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Commentary of 1987 
Mutual assistance in criminal matters
[p.1025] Article 88 -- Mutual assistance in criminal matters

[p.1026] General remarks

3564 The provisions of the Conventions relating to repression supplemented by this Section apply to the repression of breaches both of the Conventions and the Protocol; (1) thus grave breaches of the Conventions and the Protocol fall under universal jurisdiction. To ensure that no grave breach remains unpunished, each Contracting Party (2) has the right and duty to search for persons alleged to have committed, or to have given orders to commit, (3) a grave breach. According to the relevant provision of the Conventions, (4) each Contracting Party may, however, also

"if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ' prima facie ' case".

3565 The possibility of handing over the accused to be tried by another Contracting Party willing to prosecute him is an option open to the Contracting Party in whose territory the accused is or in whose hands he has fallen. In addition, handing over such people is subject to the conditions laid down in the legislation of the requested Party and the other Contracting Party (i.e., the requesting Party) must have made out a ' prima facie ' case against the accused. (5)

3566 National legislation may pose conditions, e.g., it may require that there is an extradition treaty or that reciprocal rights are given by the requesting State. It may impose restrictions such as the quite common prohibition of extraditing its own nationals or a prohibition of extradition if the accused is punishable in the [p.1027] requesting State in a way that is not accepted by the law of the requested State; this last obstacle may be overcome by a guarantee by the requesting State that the punishment in question will not be imposed in that particular case. Moreover, it should be noted that handing over of an accused to another State is often subject to the specialty principle, i.e., the accused may only be tried for the offence for which he is being extradited.

3567 The requirement of a ' prima facie ' case being made against the defendant by the requesting country is not only to protect individuals against excessive or unjustified requests, but also to ensure that penal proceedings as envisaged will not be frustrated or reduced in scope as a result of the transfer to another Contracting Party.

3568 This article is in accordance with the system outlined above. The Conference was presented with two draft articles (78 and 79) dealing separately with mutual assistance and extradition, respectively. In the end it combined the two articles to form one. It abandoned provisions on various special aspects of extradition, keeping only the provisions of paragraph 2, as to be read in conjunction with paragraph 3. Paragraph 1, which is also to be read in conjunction with paragraph 3, confirms the duty to afford such mutual assistance as is necessary for the prosecution of any grave breaches wherever they have been committed and wherever those guilty of them may be. (6)

3569 If its legal system so requires, each Contracting Party must, in accordance with Article 80 ' (Measures for execution), ' take all necessary legislative or other measures for the application of the present article. (7)

3570 This article was adopted in Committee I after a vote, and in plenary by consensus. (8)

Paragraph 1

3571 This paragraph is concerned with mutual assistance in criminal matters in a narrow sense. (9) The Parties to the Protocol undertake to afford one another the greatest possible measure of assistance in any proceedings relating to a grave breach. Such mutual assistance involves the compilation and exchange of [p.1028] information, and in general, any assistance with a view to the tracing, arrest and trial of suspects. (10)

3572 This may concern mutual assistance for criminal proceedings conducted in another country, such as the notification of documents, tracing evidence, handing over files and documents, conducting searches etc. It may also concern handing over the prosecution or the execution of foreign criminal judgments. (11)

3573 The principle of mutual assistance is certainly implied in the common article of the Conventions which makes grave breaches subject to universal jurisdiction, even though the conditions and modalities of such mutual assistance are determined by the law of the Contracting Party to whom the request is made (in accordance with paragraph 3 of the present article).

Paragraph 2

3574 As indicated in the general remarks, the question of the legal basis necessary for extradition is dealt with in very different ways in different countries: some countries make any extradition of a person in their custody subject to the existence of a bilateral or multilateral extradition treaty between themselves and the requesting State. (12) Others do not require a treaty and can proceed to extradition on the basis of national law. (13) Finally, among those which require a treaty for extradition to take place, some consider that Article 49 /50 /129 / 146 common to the Conventions constitutes a sufficient legal basis in this respect. (14)

3575 The Conference was not able to agree on a text which would have established that the Conventions or the Protocol would constitute the legal basis necessary for those States which require a treaty as a basis for any extradition.

3576 Some States wanted to adopt as a general rule that there should, in general, be extradition to the country where the alleged grave breach had been committed. (15) [p.1029] This proposal was only retained in part, namely in the form of an obligation to consider such a request in accordance with the second sentence of this paragraph, because of the opposition of other States to extradition being given special priority, or in general, to give this any systematic preference. (16)

3577 According to the final wording of this paragraph, it is subject to the rights and obligations arising from the Conventions and from article 85 ' (Repression of breaches of this Protocol), ' paragraph 1, of the Protocol. As long as the penal repression of grave breaches is ensured, the right of each Contracting Party to choose betweenprosecuting a person in its power or to hand him over to another Party interested in prosecuting him therefore remains absolute, subject to the legislation of the Party to which the request is addressed, and to any other treaties applicable in the case in question.

3578 On the other hand, there is a duty to co-operate in the matter of extradition when circumstances permit: taking into account the provisions of paragraph 3, this involves giving favourable consideration to a request for extradition from a country justifying its legal interest in the prosecution, if the conditions imposed by the law of the State to which the request is made are satisfied. The interest of another Contracting Party in the prosecution may be founded on the fact that the grave breach was committed in its territory, or that it was committed against its nationals. (17)

3579 Thus a State presented with a request for extradition not only has to choose between prosecuting the accused itself and extraditing him, but also, as the case may be, between the respective merits of two or more concurrent requests for extradition.

3580 The Conference did not adopt a phrase in the draft which was designed to prevent grave breaches from being treated as political offences for the purpose of extradition. The intention of this phrase had been to preclude the requested Party refusing extradition -- assuming that all the other conditions of extradition were satisfied-- on the basis of the argument that the motive or purpose of the breach had been political. Several recent universal or regional treaties, including the Convention on genocide (Article VII ), contain explicit provisions on this subject. This question, too, has to be resolved in each case on the basis of the national legislation and the relevant treaties; (18) once again, without having to settle the question whether the political nature of grave breaches may be invoked, we [p.1030] should stress the absolute need to punish those guilty of grave breaches, with or without extradition.

3581 It should be noted that the right of asylum may not be invoked by persons suspected of acts contrary to the purposes and principles of the United Nations, or of war crimes. (19) Those suspected of war crimes are also excluded from instruments protecting refugees and stateless persons. (20)

Paragraph 3

3582 This paragraph, which covers matters dealt with in the two preceding paragraphs, makes every request, whether it concerns mutual assistance in a narrow sense or extradition, subject to the law of the Party requested: for both aspects it confirms the provisions of the above-mentioned common article of the Conventions regarding handing over accused persons to another Contracting Party.

3583 In all those cases where national law incorporates bilateral or multilateral treaties binding the requested State, or where the legislation accords with such treaties, the second sentence of the paragraph could have been omitted without changing the substance.

3584 Therefore States remain free to draft such legislation and to conclude such treaties as they wish, within the limits imposed by the obligation to repress by penal measures grave breaches of the Conventions and of the Protocol.

' B.Z. '

NOTES (1) [(1) p.1026] Cf. introduction to this Section, supra, pp. 973-977, and commentary Art. 85, para. 1, supra, p. 992;

(2) [(2) p.1026] On this point, cf. the above-mentioned introduction, supra, p. 975 and note 8;

(3) [(3) p.1026] Cf. ibid., pp. 974 and 979-980;

(4) [(4) p.1026] Para. 2 in fine of common Article 49/50/129/146;

(5) [(5) p.1026] This does not exclude the possibility of handing over a suspect to an international criminal tribunal established and competent to deal with such breaches (cf. introduction to this Section, supra, p. 975, note 10);

(6) [(6) p.1027] On this article and related problems, we refer to the following works quoted in the introduction to this Section (supra, p. 973, note 2): M.C. Bassiouni, op. cit., pp. 196, 211-217; E.J. Roucounas, op. cit., pp. 63-64, 67, 136-138; B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., pp. 200, 202-203; Ph. Bretton, "La mise en oeuvre...", op. cit., pp. 412-413; G.I.A.D. Draper, "The Implementation...", op. cit., pp. 37-42; "Incidences...", op. cit., p. 426; H.-H. Jescheck, "War Crimes", op. cit., p. 297; G.I.A.D. Draper, "War...", op. cit., p. 324; M. Aubert, op. cit., pp. 372-374;

(7) [(7) p.1027] Cf., for example, the conclusions in this regard in "Incidences...", op. cit., p. 426;

(8) [(8) p.1027] Cf., respectively, O.R, IX, p. 394, CDDH/I/SR.70, para. 43 (vote: 70-0-3); O.R. VI, p. 309, CDDH/SR.45, para. 13;

(9) [(9) p.1027] In the broad sense, as used in the heading of the article and in the second sentence of paragraph 3, the expression also covers questions relating to extradition;

(10) [(10) p.1028] Cf. For example, Resolution 3074 (XXVIII) of the United Nations General Assembly, which was often cited in the discussions, on the principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity;

(11) [(11) p.1028] Examples taken from the Swiss federal law on international mutual assistance in criminal matters of 20 March 1981 (RS 351.1) which applies to grave breaches of humanitarian law; on this point, cf. M. Aubert, op. cit., pp. 372-374;

(12) [(12) p.1028] Cf. O.R. IX, p. 158, CDDH/I/SR.53, para. 45; p. 153, para. 52;

(13) [(13) p.1028] Cf. ibid., p. 25, CDDH /I/SR.43, paras. 48-49;

(14) [(14) p.1028] Cf. ibid., pp. 412-413, CDDH/I/SR.71, para. 63;

(15) [(15) p.1028] Based on the above-mentioned Resolution 3074 (XXVIII) (supra, note 10) these countries had submitted amendment CDDH/I/310 and Corr.1, and Add.1 and 2 (O.R.III, p. 334) to this effect. This rule was contained in the Moscow Declaration of 30 October 1943 on German atrocities, adopted by the Soviet Union, the United Kingdom and the United States; the rule was said to be "without prejudice to the case of the major criminals whose offences have no particular geographical localization". On these points this Declaration was confirmed by the London Agreement of 8 August 1945. The 1948 Convention on genocide recognizes the competence of the State where the crime was committed; the 1968 Convention on non-applicability of statutory limitations requires making possible "the extradition, in accordance with international law"; the above-mentioned Resolution 3074 (XXVIII) provides, in addition to the rule that was indicated, that every State has the right to try its own nationals for war crimes; the formulation of 1950 of the Principles of Nuremberg and the Draft Code so far do not deal with this question (on these various texts, cf. introduction to this Section, supra, pp. 977-979. Cf. also commentary Art. 75, para. 7, supra, p. 887;

(16) [(16) p.1029] Cf. O.R. IX, p. 149, CDDH/I/SR.53, para. 9; p. 151, para. 16; p. 156, para. 36; p. 158, para. 42; p. 176, CDDH/I/SR.54, paras. 74-75;

(17) [(17) p.1029] The sponsors of amendment CDDH/I/310 and Corr.I and Add.1 and 2 (cf. supra, note 15) recognized the legitimacy of such a request: cf. O.R. IX, p. 172, CDDH/I/SR.54, para. 49;

(18) [(18) p.1029] On the question as a whole, cf. C. van den Wijngaert and B. de Schutter, "Terrarisme individuel et terrorisme d'Etat: une différence d'analyse", ' Revue internationale de criminologie et de police technique ', 1982, p. 263; see also L. Oppenheim, op. cit., pp. 588-589 (note 4); M.C. Bassiouni, op. cit., pp. 199-200; B.V.A. Röling, "Aspects of the Criminal Responsibility...", op. cit., p.202; G.I.A.D. Draper, "The Implementation...", op. cit., p. 40; M. Aubert, op. cit., p.372;

(19) [(19) p.1030] See, respectively, the Universal Declaration of Human Rights of 1948, Art. 14; and the 1967 Declaration on Territorial Asylum (Resolution 2312 (XXII) of the United Nations General Assembly), Art. 1;

(20) [(20) p.1030] Convention of 1951 Relating to the Status of Refugees, Art. 1, Section F, sub-para. (a); Convention of 1954 Relating to the Status of Stateless Persons, Art. 1, para. 2(iii)(a); 1950 Statute of the Office of the United Nations High Commissioner for Refugees, para. 7(d);