1 - 4 December, 1997

Working Group 5 covers International Cooperation and Judicial Assistance (Part 7 of the ILC draft statute) and Enforcement (Part 8 of the ILC draft statute). The WG based its work on an abbreviated compilation that resulted from an intersessional meeting held in Siracusa, Italy (A/AC.249/1997/WG.5.CRP.1). The WG is chaired by Peter Kruger (South Africa). In many cases there was no clear consensus on the issues in the plenaries, so more progress was made in informal meetings between delegates.

The first issue was the title of Part 7. Most delegates preferred International Cooperation, possibly with the inclusion of the words legal or judicial, but not extradition. The first articles discussed were

articles 51 (General Obligation to Cooperate) and 52 (Requests for Cooperation: General Provisions). France introduced the articles.

Although France claimed there were no controversial ideas in article 51, which lays out the general obligation for states party to cooperate with the court, there was a lot of disagreement on whether the court will have the authority to make states "comply with" the court's orders or whether states will "respond to" the Court's request for cooperation.

Article 52 contains general provisions that apply to requests for assistance - what national authorities would receive the requests, the language of the requests, issues of confidentiality, cooperation of

non-states party and how to address failures to cooperate.

The issues in art. 52 include whether cooperation by states parties and non-states parties should be dealt with in the same provision, whether in 52(5) there are other competent bodies besides the Security Council who can deal with states which fail to cooperate with the court, whether the Court should be allowed to request cooperation from intergovernmental organizations, and whether to allow the court to direct requests for cooperation directly to the competent state authority as well as through diplomatic channels. One of the most controversial issues was 52(5) dealing with states parties failure to cooperate. What actions might be taken and by whom? There was general consensus that options other than Security Council enforcement were needed, but few suggestions on what these

might be.

Lesotho introduced art. 53 which deals with the surrender/transfer/extradition of accused or convicted persons to the court. The first question is which of the above terms to use to describe the process of turning over an accused or convicted person to the ICC. Most delegates favored either surrender or transfer.

A major issue is whether the obligation of a state party to surrender/transfer an accused is governed by the national legislation of that state party. Delegates were split on this issue. Some were opposed to

the application of national laws, others favored it and still some mentioned that national laws governing procedure should be applied.

Another major issue is whether there are any grounds for refusal to transfer/surrender an accused and, if so, what are they. Many delegations expressed the sentiment that the traditional grounds for refusing

extradition do not apply in the case of the ICC. Many delegates stated that the grounds list in art. 53(2) Option 2(b) and (d) ("requested person is a national of the requested state" and "the request is manifestly unfounded") were unacceptable as grounds for refusal to transfer an accused.

Art. 53 also deals with what happens when the requested state also receives a request from a state for extradition, the requested state has already initiated proceedings against the accused, the obligation to transmit evidence to the court, the actual transfer of accused persons and who pays

the costs involved in the transfer.

Lesotho introduced art. 54 which deals with provisional arrest. The first question is whether this provision is needed or whether art. 28 covers it. The article deals with how a request for provisional arrest is transferred, what information the request should contain, whether a warrant is necessary

and how long a detention is allowed. However, the discussion on article 54 was deferred to an informal group.

Singapore introduced articles 55 and 56 and provided a handout with a list of questions. Article 55 deals with other forms of cooperation than surrender or provisional arrest. Article 56 deals with execution of requests under art. 55.

A major issue under arts. 55(1) and 56(1) is to what extent a request to cooperate is affected by national laws. Other issues include: what types of cooperation may be requested; can states be requested to transfer witnesses without their consent; can states refuse to cooperate and, if so, on what

grounds; how to protect classified information; does the court have an obligation to assist states; what language should the response to a request be in; and who bears the cost of the cooperation?