Kreß/Prost, 2016, Article 95, para. 11]. Despite the use of the term “challenge”, a requested State should also have the right to invoke Article 95 in the unlikely situation the Court is making a determination regarding the admissibility of a case on its own motion (Article 19 (1)). Such a situation might occur where the Court is made aware, e.g. through a national ne bis in idem challenge as envisaged in Article 89 (2), of facts that suggest the inadmissibility of the case [see Akande, 2012, p. 320]. If it is beyond doubt that the Pre Trial Chamber is seized with the matter and an admissibility ruling is pending, there is no reason to deny the requested State the possibility to postpone the execution of the cooperation request. Such interpretation is supported by the fact that Article 95 also refers to Article 18 which does not contain an admissibility challenge stricto sensu. A determination by the Prosecutor that a case is inadmissible does not suffice [Kreß/Prost, 2016, Article 95, para. 3; but see also Détais, 2012, Article 95, p. 1900].

Author:
Mayeul Hiérament

Updated:
25 August 2017

Article 95 - under consideration

[740.2] under consideration
The provision requires that the admissibility challenge is already under consideration. Article 95 therefore requires that the challenge is brought to the attention of the Court. The mere intention or announcement of a future admissibility challenge is insufficient [Schabas, 2016, Article 95, p. 1332]. Pre-Trial Chamber I notes [Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, ICC PT. Ch. I, Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif al-Islam Gaddafi, ICC-01/11-01/11-100, 4 April 2012, para. 18]:

“Consequently, article 95 of the Statute only applies when there is an admissibility challenge under consideration. Though Libya has announced that an admissibility challenge is forthcoming, there is currently no such challenge before the Chamber. Therefore, the Chamber holds that article 95 of the Statute cannot serve as a legal basis for Libya's Second Postponement Request.“

The Pre-Trial Chamber explicitly states that the formal requirements (Rule 58) and possible delays applying to Article 19 proceedings constitute no ground for postponement [para. 17]. In an application for leave to appeal based on Article 82 (1)(d) [Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Government of Libya, Government of Libya’s Leave to Appeal the “Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif al-Islam Gaddafi”, ICC-01/11-01/11-102, 10 April 2012; no objection from the Prosecutor, see Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Prosecutor, Prosecution’s Response to “Government of Libya’s Leave to Appeal the ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif al-Islam Gaddafi’”, ICC-01/11-01/11-110, 16 April 2012, para. 5] the Government of Libya argued that by communicating its intention to bring an admissibility challenge regarding Saif al-Islam Gaddafi (and Abdullah al-Senussi) it had satisfied the conditions enshrined in Article 95. It referred to Rule 58 arguing that the provision envisages a “request” as well as an “application” with a request preceding the finalized application and sufficing for a postponement under Article 95 [para. 11]. The interpretation by the Pre-Trial Chamber would penalize the requested State by de facto forcing it to make a premature application with incomplete legal and factual materials and evidence [para. 22]. The Libyan Government invoked the exceptional circumstances the country was facing at the time [paras. 5-6]. The Libyan Government also appealed the Pre-Trial Chamber decision directly based on Article 82 (1) (a) [Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Government of Libya, Government of Libya’s Appeal against the “Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif al-Islam Gaddafi”, ICC-01/11-01/11-103, 10 April 2012, paras. 15 et seq.]. The appeal was rejected as it did not pertain directly to admissibility [Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Ap. Ch., Decision on “Government of Libya’s Appeal against the ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif al-Islam Gaddafi’” of 10 April 2012, ICC-01/11-01/11-126, 25 April 2012, para. 15]. A decision on the application for leave to appeal was not rendered since the issue was considered moot after Pre Trial Chamber I granted the Article 95 postponement in the Gaddafi case in its decision dated 1 June 2012 [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, para. 42]. In the al-Senussi case, Pre-Trial Chamber I also informed the Libyan authorities of the need for a formal application if they intend to refuse a surrender request [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT Ch. I, Decision requesting Libya to provide observations concerning the Court’s request for arrest and surrender of Abdullah al-Senussi, ICC-01/11-01/11-254, 18 January 2013, para. 11] and reiterated its views as to the formal requirements of an admissibility challenge as a prerequisite of a postponement under Article 95 [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the “Urgent Application on behalf of Abdullah al-Senussi for Pre-Trial Chamber to order the Libyan authorities to comply with their obligations and the orders of the ICC, ICC-01/11-01/11-269, 6 February 2013, paras. 30, 34, 35]. The Pre Trial Chamber further clarified its position and stated [para. 32]: [...], the Chamber observes that an incomplete challenge which needs to be supplemented in due course cannot be considered as having been "properly made within the terms of article 19 of the Statute and rule 58 of the Rules". In this regard, the Chamber finds of relevance the finding of the Appeals Chamber that a State has the duty to ensure that its admissibility challenge is sufficiently substantiated by evidence, as it has no right to expect to be allowed to present any additional evidence after the initial challenge.“ The Libyan government applied for leave to appeal which was rejected by the Pre-Trial Chamber arguing that the conditions of Article 82(1)(d) were not met [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the “Government of Libya’s Application for Leave to Appeal the “Decision on the ‘Urgent Application on behalf of Abdullah al-Senussi for Pre-Trial Chamber to order the Libyan authorities to comply with their obligations and the orders of the ICC’”, ICC-01/11-01/11-287, 25 February 2013, para. 36]. In a subsequent decision, the Pre Trial Chamber I confirmed that even an application that was submitted 7 months later and therefore not “at the earliest opportunity” as intended by Article 19 (5) could be considered a valid admissibility challenge that allows for a postponement under Article 95 [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 31 et seq.]. It remains to be seen if such delay would be tolerated in circumstances other than the one Libya was facing at the time [see a critical assessment by Kreß/Prost, 2016, Article 95, paras. 14 et seq.]. The Chamber recognized in principle that an abusive admissibility challenge could automatically result in an illegitimate postponement [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 35].

Author:
Mayeul Hiéramente

Updated:
25 August 2017

Article 95 - the requested State may

[740.3] the requested State may
Article 95 allows for a discretionary decision on the part of the State. An admissibility challenge has no automatic consequences on the cooperation request. The postponement cannot be triggered by the individual in question. The wording of Article 95 further illustrates that the State is taking the decision to postpone. The provision does not envisage the need for a decision by the Court [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 25 et seq.; Kreß/Prost, 2016, Article 95, para. 13]. In case of a dispute regarding the application of Article 95, the State is not entitled to make a unilateral decision. It is for the Court to decide whether the conditions set out in Article 95 are met [Schabas, 2016, Article 95, p. 1332; Kreß/Prost, 2016, Article 95, para. 13; Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 25 et seq.]. Contrary to Article 94, the conditions for a postponement are solely in the sphere of the Court [Détais, 2012, Article 95, p. 1901]. In case of a postponement of a request for surrender (see below), the competent organ is the Chamber that issued the request for arrest and surrender [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, para. 37].

Pre-Trial Chamber I [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, paras. 27 et seq.; see also Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 20; Détais, 2012, Article 95, p. 1899] decided that a State may invoke Article 95 even in case of a Security Council referral pursuant to Article 13 (b). The Chamber did not address the question whether a State that is obliged to cooperate with the Court by virtue of a binding UN Security Council resolution (Articles 25, 103 of the UN Charter) might be forced to comply with an enhanced cooperation regime including primacy of the Court’s investigation.

Author:
Mayeul Hieramente

Updated:
25 August 2017

Article 95 - postpone the execution of a

[740.4] postpone the execution of a
The requested State is allowed to postpone the execution of a cooperation request. The postponement is not subject to any conditions. The requested States remains free to continue its own investigation into the same conduct or wait for a determination by the Court. This allows the requested State to minimize the impact and costs of the cooperation by the Court until a definite legal assessment regarding the cooperation obligations in the specific case. The OPCD raised the question whether it would be appropriate to continue investigations into a different matter during the postponement. Pre-Trial Chamber I did not pronounce itself on this issue [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on “Urgent Defence Request”, ICC-01/11-01/11-291, 1 March 2013, para. 24; Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the admissibility of the case of Saif al-Islam Gaddafi, ICC-01/11-01/11-344-Red, 31 May 2013] but indicated that the continuation of domestic proceedings in general does not constitute ground to revoke the postponement [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 36]. The wording of Article 95 does not suggest such limitations [see Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Ap. Ch., Decision on the request for suspensive effect and the request to file a consolidated reply, ICC-01/11-01/11-480, 22 November 2013, para. 16]. Any activities by the national justice system might, however, factor into the overall assessment of the admissibility as they might indicate a pattern as envisaged in Article 17 (1)(a). Same applies for other behaviour in violation of the State’s international obligations [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to Article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-354, 14 June 2013, para. 35]. The Pre-Trial Chamber implicitly recognized that the State is not obliged to provide a reason for the postponement and stated that the Court has no discretion in the matter [para. 25]. The Pre-Trial Chamber partially accepted the leave to appeal by the Defence. The appeal was dismissed as moot [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Ap. Ch., Decision on the appeal of Mr. al-Senussi against the Pre-Trial Chamber’s “Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah al-Senussi pursuant to article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council, ICC-01/11-01/11-571, 11 September 2014] after a finding of inadmissibility of the al-Senussi case.
Furthermore, it should be noted that the State may only temporarily postpone the cooperation [Schabas, 2016, Article 95, p. 1334] and thus must ensure “that all necessary measures are taken during the postponement in order to ensure the immediate execution” of the request should the case be found admissible [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, para. 40]. The postponement concerns only the specific request [para. 41]. The State might, however, object to other requests in the same manner.
The postponement ends automatically with the decision on the admissibility challenge [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, para. 40; ICC-02/11-01/12-47-Red, para. 80; Schabas, Article 95, p. 1334]. If the Court confirms the admissibility of the case, the requested State has to comply with the cooperation request. In the event of an appeal against the affirmative admissibility decision, the cooperation request cannot be postponed [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Ap. Ch., Decision on suspensive effect and related issues, ICC-01/11-01/11-387, 18 July 2013, para. 27; Schabas, 2016, Article 95, p. 1334; Meißner, 2003, p. 157] unless a suspensive effect of the appeal is granted. Reference to ongoing investigations does, however, not suffice to grant the suspensive effect [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Ap. Ch., Decision on suspensive effect and related issues, ICC-01/11-01/11-387, 18 July 2013, paras. 23 et seq.; Prosecutor v. Simone Gbagbo, Ap. Ch., Decision on Côte d’Ivoire’s request for suspensive effect of its appeal against the “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo” of 11 December 2014, ICC-02/11-01/12-56, 20 January 2015, paras. 14 et seq.]. In case of an appeal against a decision negating the admissibility, Article 95 continues to apply [Meißner, 2003, p. 157].

Author:
Mayeul Hieramente

Updated:
5 September 2017

Article 95 - request under this Part pending a determination by the Court,

[740.5] request under this Part pending a determination by the Court,
The provision fails to specify the nature of the request that may be postponed. The fact that Article 95 is placed after Articles 93 and 94 seems to indicate that it is meant to address “other forms of cooperation”. The second part of Article 95 refers to the collection of such evidence which also suggests a more restrictive scope of application [Schabas, 2016, Article 95, p. 1333; Kreß/Prost, 2016, Article 95, para. 6]. The drafting history provides no definite answer either but it confirms the intentional placement of the Article after the corresponding provision on judicial assistance [Schabas, 2016, Article 95, p. 1333]. The OPCD had further argued that the existence of Article 89 (2) suggests a duplication not intended by the drafters of the Statute [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, Defence, Public Redacted Version of the “Response to the Request to Postpone the Surrender of Mr. Saif al Islam Gaddafi pursuant to Article 95 of the Statute”, ICC-01/11-01/11-141-Red, 11 May 2012; see Akande, 2012, pp. 319 et seq.]. The wording and placement are, however, far from clear and there seems to be a broad consensus that Article 95, which broadly refers to a “request under this Part”, encompasses requests for arrest and surrender (Article 89 (1)) as well as judicial assistance under Article 93 [Akande, 2012, p. 318; Kreß/Prost, 2016, Article 95, para. 4; Meißner, 2003, p. 158; Rinoldi/Parisi, 1999, p. 371]. Kreß and Prost note that this has practical benefits in that it might avoid (substantial) costs of a surrender process that would have to be reversed in case of inadmissibility of the case [Kreß/Prost, 2016, Article 95, para. 8]. Pre-Trial Chamber I concurred with the assessment by the Libyan Government [see e.g. Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Government of Libya, Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ICC-01/11-01/11-130-Red, 1 May 2012, paras. 105-106; Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Government of Libya, Government of Libya’s Leave to Appeal the “Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif al-Islam Gaddafi”, ICC-01/11-01/11-102, 10 April 2012;] and the Prosecutor [Prosecutor v. Saif al-Islam Gaddafi and al-Sennussi, Prosecutor, Prosecution’s Response to Government of Libya’s Request for the Postponement of the Surrender of Saif al-Islam Gaddafi brought within their application to challenge the admissibility of the case under Article 19, ICC-01/11-01/11-142, 11 May 2012, paras. 11 et seq.] and confirmed the applicability of Article 95 to requests for arrest and surrender [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012]. The Pre Trial Chamber stated [para. 32]:

„Regardless of its placement, the ordinary meaning of the terms "a request under this Part", as well as a systematic reading of this provision with its related complementarity norms, support the interpretation that article 95 encompasses all requests for cooperation under Part IX, including requests for arrest and surrender made before or after the admissibility challenge.“

Regarding the reference to “such evidence” the Chamber notes [para. 34]:

“The word "such" therefore refers to the evidence that, despite the suspension, the Prosecutor may be exceptionally authorised to collect pursuant to articles 18(6) and 19(8)(a) and (b) of the Statute. In other words, article 95 of the Statute mirrors the safeguards that the Prosecutor may seek to obtain pursuant to those provisions and which are intended to make the suspension of the investigation and the corresponding postponement by the State less strict.“

The Chamber further highlighted the importance of the complementary principle that Article 95 serves to protect [para. 36; see also Kreß/Prost, Article 95, para. 7] and argued:

“It would be untenable for the Court to insist on compliance with a request for arrest and surrender, even at the risk of hampering the national proceedings, while its own investigation is suspended.“

It should be noted, however, that Article 95 does not require any interference with national proceedings. Furthermore, it is worth noting that the jurisprudence of the Court has focused so far on the postponement of a request to surrender. It remains somewhat unresolved whether Article 95 might also allow the postponement of the execution of the arrest or even a provisional arrest pursuant to Article 92. The wording of Article 95 provides no answers in this regard. The Statute itself does not allow for a clear-cut response. Article 19 (9) emphasizes that an admissibility challenge shall not affect the validity of a warrant issued by the Court. A postponement of the request for an arrest does, however, not call into question the validity of the arrest warrant but merely reduces its practical effect in the requested State. The warrant issued pursuant to Article 58 as well as the request for arrest based on Article 89(1) remain valid. It is therefore difficult to argue that requests for arrest are per se excluded from the scope of application of Article 95. The nature of Article 95 itself sets, however, limits. Pre-Trial Chamber I [Prosecutor v. Saif al-Islam Gaddafi and al-Senussi, PT. Ch. I, Decision on the postponement of the execution of the request for surrender of Saif al-Islam Gaddafi pursuant to article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, para. 40; see also Meißner, 2003, p. 159] rightly remarked that all necessary measures have to be taken during the postponement to ensure an execution once the admissibility of the case is determined by the Court. A postponement should not lead to a permanent refusal. If the State were to refuse the arrest of the individual and thereby permanently frustrate the Court’s proceedings, it would hardly be compatible with the obligations stemming from Articles 86 and 89. Furthermore, it will be in the interest of the requested State to keep the individual in custody to strengthen its admissibility challenge. If the requested State is, however, able to guarantee that the person will be arrested in the event of an affirmative admissibility ruling, Article 95 should accord the requested State the possibility to postpone the request for arrest [Kreß/Prost, 2016, Article 95, para. 9; Meißner, 2003, p. 159]. Meißner argues that the Prosecutor, despite the reference in Article 95 to “collection of such evidence pursuant to article 18 and 19” should also be allowed to request measures to “prevent absconding of persons” [Meißner, 2003, p. 159]. Akande highlights that such measures have to be taken in cooperation which in turn suggests that the State cannot be compelled [Akande, 2012, p. 318].

Author:
Mayeul Hieramente

Updated:
5 Septemeber 2017

Article 95 - unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence to article 18 or 19.

[704.6] unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence to article 18 or 19.
The provision further specifies that a postponement of the execution of a cooperation request should not hinder the collection of important evidence. Article 95 refers to Articles 18 (6) and 19 (8) which allow the Prosecutor to seek authority of the Court for certain investigative measures [Akande, 2012, p. 318]. The reference to Articles 18 and 19 goes beyond the preservation requirements stipulated in Article 94 (2) [Kreß/Prost, 2016, Article 95, para. 19] but imposes other limitations [Détais, 2012, Article 95, pp. 1901-1902]. The Prosecutor requires approval of the Chamber [Détais, 2012, Article 95, p. 1901]. The broader authority accorded to the Prosecutor is legitimate. After all, Article 95 contains no explicit reference to a potential interference with national investigations, which is the reason Article 94 (2) imposes stricter limitations on the Prosecutor.

Cross-references:
Articles 18(6), 89(2) and (4) and 94

Doctrine
1. Dapo Akande, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC”, Journal of International Criminal Justice, vol. 10, no. 2, pp. 293-324.

2. Julien Détais, “Article 95”, in Julian Fernandez/Xavier Pacreau (eds.), Statut de Rome de la Cour Pénale Internationale. Commentaire Article par Article, editions A. Pedone, Paris, 2012, pp. 1899-1902.

3. Claus Kreß and Kimberly Prost, “Article 95”, in Otto Triffterer/Kai Ambos (eds.), The Rome Statute of the International Criminal Court. A Commentary, Third Edition, C.H. Beck/Hart/Nomos, München, 2016, pp. 2106-2110.

4. Jörg Meißner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut, C.H. Beck, München, 2003.

5. Dine Rinoldi and Nicoletta Parisi, “International Cooperation and Judicial Assistance between States Parties and the International Criminal Court”, in Flavia Lattanzi and William Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. I, 1999, pp. 339-390.

[750] 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.
Pursuant to paragraph 4, the provisions of this Article shall in principle apply in requests to the Court under Article 93(10). At the same time, the proviso “where applicable “sets limitation to the applicability. For instance, paragraph 3 is not applicable given the clear prescription of obligator being State Parties.

Cross-reference:
Rule 194

Doctrine:

Claus Kreβ/Kimberly Prost, "Article 96 - Contents of Request for Other Forms of Assistance Under Article 93", in Triffterer, Otto (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1595-1598.
Gabrielle Kirk McDonald, "Trial procedures and practices", in Gabrielle Kirk McDonald/Olivia Swaak-Goldman (Eds.), Substantive and Procedural Aspects of International Criminal Law, Kluwer Law International, The Hague, 2000, pp. 551-620.

Author: ZHANG Yueyao

Updated: 30 June 2016

Article 97

[751] Consultations
General Remarks
Article 97 is a clause which may be used to resolve problems that may arise in relation to requests for cooperation under Part 9. This Article intends to serve the overall purpose of Part 9 of the Rome Statute to facilitate the execution of the request and promote cooperation. It recognizes that in practice requests sent to State Parties may still be insufficient in content or not executable. State Parties have the obligation to consult with the Court ‘without delay’ if execution problems arise. This Article only applies to the requests issued by the Court to State Parties. Requests of assistance issued to the Court under Article 93(10) are not eligible for such consultation.

Author: ZHANG Yueyao

Updated: 30 June 2016

Article 97(1)

[752] Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia:
The intention of this Article is to promptly resolve the problems of the requests to an executable condition, and ensure good faith cooperation between State Parties and the Court. Article 93(5) reflects similar arrangement: it obliges the requested State Party to look for alternative measures to provide assistance before denying a request, provided that the Court or the Prosecutor accepts the alternative measure. State Parties and the Court would therefore negotiate over the measures to be taken and potential modifications to the request. In this way a consultation-like mechanism between the State Party and the Court is established in actuality, although without explicit terms. Article 97 is thus also applicable to the circumstances under Article 93(4) and (5).
Paragraphs (a)-(c) provides examples of problems relating to the execution of a request from the Court.

Author: ZHANG Yueyao

Updated: 30 June 2016

Article 97(1)(a)

[753] (a) Insufficient information to execute the request;
A State Party shall promptly consult with the Court if there is lack of information. The standard to determine such lack of information is set in the general requirement of Articles 87, the lists of Articles 91 and 96(2).

Author: ZHANG Yueyao

Updated: 30 June 2016

Article 97(1)(b)

[754] (b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant;
When the requested State Party finds that pursuant to the request, despite best efforts, the person sought cannot be located or is not the person named in the warrant, it is necessary that both sides should promptly confirm the information of the request and determine if additional information could be provided, or corrections should be made. It is important particularly for the person mistakenly arrested or detained under the request for surrender.

Author: ZHANG Yueyao

Updated: 30 June 2016

Article 97(1)(c)

[755] (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.
When the requested State identifies that execution of the request conflicts with its obligation under a pre-existing treaty, the State Party is obliged to consult with the Court for a resolution between the competing obligations.
Paragraph (c) is derived from Article 87 paragraph 3 (e) in the Draft Statute, stating that "if compliance with the request would put the requestes state in breach of an existing obligation arising from [a peremptory norm of] general international law [treaty] obligation undertaken to Another State", the circumstance constitutes one of the grounds for State Parties to deny a request for surrender, transfer or extradition (U.N.Doc. A/CONF. 183/2/Add.1, p. 68). Article 90(2)(f) in the Draft Statute also provides that if "compliance with the request would put it brecaj of an existing [international law treaty] obligation undertaken to Another state [non-State party], there a possible ground to deny a request for assistance (U.N.Doc. A/CONF. 183/2/Add.1, p. 73). The final Rome Statute has not kept this term the scope of grounds of denial is limited to national security only, in order to reinforce the obligation of State Parties to comply with the Court’s request. It takes a cooperative approach to resolve the potential problems regarding competing obligations of State Parties. There is no indication as to the consequences if the requested State and the Court fail to reach a resolution, but in actuality this clause has not confronted much criticism (Kreß and Prost, p. 1599).

Doctrine:

Claus Kreβ/Kimberly Prost, "Article 97 - Consultations”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1599-1600.
Roy S. Lee, "Creating an International Criminal Court-Of Procedures and Compromises", in Herman A. M. von Hebel et al. (Eds.), Reflections on the International Criminal Court, T.M.C. Asser Press, The Hague, 1999, pp. 141-152.

Author: ZHANG Yueyao

Updated: 30 June 2016

Article 98

[756] Cooperation with respect to waiver of immunity and consent to surrender
General Remarks
Article 98 is placed in part 9 of the Rome Statute, which deals with international cooperation and judicial assistance. The Article represents an effort to solve conflicts that may arise between international criminal justice and the international obligations of the state parties of the ICC.
Article 98 was not amongst the Articles given most attention during the drafting process of the Rome Statute, but is has proven to be one of the more controversial Articles of the Statute [Schabas, 2010, p. 1038]. Situations may arise where an international obligation of a state party is in conflict with the obligation to cooperate with the ICC and Article 98 provides the states parties with a possibility to rank its international obligations higher than its obligations to cooperate with the ICC. Whether a conflict between a request for cooperation from the ICC and an international obligation of the requested state is at hand or not is however ultimately determined by the Court and not the concerned state itself on a case-to-case basis [Kreß and Prost, in Triffterer, 2008, p. 1603]. If a conflict of obligations is at hand the Court has a responsibility to try to achieve cooperation with the third state (subparagraph 1) or the sending state (subparagraph 2).
Article 98 also influences the effects following Article 27. Immunities enjoyed by a state official shall not, according to Article 27, bar the ICC from exercising jurisdiction over that state official. The application of Article 98 may however result in the opposite effect and may under certain circumstances in fact bar the ICC from exercising jurisdiction over a state official [Triffterer, 2008, p. 792].

Author: Camilla Lind

Updated: 30 June 2016

Article 98(1)

[757] Analysis of provision and sub-provisions
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
Article 98(1) is applicable in the situation where a state party of the ICC would have to act inconsistently with its obligations under international law concerning state or diplomatic immunity of a person or property of a third state. The application of the Article requires two definitions to be made. Firstly, “obligations under international law” means that the Article covers international immunities that exist by virtue of customary international law, treaty or general principles of law. Consequently the Article covers both immunity ratione materiae and immunity ratione personae. Immunities that exist by virtue of international agreements are however not covered by Article 98(1) but rather by Article 98(2) [Schabas, 2010, p. 1040-1041]. Secondly, the term “third state” must be defined in order to determine the scope of application of Article 98(1).

Author: Camilla Lind

Updated: 30 June 2016

Article 98(1) - Third state

[758] with respect to the State or diplomatic immunity of person or property of a third State
Article 98(1) uses another wording than Article 98(2) when it refers to ”third state” rather than ”sending state” as in the second subparagraph. To fully understand the scope of Article 98(1) the meaning of the term ”third state” must be discussed. According to Article 2(1)(h) of the Vienna Convention on the Law of the Treaties ”third state” is a state that is not party to the treaty at hand. However the drafters of a treaty are free to give the term ”third state” another meaning. The meaning of ”third state” in Article 98(1) should, according to the literature, be interpreted as meaning ”state other than the requested state” since it would otherwise give rise to consequences that were not intended by the drafters [see Kreß and Prost, 2008, p. 1606 and Schabas, 2010, p. 1039].

Relationship with Article 27(2)
The third state could be both a state party to the ICC and a non-state party. This gives rise to two different situations that must be kept apart. When a third state is a state party Article 27(2) is applicable and in line with that article the state parties of the Rome Statute has waived the immunity accorded to their state officials by international law (see the commentary to Article 27(2)Rome Statute above). Kreß and Prost argues that when the requested state and the third state are a state parties of the ICC a conflict covered by Article 98(1) cannot exist [see Kreß and Prost, 2008, p. 1607]. Schabas accedes to this view [see Schabas, p. 1404]. Even if the arguments put forward by Kreß and Prost and Schabas would not be accepted and a state party would be of the view that a request from the ICC would be in conflict with its international obligations the Court could obtain a waiver of immunity from the third state based on that state’s consent to Article 27.
In a situation when the third state is not a state party to the Rome Statute conflicting obligations may arise. Article 98(1) is applicable in those situations. Whether there is a conflict with the international obligations of the requested state and the request from the Court will be determined on the basis of customary international law [Kreß and Prost, 2008, p. 1608]. Customary international law distinguishes between immunity ratione materiae and immunity ratione personae where the first attaches to state officials performing state actions and the second attaches to the office of certain high ranking state officials (namely the head of state, head of government and the foreign minister of a state). It is now rather well established that immunity ratione materiae cannot shield a person from responsibility for international crimes (see the commentary to Article 27(2) above). The status of immunity ratione personae is however not altogether clear. What can be said is that it is quite certain that immunity ratione personae shields incumbent high ranking state officials from proceedings concerning responsibility for international crimes in the domestic courts of other states. However, a development can be seen with regard to proceedings before international courts. It is argued, for example by the Pre-Trial Chamber I of the ICC (see the decisions in Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009 and Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139, 12 December 2011) that immunity ratione personae does not apply with regard to criminal proceedings before international courts. Consequently, the ICC would then have jurisdiction over incumbent high ranking state officials that are nationals of a non-state party that has not voluntarily waived the immunity of its state officials.
The distinction between national and international proceedings is not important only with regard to the jurisdiction of the ICC. It is also important with regard to the ability of state parties to fulfil a request for cooperation from the ICC without breaking its international obligations. Whether that is possible or not depends on the state party should be seen as using its own, domestic jurisdiction or if it should be considered as using the jurisdiction of the ICC when carrying out a request for cooperation. According to a decision by the Pre-Trial Chamber (see below), a state party should be considered to be an extension of the Court and thereby using the jurisdiction of the ICC instead of its own, domestic jurisdiction. This enables state parties to carry out requests for cooperation where the subject of the request is the national of a non-party state without breaking its international obligations.

Pre-Trial Chamber Decision of 12 December 2011
In a decision of 2009 the Pre-Trial Chamber I reached the conclusion that the incumbent president of Sudan, Omar Al Bashir, did not enjoy immunity from proceedings before the Court [see Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009 and the commentary to Article 27(2) above]. In a complementing decision of 12 December 2011 [Prosecutor v. Omar Al Bashir, ICC PT. Ch., Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-139, 12 December 2011] a different composed Pre-Trial Chamber I concluded that a state party of the ICC must cooperate with respect to the arrest and surrender of president Al Bashir (who at the time of the decision was, and in June 2016 still is, the incumbent president of Sudan) and that Article 98(1) was not applicable to the present situation [para. 43]. In that specific situation the state of Malawi had refused to cooperate with the ICC with respect to the arrest and surrender of president Al Bashir with by stating that such cooperation would be in breach with its international obligations. The Pre-Trial Chamber reached its conclusion by arguing that a state party to the ICC is an instrument of the jus puniendi of the Court [para. 46]. In other words, the Court argued that a state party that receives a request for cooperation does not use its own domestic jurisdiction when enforcing that request but rather the international jurisdiction of the ICC. Consequently, if one agrees with the view that incumbent high ranking state officials does not enjoy immunity ratione personae with regard to international proceedings regarding international crimes (a conclusion that also was reached by the Pre-Trial Chamber in the decision, see para. 36) there is no conflict of obligations as described in Article 98(1) at hand. This is clearly the view of the ICC and Kreß is also of this opinion as he argues that the requested state acts on behalf of the ICC [Kreß, 2012, p. 257].
The Pre-Trial Chamber also argued in its decision that a state party that denies the arrest and surrender of a incumbent high ranking state official because of immunity reasons is acting contrary to the purpose of the Rome Statute. State parties have accepted the Rome Statute by ratifying it and should, in the view of the Pre-Trial Chamber, not act contrary to it [para. 41].

Author: Camilla Lind

Updated: 30 June 2016

Article 98(2)

[759] 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
Article 98(2) applies to both bilateral and multilateral agreements between states, and some argue that Article 98(2) especially has so called status of forces agreements in mind. Status of forces agreements are agreements of rights and responsibilities of states when one state stations forces in the territory of another state. It was agreed during the drafting process of the Rome Statute that such agreements may create a kind of immunity [Schabas, 2010, pp. 1042-1043].
In order for Article 98(2) to be applicable, in other words in order for a conflict between the request from the ICC and the obligations of the state to arise, the state must be part of the agreement that creates the obligations that would be in conflict with the request for cooperation from the ICC [Kreß and Prost in Triffterer, 2008, p. 1614]. Kreß and Prost also argues that Article 98(2) only applies to agreements that already existed when the receiving state ratified the Rome Statute [Kreß and Prost in Triffterer, 2008, pp.1616-1618].

Cross-references:
Article 27, Rule 195

Doctrine:

Claus Kreß, "The International Criminal Court and Immunities under International Law for States Not Party to the Court’s Statute", in Morten Bergsmo and LING Yan (Eds.), State Sovereignty and International Criminal Law, FICHL Publication Series No. 15, Torkel Opsahl Academic EPublisher, Beijing, 2012, pp. 223-265.
Claus Kreß/Kimberly Prost, "Article 98 – Cooperation with Respect to Waiver of Immunity and Consent to Surrender", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1601-1619.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1307-1046.
Otto Triffterer, "Article 27 – Irrelecanve of Official Capacity", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 779-793.

Doctrine:

Annalusa Ciampi, "Other Forms of Cooperation", in Antonio Cassese et al. (Ed.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 1732, 1738.
Claus Kreß/Kimberly Prost, "Article 99", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, MÜnchen/Oxford/Baden-Baden, 2008, pp. 1621-1629.
Rod Rastan, "Testing Co-operation: The International Criminal Court and National Authorities", Leiden Journal of International Law, vol. 21, no. 2, 2008, pp. 431-456.
Alex Whiting, "Dynamic Investigative Practice at the International Criminal Court", Law and Contemporary Problems, vol. 76, 2013, p. 163.

Updated: 30 June 2016

Article 101

[775] Rule of speciality
General Remarks
Article 101 contains the rule of specialty which restricts the requesting jurisdiction to bringing proceedings only with respect to the crimes for which the person was surrendered.
The basis for the rule of speciality is States' sovereignty as the requesting State can only exercise jurisdiction if the requested State cooperates. If the requested by virtue of its sovereignty could refuse extradition for certain offences, it should also have the right to exclude offences being included in the proceedings in the requesting jurisdiction after extradition (Wilkitzki, p. 1636.)
There are different views on whether the rule of speciality is a rule of customary international law. Justice Miller delivered the opinion of the US Supreme Court in United States v. Rauscher, 119 U.S. 407 (1886) after having carefully examined the terms and history of the Webster Ashburton Treaty of 1842; the practice of nations in regards to extradition treaties; the case law from the states; and the writings of commentators, and reached the following conclusion:

[A] person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings"., United States v. Rauscher at 430 (emphasis added). See also United States v. Alvarez-Machain, 504 U.S. 655 (1992)

However, statues of the ad hoc tribunals do obtain a rule of specialiy. The Appeals Chamber in Kovačević stated that "if there exists such a customary international law principle, it is associated with the institution of extradition as between states and does not apply in relation to the operations of the International Tribunal (Prosecutor v. Kovačević, (Case No. IT-01-42) ICTY A. Ch., Decision Stating Reasons for Appeals Chamber's Order of 29 May 1998, 2 July 1998, para, 37).
Schabas explains the existence of Article 101 in the Rome Statute with the tension between the "horiontal" and "vertical" view of the relationship between the States and the ICC. The inclusion of Article 101 is expression of the vision of the ICC's surrender regimes to be analogous to that of extradition between sovereign States (Schabas, pp. 1054-1055).

Preparatory works
Article 55 of the ILC Draft Statute is very similar to the provision finally adopted and stated that "[a] person transferred to the Court under Article 53 shall not be subject to prosecution or punishment for any crime other than that for which the person was transferred" (Report of the International Law Commission, Forty-sixth session, 2 May 1994-22 July 1994, Official Records of the General Assembly, Forty-ninth session (International Law Commission 1994). The rule of speciality is to be found in Article 92 of the Preparatory Committee Draft Statute (Report of the Preparatory Committee on the Establishment of an International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, Italy 15 June - 17 July 1998, A/CONF.183/2).

Author: Mark Klamberg

Updated: 30 June 2016

Article 101(1)

[776] 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered.
The first paragraph expresses the rule of speciality in a way similar to multilateral extradition treaties.
The provision only applies to "conduct committed prior to surrender", which means that the Court is no limited to speciality considerations in relation to offence committed after the person has been surrendered to the Court. This clause may become relevant in the unlikely scenario that the person is released pending trial and commits crimes or commits crimes while in detention (Schabas, p.1639).
In Prosecutor v. Muthaura et al., ICC Pt. Ch., Decision on the "Preliminary Motion Alleging Defects in the Documents Containing the Charges (DCC) and List of Evidence (LoE) and Request that the OTP be ordered to re-file an Amended DCC & LoE" and the "Defence Request for a Status Conference Concerning the Prosecution's Disclosure of 19* August 2011 and the Document Containing the Charges and Article 101 of the Rome Statute", 12 September 2011, para. 16, the Single Judge stated that "that the rationale of Article 101 of the Statute is to protect State sovereignty. The Defence argued that " [a]rticle 101 does not make any distinction between a person, who is arrested pursuant to an arrest warrant, and a person, who voluntarily surrenders to the Court pursuant to a summons to appear". To the contrary, the Single Judge observed that the application of the rule of speciality is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. This distinction between a person who is surrendered and a person who voluntarily appears before the Court can be reduced from the statutory provisions, such as Articles 58(5) and 61(1) of the Statute.

Author: Mark Klamberg

Updated: 30 June 2016

Article 101(2)

[777] 2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with Article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so.
The State that surrenders the person may waive the rule of speciality which corresponds well with established extradition standards and the rationale underlying the rule.

Cross-references:
Rules 196 and 197

Doctrine:

Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Cambridge University Press, Cambridge, 2014, p. 95.
William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1054-1057.
Peter Wilkitzki, "Article 101 - Postponement of Execution of a Request in Respect of an Admissibility Challenge”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1635-1644.

Author: Mark Klamberg

Updated: 30 June 2016

Article 102

[778] Use of terms
For the purposes of this Statute:
(a) "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute.
(b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.

General remarks
The Article clarifies the Statute´s terminological distinction between delivering up a person in the interstate context (extradition) and in the relationship “State to Court” (surrender). With the term “extradition” follows in general a lot of safe guards for the individual. For example, many States prohibit the extradition of their nationals. Article 102 is an attempt to address potential difficulties in this area by specifying that transfer of a person by a State to the Court is not extradition but surrender.
The Article does not oblige States Parties to make use of the same terminological distinction in their respective national legislation since the opening wording is “for the purpose of this Statute”.

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1058-1061.
Claus Kreß/Kimberly Prost, "Article 102 - Use of Terms", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C. H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1645-1646.

Author: Karin Påle-Bartes

Updated: 30 June 2016

Commentary continued - Part 10

Our authors

Policy Brief Series

Our Chinese and Indian authors

Article 86

Article 87

Article 87(1)

Article 87(2)

Article 87(3)

Article 87(4)

Article 87(5)

Article 87(6)

Article 87(7)

Article 88

Article 88 - State Parties

Article 88 - shall ensure that there are procedures available under their national law

Article 88 - for all of the forms of cooperation which are specified under this Part.

Article 89

Article 89(1) - The Court may transmit a request

Article 89(1) - States Parties shall comply with requests for arrest and surrender.

Article 89(2)

Article 89(3)

Article 89(4)

Article 90

Article 90(1)

Article 90(2)

Article 90(3)

Article 90(4)

Article 90(5)

Article 90(6)

Article 90(7)

Article 90(8)

Article 91

Article 91(1)

Article 91(2)

Article 91(3)

Article 91(4)

Article 92

Article 92(1)

Article 92(2)

Article 92(3)

Article 92(4)

Article 93(1)

Article 93(1)(a)

Article 93(1)(b)

Article 93(1)(c)

Article 93(1)(d)

Article 93(1)(e)

Article 93(1)(f)

Article 93(1)(g)

Article 93(1)(h)

Article 93(1)(i)

Article 93(1)(j)

Article 93(1)(k)

Article 93(1)(l)

Article 93(2)

Article 93(3)

Article 93(4)

Article 93(5)

Article 93(6)

Article 93(7)

Article 93(8)

Article 93(9)

Article 93(10)

Article 94

Article 94(1) -If the immediate execution of...

Article 94(1) - a request

Article 94(1) - would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates

Article 94(1) - the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than necessary to complete the relevant investigation or prosecution in the request

Article 94(2)

Article 95

Article 95 - Where there is an admissibility challenge

Article 95 - under consideration

Article 95 - the requested State may

Article 95 - postpone the execution of a

Article 95 - request under this Part pending a determination by the Court,

Article 95 - unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence to article 18 or 19.

Article 96

Article 96(1)

Article 96(2)

Article 96(2)(a)