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Testing Co-operation: The International Criminal Court and National Authorities

Published online by Cambridge University Press:  01 June 2008

ROD RASTAN
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Abstract

The ICC Statute sets up a system for enforcement whereby the Court's decisions are to be effected by domestic authorities. The article explores the implications of this institutional design in terms of the legal tools at the Court's disposal and the extent to which the ICC can adjudicate issues related to state co-operation. At the same time, it examines the responsibilities assumed by all states parties under the Statute to secure compliance, including in situations where the requested national authorities are unwilling or unable to co-operate. It suggests that to be sucessful, the co-operation regime under the ICC Statute will require a dynamic set of interactions between the individual state and the collective.

Keywords

co-operationenforcementInternational Criminal Courtnational authoritiesProsecutor
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court
Information
Leiden Journal of International Law , Volume 21 , Issue 2 , June 2008 , pp. 431 - 456
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1. Available at http://www.icc-cpi.int/library/organs/presidency/PK_20061123_en.pdf.

2. See, e.g., A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, (1999) 10 EJIL 144.

3. The ICTY Appeals Chamber employed these terms in the Blaškić Subpoena Interlocutory Appeal, recalling the amicus curiae brief submitted by J. A. Frowein et al. for the Max Planck Institute; Prosecutor v. Blaškić, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-94–14, Appeals Chamber, 29 October 1997.

4. R. Falk, ‘Theoretical Foundations of Human Rights’, in R. Falk (ed.), Human Rights and State Sovereignty (1981), 33.

5. For an elaboration of the characteristics of the horizontal vs. vertical models see A. Swart, ‘General Problems’, in A. Cassese, P. Gaeta, and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 1591; G. Sluiter, International Criminal Adjudication and the Collection of Evidence (2002), 87.

6. Report of the Secretary-General, UN Doc. S/25704, para. 126. See also UN Doc. S/RES/978 (1995) and S/RES/1031(1995). The ICTY Appeals Chamber has stated, moreover, that the provisions on co-operation ‘impose an obligation on Member States of the United Nations towards all other Member States or, in other words, an obligation “erga omnes partes”’; see Blaškić Subpoena Interlocutory Appeal, supra note 3, para. 26.

7. See Cassese, supra note 2, at 144.

8. For studies on ICC implementation legislation see C. Kreß et al. (eds.), The Rome Statute and Domestic Legal Orders Volume II: Constitutional Issues, Cooperation and Enforcement (2005).

9. Rome Statute, Art. 93(10).

10. Ibid., Art. 87(7).

11. Ibid., Art. 59(4). The Council of Europe's advisory body on constitutional matters, the European Commission for Democracy through Law, better known as the Venice Commission, examined whether the prohibition preventing domestic courts from considering, for the purpose of interim release, whether the arrest warrant was properly issued endangered habeas corpus rights under Art. 5 of the European Convention on Human Rights (ECHR). The Commission concluded that the character of deprivation of liberty in question was not of the nature foreseen in Art. 5(1)(c) ECHR, but rather fell within the meaning of Art. 5(1)(f), which authorizes a deprivation of liberty if it is pursuant to ‘the lawful arrest or detention of a person. . . against whom action is being taken with a view to deportation or extradition’; Venice Commission (2001).

12. Non-party states may co-operate either by accepting ICC jurisdiction ad hoc (Art. 12(3) and Rule 44) or by providing assistance on the basis of an arrangement, an agreement, or any other appropriate basis (Art. 87(5)).

13. Rome Statute, Art. 120.

14. Ibid., Arts. 89 and 93.

15. B. Broomhall, ‘The International Criminal Court: A Checklist for National Implementation’, in C. Bassiouni (ed.), ICC Ratification and National Implementing Legislation, 13 Nouvelles Études Pénales (1999), 131.

16. See Cassese, supra note 2, at 165.

17. Informal expert paper: Fact-finding and investigative functions of the Office of the Prosecutor, including international co-operation (ICC-OTP 2003), para. 55.

18. In certain circumstances, for example, a witness may feel intimidated by the presence of domestic officials during questioning; there may be concerns regarding the confidentiality of the interview; or there may be fears over national authorities creating a separate, possibly inconsistent, record of the interview. See discussion on Art. 99(1) infra.

19. As Arbour and Bergsmo have noted, ‘[b]ased on the experience of the two ad hoc Tribunals, merely allowing Tribunal investigators to be present at and assist in the execution process would fall far short of the requirements of effective international investigation and prosecution. How can cases be prepared effectively if the Prosecutor cannot control the gathering of evidence?’; L. Arbour and M. Bergsmo, ‘Conspicuous Absence of Jurisdictional Overreach’, in H. von Hebel, J. Lammers, and J. Schukking (eds.), Reflections on the International Criminal Court (1999), 137. See Bassiouni, C., ‘Observations Concerning the 1997–98 Preparatory Committee's Work’, 1997 (13) Nouvelles Études Pénales 20Google Scholar.

20. See also infra section 1.3.

21. Blaškić Subpoena Interlocutory Appeal, supra note 3, para. 21.

22. By contrast, state officials acting in their private capacity would lose their claim to functional immunity before the Tribunal; ibid., paras. 38–51.

23. Ibid., paras. 25–28.

24. Ibid., para. 55.

25. See, e.g., Rome Statute, Arts. 56(2)–(3), 57(3), 61(3), 64(6), 68, 72(7)(b).

26. Unavailable for this purpose would be Art. 93(1)(a), with respect to the voluntary appearance of persons as witnesses, and Art. 93(7), dealing with the temporary transfer of a person in custody with his or her informed consent. Modalities for the provision of assistance under Art. 93(1)(l) may also be regulated by supplementary agreement – see infra section 2.1

27. Rome Statute, Arts. 72 and 93(4).

28. While a private individual may be under a direct obligation to comply with an ICC summons, the national authorities may still be required to supervise the actual service of such judicial notice or to facilitate its execution. See, e.g., Section 5 of the Finnish implementing legislation, which provides, ‘A witness, on whom a summons to appear issued by the International Criminal Court has been served in Finland, for the purpose of hearing before the Court, shall be under an obligation to comply with the summons’; Act No. 1284/2000 (28 December 2000) [Finland]. See also R. Eerola and A. Välimaa, ‘Finland’, in Kreß et al., supra note 8, at 87.

29. The same considerations would apply in the case of an international organization or its officials (who may enjoy functional immunity).

30. See Blaškić Subpoena Interlocutory Appeal, supra note 3, para. 26. Other provisions enabling the ICC to issue compulsory measures include, inter alia, those related to the issuance of orders against a convicted person for fines, forfeitures, or reparations to which state parties have agreed to give automatic and compulsory effect; Rome Statute, Arts. 75 and 109; ICC RPE, Rules 219–220.

31. Execution of such a request may proceed following ‘all possible consultations’ in the case of a state where the crime is alleged to have occurred, and subject to consultations and ‘any reasonable conditions or concerns’ in the case of third states.

32. As the OTP commissioned ‘informal expert paper’ notes, while the requested state may seek consultations, it is unable to raise concerns and propose conditions that are unreasonable and contrary to the express terms of Art. 99(4), such as by requiring the presence of domestic authorities during the execution of the measure. Moreover, since notice of an intention to undertake non-compulsory measures is distinguished from routine requests under Art. 93, the Prosecutor is relieved from providing such supporting information as is required for a request for assistance (Art. 96) and may withhold, as appropriate, the identity of witnesses or the location of sites to be visited; ‘Fact-Finding and Investigative Functions of the Office of the Prosecutor, Including International Co-operation’ (ICC-OTP 2003), para. 70. See also K. Prost and A. Schlunck, ‘Article 99’, in O. Triffterer (ed.), Commentary on the Rome Statute (1999), 1141; H. Kaul and C. Kreß, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises’, 1999 (2) Yearbook of International Humanitarian Law, 169. See also Regulations of the Court, Reg. 108,.

33. See F. Guariglia and K. Harris, ‘Article 57’, in Triffterer, supra note 31, at 751.

34. Authorization takes the form of a PTC order, and may include specific procedures to be followed; ICC RPE, Rule 115.

35. Former ICTY President Meron has stated, ‘[v]erbal admonitions, even made under Chapter VII, not accompanied by credible sanctions or threats of use of force have not proved adequate to force compliance. The need to back up international criminal tribunals with power, power of enforcement, has been demonstrated once again.’ T. Meron, ‘Comments in the ILA Panel on the ICTY’, 1999 (5) ILSA Journal of International and Comparative Law 347.

36. See M. Harmon and F. Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’, (2004) 2 Journal of International Criminal Justice, at 403.

37. Statement by Luis Moreno-Ocampo, Prosecutor of the ICC (ASP, 30 November 2007), available at http://www.icc-cpi.int/library/asp/Statement_Prosecutor_en_30Nov2007.pdf. For calls for situation-specific support related to the DRC, Uganda, Central African Republic, and Darfur see also statement by Luis Moreno-Ocampo, Prosecutor of the ICC, Eleventh Diplomatic Briefing (10 October 2007), available at http://www.icc-cpi.int/library/organs/otp/ICC-DB11-ST-LMO-ENG.pdf.

38. See Prosecutor's statement to the Eleventh Diplomatic Briefing, ibid.: ‘Silence is undermining us. . .’; ‘I explained to my interlocutors that the Court needed first and foremost words expressing their political support. Their silence could be interpreted as a weakening resolve of the international community on the enforcement of the arrest warrants’; and in reference to northern Uganda, ‘The four criminals have threatened to resume violence if the arrest warrants are not withdrawn; they are setting conditions; it is blackmail; the international community has to ensure protection for those exposed to those threats.’

39. See Section B, Report of the Bureau on co-operation, ICC-ASP/6/21 (19 October 2007), in conjunction with para. 40, ASP Omnibus Resolution ICC-ASP/6/Res.2 (14 December 2007). As the report highlights, ‘such support encompasses a range of issues such as: (a) Promoting the signing, ratification and implementation of the Rome Statute; (b) Supporting the Court's general activities, including public support; (c) Promoting respect for the Court's independence; (d) Supporting situation-specific activities of the Court, including arrest and surrender of wanted persons’.

40. Related issues bearing on state support are the budgetary priorities and strategic expectations set by state parties as expressed through their annual financial commitment to the process, which will perforce dictate much of the institutional capacity of the ICC.

41. See, e.g., the Office of the Prosecutor's request to the Netherlands Forensics Institute of the Dutch Ministry of Justice to conduct certain DNA examinations, Prosecutor v. Kony et al., Decision to Terminate the Proceedings against Raska Lukwiya, ICC-02/04–01/05–248, 11 July 2007; or the military air transport provided by the French authorities for the surrender of Thomas Lubanga, ‘First Arrest for the International Criminal Court’, ICC-CPI-20060302–125-En (17 March 2006).

42. See also Rome Statute, Art. 87(6).

43. A non-party state may be obliged to render co-operation to the ICC under Art. 25 of the UN Charter by virtue of a Security Council Chapter VII resolution.

44. Rome Statute, Art. 54(3)(e); see also ICTY/ICTR, Rule 70.

45. Section A, Report of the Bureau on Co-operation (2007).

46. It has been suggested that, according to Art. 4(2) of the Rome Statute, the ICC can only seek co-operation from a state not party to the Statute ‘by special agreement’ with that state; Situation in Darfur, (Defence) Conclusions aux fins d'exception d'incompétence et d'irrecevabilité (9 October 2006), ICC-02/05–20, at16. This, however, misapplies the scope of Art. 4, which relates to the recognition of the ICC's legal personality on a state's territory, and not the exercise of the Court's jurisdiction or the issuance of co-operation requests. Moreover, the provision refers to those functions and powers the Court may exercise ‘as provided in this Statute’, consistent with the principle of consent under the law of treaties. As Kreß and Prost point out, the principle of consent under the Rome Statute ‘is without prejudice to legal consequences that may stem from other legal sources’, see Triffterer, supra note 31, at 1061. As noted above, one such source would be a Chapter VII resolution from the Security Council.

47. D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999), 130.

48. H. Schermers and N. Blokker, International Institutional Law: Unity within Diversity (2003), 155.

49. D. Sarooshi, ‘The Peace and Justice Paradox’, in D. McGoldrick, P. Rowe, and E. Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues (2004), 106–7.

50. ‘Such decisions [of the Security Council for the maintenance of international peace and security] shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members’; see Art. 48 of the UN Charter.

51. Since Art. 98 serves to ensure that the Rome Statute does not affect the rights under existing treaty law of states not party to the Statute, where an ICC surrender request conflicts with an immunity claim belonging to such a third state, the Court will only be able to proceed with the consent of that state. This may have significant impact on the ability of the Court to secure the arrest and surrender of accused persons, particularly since the declared policy focus of the Prosecutor on ‘persons most responsible’ may well result in the targeting of individuals in senior office. In such circumstances, unless the ICC is able to secure co-operation from the accused's state of nationality or is otherwise able to rely on a Chapter VII resolution imposing compulsory co-operation on UN member states, a fugitive abroad may be able to take shield under the cloak of sovereign immunities.

52. See, e.g., the Darfur referral in relation to personnel attached to UN or African Union (AU) operations; UN Doc. S/RES/1593 (2005), para. 6.

53. G. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000), 223.

54. See ILC Commentary on Draft Articles on the Responsibility of States for Internationally Wrongful Acts, A/56/10 (2001).

55. Rome Statute, Art. 87(6): ‘The Court may ask any intergovernmental organization to provide. . . forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.’

56. See informal expert paper on co-operation (2003), para. 95. Of course, the Council could act also at its own initiative in the absence of a request; D. Sarooshi, ‘Aspects of the Relationship between the International Criminal Court and the United Nations’, 2001 Netherlands Yearbook of International Law 32, at 36.

57. Rome Statute, Art. 54(3)(c); see C. Kreß and K. Prost, ‘Article 87’, in Triffterer, supra note 31, 1065.

58. Where the Security Council did not refer a situation, there is nothing preventing the Court from asking for the co-operation and assistance of the Council pursuant to Art. 87(6) of the Rome Statue and Art. 15 of the UN-ICC Relationship Agreement, ICC-ASP/3/Res.1.

59. It is Security Council practice to ‘call upon’ international organizations to implement its resolutions rather than requiring them to do so; see J. Frowein and N. Krisch, ‘Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’, in B. Simma (ed.), Commentary on the Charter of the United Nations (2002), 715.

60. UN Doc. S/RES/1565 (2005), para. 5(g), but see para. 6. See also interpretative statements on adoption, S/PV5048.

61. Memorandum of Understanding between the United Nations and the International Criminal Court Concerning Co-operation between the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and the International Criminal Court (8 November 2005), available at http://www.icc-cpi.int.

62. Rome Statute, Art. 67; Regulations of the Court, Reg. 20.

63. The condition that materials are to be obtained ‘solely for the purpose of generating new evidence’ does not circumscribe the nature of the documents or information that may be received under the provision, but only the use to which they may be put. In other words, the Prosecutor is not restricted in receiving material of potential evidentiary value under Art. 54(3)(e), but he can only use that material to generate new leads or evidence, or, where that is not possible, he must seek the provider's consent before directly introducing it as evidence in court. The introduction into evidence of materials previously obtained under conditions of confidentiality is also foreseen in Art. 93(8) and Rule 82.

64. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Motion by the Defence to Exclude Anonymous Hearsay Testimony of the Prosecution Witness, ICC-01/04–01/06–693-Anx 1, at 7, 8 November 2006.

65. See in particular Rome Statute, Art. 54(1)(a).

66. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC-01/04–01/06, at 8, 15 May 2006.

67. For a list of factors stipulated by the Prosecutor see Prosecutor v. Joseph Kony et al., Decision on Prosecutor's Application for Leave to Appeal in Part Pre-Trial Chamber II's Decision on the Prosecutor's Applications for Warrants of Arrest under Article 58, ICC-02/04–01/05, at 7–8, 19 August 2005.

68. The Pre-Trial Chamber also relied on Rule 184 and on Reg. 111 of the Regulations of the Court, which stipulate the Registrar's competence to conclude arrangements with the custodial state once the person is ready for surrender; although arguably the arrangements of such modalities once a person has been arrested do not affect the possibility of another organ being responsible for handling the actual notification of the warrants and the seeking of the necessary co-operation to effect the person's arrest. Prosecutor v. Joseph Kony et al., Decision on the Prosecutor's Application for Warrants of Arrest under Article 58, ICC-02/04–01/05, at 5, 8 July 2005.

69. Ibid., at 6. See also Decision on Prosecutor's Application for Leave to Appeal, supra note 66.

70. Prosecutor v. Thomas Lubanga Dyilo, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04–01/06, at 54, 24 February 2006. The Chamber did also recall the ‘specific and compelling circumstances’ test established by PTC II, but noted that no such circumstances existed. See also Prosecutor v. Ahmad Harun and Ali Kushayb, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05–01/07, at 56, 27 April 2007.

71. See Rome Statute, Arts. 56 and 57(3).

72. Prosecutor v. Ahmad Harun and Ali Kushayb, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05–01/07, at 56–7, 27 April 2007.

73. See also Art. 96(2)(b), which requires that requests for co-operation be supported by ‘as much detailed information as possible about the location or identification of any person that must be found or identified in order for the assistance sought to be provided’. On a practical level, one may anticipate the uncertainty created for states in receiving a request for judicial assistance in the abstract.

74. Note also notification of the warrants on Interpol's Red Notice system; see http://www.interpol.int/Public/Wanted/Search/SearchWantedBy.asp?WANTEDBY=ICC. Similar considerations arise from the decision of the same Chamber, in the Lubanga case, to direct the Registrar to transmit requests for co-operation to all state parties for the freezing of assets of Thomas Lubanga for the purpose enabling the early enforcement of future reparation awards to victims, pursuant to Arts. 57(3)(e) and 93(1)(k), without the support of such specific information as is required by Art. 96(2); Prosecutor v. Thomas Lubanga Dyilo, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, ICC-01/04–01/06, at 64, 24 February 2006.

75. J. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’, (2003) 1 Journal of International Criminal Justice 87.

76. Cf. the ICTR Appeals Chamber decision in Barayagwiza, wherein it emphasized the competence of the Tribunal to exercise supervisory powers to review assistance rendered by national authorities pursuant to a request for co-operation, and so supervise action attributable to non-Tribunal organs with regard to all pre-trial actions that occur in the context of its proceedings: ‘[t]he use of such supervisory powers serves three functions: to provide a remedy for the violation of the accused's rights; to deter future misconduct; and to enhance the integrity of the judicial process’; Prosecutor v. Barayagwiza, Decision, ICTR-97–19, paras. 56, 61, 3 November 1999. See also Prosecutor v. Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest, Case No. IT-94–2, AC, para. 28, 5 June 2003; Prosecutor v. Mrksić et al., Decision on the Motion for Release by the Accused Slavko Dokmanović, Case No. IT-95–13/1, para. 57, 22 October 1997; Prosecutor v. Simić et al., Decision Stating Reasons for Trial Chamber's Order of 4 March 1999 on Defence Motion for Evidentiary Hearing on the Arrest of the Accused Todorović, Case No. IT-95–9, TC, 25 March 1999.

77. Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute of 3 October 2006, ICC-01/04–01/06, para. 39, 14 December 2006.

78. A failure to observe these procedures may arise also because of the absence of Rome Statute implementing legislation in the custodial state, which may mean that the ICC has no legal personality under domestic law for the purpose of a national judicial hearing to effect surrender.

79. Cf. Prosecutor v. Nikolić, supra note 75, para. 28.

80. Prosecutor v. Thomas Lubanga Dyilo, Decision on the confirmation of charges, ICC-01/04–01/06, para. 73, 29 January 2007.

81. Prosecutor v. Mucić et al., Decision on Zdravko Mucić's Motion for the Exclusion of Evidence, Case No. IT-96–21, TC, 2 September 1997. The motion was brought under ICTY Rule 95, which provides for the exclusion of evidence obtained by means contrary to internationally protected human rights, to exclude statements of the accused before the Austrian police without the presence of counsel, prior to his transfer. Although Austrian procedural rules precluding the right of a suspect to counsel until after questioning was deemed to be not necessarily at odds with the scope of ‘legal assistance’ under Art. 6(3) ECHR, this conditional right was held to be inconsistent with the unfettered right to counsel under Art. 18(3) ICTY Statute and Rule 42(A)(i). As such, the correct standard to be applied was not only ICTY Rule 95, but also the law of the Tribunal governing the admissibility of evidence.

82. The decision relied in part on the absence of applicable procedural rules in the ICTY Statute and Rules, and partly on the assumption of competence by the Chamber to review the consistency of the requested state's conduct with its domestic law; ICTY Rules 89(D) and 95. Prosecutor v. Mucić et al., Decision on the Tendering of Prosecution Exhibits 104–108, Case No. IT-96–21, TC, paras. 18–20, 9 February 1998. Compare ICTR Trial Chamber II, which has repeatedly declined to exercise review competence over the legality of searches, seizures, and arrests by domestic authorities: Prosecutor v. Ngirumpatse, Decision on the Defence Motion challenging the Lawfulness of the Arrest and Detention and Seeking Return or Inspection of Seized Items, ICTR-97–28, para. 56, 10 December 1999; Prosecutor v. Kajelijeli, Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing, ICTR-98–44A, para. 34, 8 May 2000; Prosecutor v. Karemera, Decision on the Defence Motion for the Restitution of Documents and other Personal or Family Belongings Seized (Rule 40 (C) of the Rules of Procedure and Evidence), and the Exclusion of Such Evidence which May Be Used by the Prosecutor in Preparing an Indictment against the Applicant, ICTR-97–24, para. 4.3.1, 10 December 1999; Prosecutor v. Nzirorera, Decision on the Defence Motion challenging the Legality of the Arrest and Detention of the Accused and requesting the Return of Personal Items Seized, ICTR-98–38, para. 27, 7 September 2000; Prosecutor v. Nyiramasuhuko, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, ICTR-97–21, para. 26, 12 October 2000.

83. As noted above, the provision also affects the scope of inquiry with respect to decisions on the relevance or admissibility of evidence under Art. 69(4).

84. K. Trapp and C. Lonsdale, ‘Excluding Evidence: The Timing of a Remedy’, unpublished ms., Faculty of Law, McGill University, Canada, 1998, cited in D. Piragoff, ‘Evidence’, in Triffterer, supra note 32, at 915.

85. See e.g. in Pre-Trial Chamber examination of state co-operation with regard to the execution of its warrants of arrest: Prosecutor v. Joseph Kony et al., Order to the Prosecutor for the submission of additional information on the status of the execution of the warrants of arrest in the situation in Uganda, ICC-02/04–01/05, 30 November 2006.

86. See 2005 World Summit Outcome, UN Doc. A/RES/60/1(24 October 2005), paras.138–9; Security Council debate S/PV5319 (9 December 2005). The linkage of these crimes to the United Nations' collective security regime in its maintenance of international peace and security is made explicit in the preamble to the Statute: ‘Recognizing that such grave crimes threaten the peace, security and well-being of the world’; preamble citation 3, Rome Statute. See also the address by Luis Moreno-Ocampo, Prosecutor of the ICC, ‘Building a Future on Peace and Justice’ (Nuremberg, 26 June 2007), http://www.icc-cpi.int.

87. See also C. Kreß and K. Prost for the view that the duty to ensure respect of international humanitarian law as contained in Common Article 1 of the 1949 Geneva Conventions, and as recalled and supplemented in Arts. 1 and 89 of the First Additional Protocol thereto, has become part of customary international law, suggesting that the duty to co-operate with respect to war crimes prosecutions has taken on an obligatory character under customary law; although this would appear to be limited to the crimes expressly regulated by those Conventions; ‘Article 87’ in Triffterer, supra note 31, at 1062–3.

88. ‘For the ultimate efficiency and credibility of the Court you created, arrests are required. The Court can contribute to galvanize international efforts, and support coalitions of those willing to proceed with such arrests. But ultimately, the decision to uphold the law will be the decision of States Parties. If States Parties do not actively support the Court, in this area as in others, then they are actively undermining it.’ See Moreno-Ocampo, supra note 85.

89. See discussion on MONUC MoU supra.

90. Prosecutor's statement at the Eleventh Diplomatic Briefing (2007), citing the preamble to the Rome Statute.