305 / 464
291
GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES
state. However, the international legal framework for interstate cooperation in
the prosecution of crimes under international law is significantly underdeveloped.
Even the Rome Statute of the International Criminal Court only obliges its States
Parties to cooperate with the Court in connection with those cases brought before
the Court and does not provide for a legal framework for cooperation among States
Parties themselves. Therefore, the topic of an insufficient international law regime for
proper interstate cooperation in this area and those initiatives which aim to address
this issue are attracting more and more attention in various governmental and non-
governmental fora. The aim of this short article is to add a few brief remarks on the
most significant initiatives in this regard.
2. Current treaty regime of interstate cooperation with regard
to crimes under international law
The Convention on the Prevention and Punishment of the Crime of Genocide
(1948) defines the crime of genocide and obliges its Contracting Parties to enact the
legislation necessary to give effect to the provisions of the Convention. However, as
regards the scope of jurisdiction, it contains only an obligation to establish territorial
jurisdiction over acts of genocide.
4
The Genocide Convention does not contain any
provisions regulating mutual legal assistance in criminal matters and does not oblige
states to grant each other extradition with regard to the crime of genocide: it only
provides that the acts punishable under the Convention shall not be considered political
crimes for the purpose of extradition and that Contracting States “pledge themselves
in such cases” to grant extradition in accordance with their laws and treaties in force.
5
As regards the conventions defining war crimes, the Geneva Conventions of 1949
contain only a general provision on prosecution and extradition concerning grave
breaches of the Conventions, obliging all Contracting States to exercise their criminal
jurisdiction over grave breaches, whatever the nationality of the alleged perpetrator.
6
4
Article VI: “Persons charged with genocide … shall be tried by a competent tribunal of the State in
the territory of which the act was committed, or by such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
5
Op. cit
. sub 3, Keynote address, Gérard Dive, p. 2;
ibid.
, Background paper by the Netherlands, p. 2.
6
Op. cit.
sub 3, Background paper by the Netherlands, p. 2-3. E.g. Article 49 of the First Geneva
Convention provides: “The High Contracting Parties undertake to enact any legislation necessary to
provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave
breaches of the present Convention defined in the following Article. – Each High Contracting Party
shall be under the obligation to search for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its
own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand
such persons over for trial to another High Contracting Party concerned, provided such High Contracting
Party has made out a
‚prima facie‘
case. – Each High Contracting Party shall take measures necessary
for the suppression of all acts contrary to the provisions of the present Convention other than the grave
breaches defined in the following Article.” See futher Article 50 of the Second Geneva Convention,
Article 129 of the Third Geneva Convention and Article 146 of the Fourth Geneva Convention.