CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES international law, and should contain the following basic elements: 17 the relevant crimes, i.e. genocide, crimes against humanity and war crimes, which should be defined either by the adoption of the text of relevant provisions contained in the Rome Statute of the International Criminal Court or by a reference to these provisions (which means that the definitions should remain the same as in the Rome Statute); establishment of jurisdiction over these crimes; the regime of aut dedere aut iudicare ; preliminary investigation and custody; extradition and mutual legal assistance (taking evidence or statements from persons, service of judicial documents, searches and seizures, identification of or tracing proceeds of crime or property and other things for evidentiary purposes, facilitiation of the voluntary appearance of persons in the requesting State Party, designation of central authority and channel of communication, videoconference); freezing, seizure and confiscation of property; transfer of criminal proceedings; protection of witnesses and assistance to and protection of victims; and training and technical assistance. 18 In 2013 the authors formally introduced this initiative at the 22nd meeting of the Commission on Crime Prevention and Criminal Justice (Vienna, 22-26 April 2013) and submitted a draft resolution, 19 according to which the members of CCPCJ should have expressesed “its willingness to strengthen the legal framework for international cooperation, especially in matters of the crime of genocide, crimes against humanity and war crimes, in order to facilitate and promote investigation and prosecution of those crimes”, recall that gaps may exist in this area and encourage states to put forward at the thematic debate proposals to address the issue of strengthening and enhancing the international legal framework for mutual legal assistance and extradition. It gathered support from a considerable number of states (including the Czech Republic), but the consensus could not be reached due to the position of several states which are not parties to the Rome Statute of the International Criminal Court and which objected that such an initiative exceeds the mandate of the CCPCJ. Since then, the initiative has been introduced, only in the form of a side-event, in other fora, notably at the Assembly of States Parties to the Rome Statute. As stated in the non-paper presented at the Thirteenth session of the Assembly of States Parties to the Rome Statute (8 – 17 December 2014), 20 the envisaged treaty “is meant for all States, regardless of whether or not they are States 17 However, the proper draft text is not yet available, except for a few sketched provisions contained in the document of 2011 ( op. cit. sub 3). 18 Op. cit. sub 3, Keynote address, Gérard Dive, p. 3; op. cit. sub 3, Second informal background paper by The Netherlands, p. 1 et seq. ; Non-paper “Towards a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes” (8 pages; presented at the Thirteenth session of the Assembly of States Parties to the Rome Statute in December 2014; on file with the author), p. 3. 19 International cooperation in the fight against the crime of genocide, crimes against humanity and war crimes, U.N. doc. E/CN.15/2013/L.5 (28 March 2013). 20 Non-paper “Towards a multilateral treaty …”, op. cit . sub 18.

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