CYIL 2015

295

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES

international law, and should contain the following basic elements:

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.

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,

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),

the

envisaged treaty “is meant for all States, regardless of whether or not they are States

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).

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.

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).

Non-paper “Towards a multilateral treaty …”,

op. cit

. sub 18.