Position Paper by the Transnational Radical Party and There Is No Peace Without Justice - Peace With Justice International, to the United Nations Preparatory Committee on the Establishment of an International Criminal Court

A PROPOSAL ABOUT CO-OPERATION AND JUDICIAL ASSISTANCE

The problem related to the effectiveness of the ICC is certainly among the main questions that the Preparatory Committee is called to address.

With regard to such an important issue, it is essential to constantly keep in mind the question of co-operation between States and the ICC.

Just as when weighing the ICC jurisdiction and national jurisdictions on a pair of scales, in our opinion primacy should be pending in favor of the ICC, in the same way no discretionary powers should be left to single States in deciding whether or not to co-operate, and when.

The ICC Statute should exhaustively and peremptorily provide for the various mechanisms of co-operation to be activated from time to time according to the different cases.

What such mechanisms should provide for ?

1. The timely enactment of new legislative and administrative provisions necessary to the effectiveness of the Statute's provisions, and the adaptation by the Member States of those already existent.

2. The timely adoption, by the national security and judicial bodies, of the measures necessary to implement the ICC provisions.

3. The automatic acknowledgement by the Member States of the sentences passed by the Court.

Yet the draft Statute does not provide for any consequences in case of inactivity by the pertinent national authorities. That in our opinion represents another critical point to dwell on, making necessary to provide for two alternative paths:

(a) a substitution mechanism to temporary replace the national authorities with a supranational body, at least during the investigation stages.

(b) a collective system of sanctions towards those States responsible of serious and persistent unfulfilment of the co-operation obligations deriving from the Statute.

With regard to item (a), the establishment of an international group of detectives (an embryo of an actual and proper international police) is advisable. Such a group, empowered with full freedom of action, motion, and self-defence inside the Member States, should be in charge of the duty of carrying out the necessary investigations in the proper times and ways authorized by the ICC, as well as the transfers ordered by the Court. It would not only represent a perceptible symbol of the new order of international law currently in progress, but also it mainly would carry out duties useful to the Court. In fact, the existence of such a group would increase the effectiveness of the entire ICC system, reducing the risk of its paralysis due to possible unfulfilment of national co-operation. Furthermore, it could shoulder those annoying duties related to the transfers, that could bring about many delays to the Court's activities because of national bureaucracies' slowness. Eventually, a coordination duty of the vari

ous national police bodies by such an international investigation group could be provided for.

With regard to item (b), collective sanctions towards the Member States should be provided by the UN Security Council at the request of the Court, particularly if, as is to be hoped, the ICC Statute will become an integral part of the UN Charter. This mechanism, also, to the end of the creation of a coherent and functional system of international organizations, of which system the UN, opportunely reformed and democratized, could aspire to become the decisional seat. However, it is important to highlight that, even if the ICC Statute becomes integral part of the UN Charter, no interference should take place from the UN Security Council with the Court's trigger mechanism.