Cooperation of States

Notion(s) Filing Case
Decision on Arrest of Counsel - 06.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […]

[…]

30. The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[1] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

[1] Registrar’s Submissions of 15 July 2010, para. 9. 

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ICTR Statute Article 28 ICTY Statute Article 29 ICTR Rule Rule 54
Rule 107
Notion(s) Filing Case
Decision on Relocation - 18.11.2008 NTAGERURA André
(ICTR-99-46-A28)

13. […] While stating that States are under a duty to cooperate with the Tribunal at all stages of the procedure under Article 28 of the Statute, the Trial Chamber considered that in the present case, the Registrar had a specific authority to request a State’s cooperation based on his mandate to execute the Tribunal’s decision,[1] and that it could “not conclude that an order requesting the cooperation of Canada is necessary, [finding] on the contrary, that the Canadian Government ha[d] complied with its obligations, in its relations with the Registrar”.[2] The Appeals Chamber thus finds no contradiction in the Decision of the President and the Decision of the Trial Chamber in respect of Article 28 of the Statute.

15. […] The Appeals Chamber finds that the diplomatic initiatives of the Registrar in relation to relocation do not fall within the ambit of the obligation of States to cooperate with the Tribunal under Article 28 of the Statute. Such an obligation pertains solely to the “investigation and prosecution of persons accused of committing serious violations of international humanitarian law”,[3] and hence does not extend to the relocation of acquitted persons. The Appeals Chamber thus finds that, contrary to the President’s Decision and the Trial Chamber’s Decision which both considered requests for cooperation – by a Trial Chamber in the former case and the Registrar in the latter case – with regard to the question whether relocation of acquitted persons fall within the scope of Article 28 of the Statute, there is no legal duty under Article 28 of the Statute for States to cooperate in the relocation of acquitted persons.

[1] Decision of the Trial Chamber [Decision on the Motion by an Acquitted Person for Cooperation from Canada - Article 28 of the Statute, 15 May 2008], para. 4.

[2] Decision of the Trial Chamber, para. 5.

[3] Emphasis added. The limited context of States’ obligation to cooperate under Article 28 of the Statute is also made clear in paragraph 2, which lists a number of specific matters which could form the basis of a request for assistance by Trial Chamber, such as (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; and (e) the surrender or the transfer of the accused to the International Tribunal for Rwanda. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, finding in relation to Article 29 of the ICTY Statute, which mirrors Article 28 of the ICTR Statute, para. 26, that: “the International Tribunal must turn to States if it is effectively to investigate crimes, collect evidence, summon witnesses and have indictees arrested and surrendered to the International Tribunal … The exceptional legal basis of Article 29 accounts for the novel and indeed unique power granted to the International Tribunal to issue orders to sovereign States…”. Emphasis added. 

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ICTR Statute Article 28 ICTY Statute Article 29
Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

53. […] The States and Entities of the former Yugoslavia are obliged to cooperate with the International Tribunal in such a manner as to enable the International Tribunal to discharge its functions. This obligation (which, it should be noted, was restated in the Dayton and Paris Accords), also requires them to allow the Prosecutor and the defence to fulfil their tasks free from any possible impediment or hindrance.

54. […] [W]henever [a State’s] implementing legislation [of the International Tribunal’s Statute] turns out to be in conflict with the spirit and the word of the Statute, a well-known principle of international law can be relied upon to prevent States from shielding behind their national law in order to evade international obligations[1].

See also para. 26.

[1]           See, e.g., the Polish Nationals in Danzig case, where the Permanent Court of International Justice stated that: “It should . . . be observed that . . . according to generally accepted principles . . . a State cannot adduce as against another State its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force” (P.C.I.J., Ser. A/B, no. 44, 1931, at p. 24). In the Georges Pinson case, brought before the France - Mexico Claims Commission, the umpire dismissed the view that in case of conflict between the Constitution of a State and international law, the former should prevail, by pointing out that this view was “absolutely contrary to the very axioms of international law (absolument contraire aux axiomes mêmes du droit international)” (decision of 18 October 1928, in United Nations Reports of International Arbitral Awards, vol. V, pp. 393-94; unofficial translation). See also Article 27, first sentence, of the 1969 Vienna Convention on the Law of Treaties, whereby: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

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ICTY Statute Article 29
Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

16.     I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction,[1] there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism.[2] Such orders have been implemented.[3] In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism.

[1] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010 (“Bagosora et al. Decision of 6 October 2010”), para. 18.

[2] See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Directed to the Republic of Croatia, 18 February 2011, p. 2; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, paras. 36, 45, 67, 71; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Stay of Proceedings, 27 January 2011 (“Bagosora et al. Decision of 27 January 2011”), para. 10; Bagosora et al Decision of 6 October 2010, paras. 20-31.

[3] See, e.g., Prosecutor v. Ante Gotovina et al.,Case No. IT-06-90-A, Communication dated 12 October 2011 from the Ministry of Justice of the Republic of Croatia (Proceedings Pursuant to the Order of the ICTY Trial Chamber Dated 18 February 2011), 14 October 2011 (confidential), Registry Pagination. 3043; Bagosora et al Decision of 27 January 2011, para. 10.

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MICT Statute Article 28