Section A. Cooperation between States
European Convention on Mutual Assistance in Criminal Matters
Under Article 1(1) of the 1959 European Convention on Mutual Assistance in Criminal Matters, the parties undertake
to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.
According to Article 1(2), the Convention does not apply, however, to “arrests, the enforcement of verdicts or offences under military law which are not offences under ordinary criminal law”.
Additional Protocol I
Article 88(1) of the 1977 Additional Protocol I provides:
The High Contracting Parties shall afford one another the greatest measure of assistance in connexion with criminal proceedings brought in respect of grave breaches of the [1949 Geneva] Conventions or of this Protocol.
OAU Convention against Mercenarism
Article 10 of the 1977 OAU Convention against Mercenarism provides:
The contracting States shall afford one another the greatest measure of assistance in connection with the investigation and criminal proceedings brought in respect of the offence and other acts connected with the activities of the offender.
UN Mercenary Convention
Article 13 of the 1989 UN Mercenary Convention provides:
States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences set forth in the present Convention, including the supply of all evidence at their disposal necessary for the proceedings. The law of the State whose assistance is requested shall apply in all cases.
The provisions of paragraph 1 of this article shall not affect obligations concerning mutual judicial assistance embodied in any other treaty.
US-Soviet Memorandum of Understanding on the Pursuit of Nazi War Criminals
Article 1 of the 1989 US-Soviet Memorandum of Understanding on the Pursuit of Nazi War Criminals provides that the Office of the Procurator General of the USSR and the US Department of Justice “agree to provide legal assistance on a reciprocal basis in the investigation of individuals who are suspected of having committed Nazi war crimes or of having assisted in the commission of such crimes”.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 19 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property concerning “Mutual legal assistance”, which according to its Article 22(1) also applies to armed conflicts not of an international character, provides:
1. Parties shall afford one another the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought in respect of the offences set forth in Article 15, including assistance in obtaining evidence at their disposal necessary for the proceedings.
2. Parties shall carry out their obligations under paragraph 1 in conformity with any treaties or other arrangements on mutual legal assistance that may exist between them. In the absence of such treaties or arrangements, Parties shall afford one another assistance in accordance with their domestic law.
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
1. States Parties shall afford one another the greatest measure of mutual legal assistance in connection with criminal proceedings brought in respect of an offence of enforced disappearance, including the supply of all evidence at their disposal that is necessary for the proceedings.
2. Such mutual legal assistance shall be subject to the conditions provided for by the domestic law of the requested State Party or by applicable treaties on mutual legal assistance, including, in particular, the conditions in relation to the grounds upon which the requested State Party may refuse to grant mutual legal assistance or may make it subject to conditions.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
In paragraphs 11 and 12 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, the parties agreed to institute, with the cooperation of the ICRC, a confidential enquiry system regarding allegations of violations of IHL.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000)
Article 4 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law states: “Violations of international … humanitarian law norms that constitute crimes under international law carry the duty to … cooperate with and assist States … in the investigation and prosecution of these violations.”
Argentina’s Law of War Manual (1989), referring to Article 88 of the 1977 Additional Protocol I, states: “The contracting parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of grave breaches of the [1949 Geneva] Conventions and of [the 1977 Additional Protocol I].”
Belgium’s Law of War Manual (1983) states:
The States Signatory to the [1949 Geneva] Conventions have engaged to take a series of measures in order to promote their respect. These measures can be summarized as follows:
3) search for, identification and prosecution before the own courts of the authors of grave breaches, whatever their nationality may be, or extradition of these authors to the State which requests for it, within the limits of the legislation in force.
Cameroon’s Instructor’s Manual (2006) states with reference to Article 88 of the 1977 Additional Protocol I that “according to the notion of mutual assistance … the parties … shall accord assistance to one another and collaborate in the pursuit of persons who have violated the law of armed conflict and international humanitarian law”.
Chad’s Instructor’s Manual (2006) states:
Respect for IHL by combatants depends on two factors, prevention and repression.
(b) The measures and means of repression [include]:
- International cooperation.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
II.1. National repression
Grave breaches of international humanitarian law need to be prosecuted not only by the detaining power, but by each State in the power of which the presumed culprit finds himself. One therefore speaks of universal jurisdiction. States must therefore give mutual legal assistance, for example by extraditing an accused if a State renounces criminal prosecution, or by transmitting means of evidence.
Djibouti’s Manual on International Humanitarian Law (2004) states:
Means of suppression
These are means which implement the obligation of parties to a conflict to prevent and stop any violation [of IHL]. Concerning mechanisms of suppression, the following are stressed in particular:
- judicial assistance between States in criminal matters.
Hungary’s Military Manual (1992) states: “The judicial procedure [in case of breaches or violations of IHL] also comprises: assistance between belligerent parties”.
Israel’s Manual on the Rules of Warfare (2006) states:
In 1998 Israel signed the Rome Statute; however, in a Government resolution in June 2002, Israel announced that it did not intend to ratify the Statute. Today, the State of Israel is not a member of the Criminal Tribunal at The Hague, and has sent a letter to the United Nations announcing that it does not intend to ratify the Tribunal’s Statute. Various entities have announced that they will forward complaints to the International Criminal Tribunal in The Hague relating to various acts performed by Israel in the West Bank and the Gaza Strip. The State of Israel does not perpetrate war crimes and its acts are covered by routine legal advice. If any Israeli soldier commits any of the crimes addressed by the Statute, Israel itself will put him on trial.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy’s IHL Manual (1991) notes: “International cooperation for the search, arrest, extradition and punishment of persons who have committed [war crimes] is established.”
The Military Manual (1993) of the Netherlands states: “in general, States are obliged to provide judicial assistance to each other to the maximum extent possible with respect to penal procedures concerning grave breaches”.
The Military Manual (2005) of the Netherlands provides:
The universality principle is closely linked to the rule on the transfer of persons suspected of having committed or ordered a war crime. Generally, States are bound to grant each other as much mutual assistance as possible in matters of criminal procedures relating to serious violations. They must cooperate as much as possible in handing over war criminals.
New Zealand’s Military Manual (1992) provides: “[The 1977 Additional Protocol I] Art. 88 requires the parties to assist one another in connection with grave breaches, including cooperation in matters of extradition.”
Peru’s IHL Manual (2004) states: “[The parties to the conflict] must provide mutual assistance and cooperate in the repression of grave breaches of international humanitarian law.”
Peru’s IHL and Human Rights Manual (2010) states: “[The parties to the conflict] must provide mutual assistance and cooperate in the repression of grave breaches of international humanitarian law.”
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) provides that each party to the 1949 Geneva Conventions shall cooperate to extradite persons who have committed grave breaches of IHL.
Spain’s LOAC Manual (1996) provides: “States shall provide each other with the greatest possible mutual assistance for the penal repression of violations, at national and international level.”
Spain’s LOAC Manual (2007) states:
States also undertake to act jointly or individually, in co-operation with the United Nations and in conformity with the Charter of the United Nations, to deal with serious violations of the [1949 Geneva] Conventions and the [1977 Additional] Protocols.
Sweden’s IHL Manual (1991) notes that the 1977 Additional Protocol I “states that the contracting parties shall to the greatest extent possible assist each other in connection with penal procedures instituted as a consequence of grave breaches of the  Geneva Conventions or [the 1977 Additional Protocol I]”.
Ukraine’s IHL Manual (2004) states:
In case of serious violations of international humanitarian law, parties to the armed conflict shall take measures individually and jointly, as well as in cooperation with the United Nations according to the Charter of the United Nations.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Ensuring respect for the law of armed conflict is a universal responsibility. International co-operation is encouraged by Additional Protocol I, which provides for:
c. mutual assistance in criminal proceedings brought in respect of grave breaches of the conventions or protocol, including assistance with evidence and extradition.
Afghanistan’s Law on Combating the Financing of Terrorism (2004) states:
Article 18. Cooperation
The authorities of the Islamic Republic of Afghanistan agree to cooperate [to the extent] possible with those of other States for the purposes of information exchange, investigation, and proceedings, provisional measures and confiscations of instruments and proceeds associated with [the] financing of terrorism for purposes of … mutual technical assistance.
Article 21. Purpose of Requests for Judicial Cooperation
1. At the request of a foreign state, requests for judicial cooperation relating to the offences indicated in this law … shall be executed in the following manner:
a) gathering evidence or taking depositions;
b) providing assistance to make detained persons or others available to the judicial authorities of the requesting State in order to give evidence or assist in investigations;
c) serving judicial documents;
d) carrying out searches and seizures;
e) examining objects and sites;
f) providing information and evidentiary items; and
g) providing originals or certified copies of relevant files and documents, including bank statements, accounting documents, and records showing the operations of a company or its business activities.
Argentina’s Law on International Cooperation on Criminal Matters (1997) stipulates that “Argentina shall do its utmost to assist in the investigation, conviction and punishment” of crimes corresponding to the jurisdiction of any State requesting such assistance, and shall act “most diligently” in such procedures. As regards the investigation and conviction of such crimes, the Law provides that “assistance shall be provided even if the act in question is not a crime in Argentina”, although under such circumstances there would be some exceptions to the types of assistance provided.
Australia’s International Transfer of Prisoners Act (1997), as amended in 2004, has as its objects:
(a) to facilitate the transfer of prisoners between Australia and certain countries with which Australia has entered agreements for the transfer of prisoners so that the prisoners may serve their sentences of imprisonment in their countries of nationality or in countries with which they have community ties; and
(b) to facilitate the transfer of prisoners to Australia from countries in which prisoners are serving sentences of imprisonment imposed by certain war crimes tribunals.
The Act defines “tribunal” as “(a) the Former Yugoslavia Tribunal; or (b) the Rwanda Tribunal”.
In a later amendment to the Act, sentences of imprisonment imposed by US military commissions have been included, as follows:
For the purposes of this Act:
(a) a military commission of the United States of America is taken to be a court or tribunal of the United States of America; and
(b) any punishment or measure involving deprivation of liberty ordered by a military commission of the United States of America is taken to have been ordered by a court or tribunal of the United States of America in the exercise of its criminal jurisdiction; and
(c) any direction or order given or made by a military commission of the United States of America with respect to the commencement of such punishment or measure is taken to have been given or made by a court or tribunal of the United States of America.
Australia’s International Transfer of Prisoners (Military Commission of the United States of America) Regulations (2007), states in its Schedule 1 (Arrangement):
1. The undersigned Governments [the United States and Australia] are to afford each other the widest measure of cooperation in respect of the transfer of prisoners in accordance with the provisions of this Arrangement.
2. A person sentenced by a United States military commission in the applicable United States area may be transferred to Australia in accordance with the provisions of this Arrangement, in order to serve the sentence imposed on him or her.
3. Transfer may be requested only by the Government of Australia or the Government of the United States of America, upon application to either by a prisoner desiring to be transferred under this Arrangement.
Belgium’s Law Containing the Preliminary Title of the Code of Criminal Procedure of 1878, as amended, provides:
Seized with a complaint pursuant to the paragraphs above [including for serious violations of international humanitarian law] the Federal Prosecutor requires the investigating magistrate to conduct an enquiry into the complaint unless … on the basis of the specific circumstances of the case, it is clear that, in the interest of the proper administration of justice and in compliance with Belgium’s international obligations, the matter should be brought … before a court in the place where the facts occurred, or before the courts of the State of which the perpetrator is a national or those of the place where he is present, provided that that court displays the qualities of independence, impartiality and equity resulting inter alia from the relevant international commitments binding on Belgium and that State.
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
Seized with a claim pursuant to paragraph 2, the Federal Prosecutor shall request the investigating judge to conduct an investigation into the claim, except if … it results from the specific circumstances of the case that, in the interest of the good administration of justice and in compliance with Belgium’s international obligations, this case should be brought before … either the court of the place where the acts were committed, or before the court of the State of which the perpetrator is a national, or before the court of the place where he may be found, and to the extent that this court is competent, independent, impartial and fair.
Germany’s Law on International Legal Assistance in Criminal Matters (1982) states:
§ 1 Scope of application
(1) Legal assistance in criminal matters with foreign countries is based on this law.
(3) Provisions of international agreements, insofar as they have become directly applicable domestic law, have priority over the provisions of this law.
Portugal’s Law on International Judicial Cooperation in Criminal Matters (1999), as amended in 2001, applies to the following forms of international cooperation in criminal matters: extradition; transfer of proceedings in criminal matters; enforcement of criminal judgments; transfer of persons sentenced to any punishment, or measure, involving deprivation of liberty; supervision of conditionally sentenced or conditionally released persons; and mutual legal assistance in criminal matters. These “shall apply, as appropriate, to the cooperation between Portugal and any international judicial entities established within the framework of treaties or conventions that bind the Portuguese State”.
Rwanda’s Organic Law Determining the Organization, Functioning and Jurisdiction of Courts (2004) provides:
The High Court of the Republic shall have jurisdiction to try any person, including non-nationals found within the territory of the Republic of Rwanda, alleged to have committed, outside the national boundaries, any crimes falling within the category of international or cross-border crimes, especially the crimes of genocide, crimes against humanity, war crimes, terrorism, hostage taking, drug trafficking, money laundering, theft of motor vehicles for sale abroad, human trafficking, especially of young girls, slavery and other crimes of similar nature. When the High Court of the Republic is sitting in the exercise of its universal jurisdiction, the President of the Supreme Court may, in the interest of justice and with a view to harmonizing universal jurisprudence over international and cross-border crimes, seek the cooperation of the United Nations or a member State in which the crime was committed, to provide foreign judges to sit with their Rwandan counterparts to hear such cases or request foreign courts to conduct some of the investigations on behalf of Rwandan courts.
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Chapter 1. General provisions
Article: 1 Scope of application
This Organic Law shall regulate the transfer of cases and other related matters, from the International Criminal Tribunal for Rwanda and from other States to the Republic of Rwanda.
This Organic Law shall also determine the procedures of admissibility of evidence in Rwanda collected by the ICTR in proceedings before a competent court.
Chapter 7. Final provisions
Article: 24 Applicability of this Organic Law to other matters of transfer of cases between Rwanda and other States
This Organic Law applies mutatis mutandis
in other matters where there is transfer of cases to the Republic of Rwanda from other States or where transfer of cases or extradition of suspects is sought by the Republic of Rwanda from other States.
Switzerland’s Federal Act on International Mutual Assistance (1981), as amended to 2010, states in its general provisions:
1. Unless other federal acts or international agreements provide otherwise, this Act shall govern all procedures of international cooperation in criminal matters, and in particular:
b. assistance aimed at supporting criminal proceedings abroad (Part Three);
c. the transfer of proceedings and punishment of offences (Part Four);
d. the execution of foreign criminal judgments (Part Five).
3. This Act applies only to criminal matters in which recourse to the courts is permitted under the law of the requesting State.
4. This Act confers no right to international cooperation in criminal matters.
[footnotes in original omitted]
The Act further states:
Art. 2 Foreign proceedings
A request for cooperation in criminal matters shall not be granted if there are reasons to believe that the foreign proceedings
a. do not meet the procedural requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, or the International Covenant on Civil and Political Rights of 16 December 1966;
b. are being conducted so as to prosecute or punish a person on account of his or her political opinions, his or her belonging to a certain social group, his or her race, religion, or nationality;
c. could result in aggravating the situation of the defendant for any of the reasons mentioned under letter b; or
d. have other serious defects.
Art. 3 Nature of the offence
1. A request shall not be granted if the subject of the proceedings is an act which, in the Swiss view, is of a predominantly political nature, constitutes a violation of the obligation to perform military or similar service, or appears to be directed against the national security or military defence of the requesting State.
2. The plea that an act is of a political nature shall not be taken into account under any circumstances:
a. in cases of genocide;
b. in cases of crimes against humanity;
c. in cases of war crimes; or
d. if the act appears particularly reprehensible because the offender, for the purpose of extortion or duress, has endangered or threatened to endanger the life or limb of persons, especially by hijacking aircraft, using means of mass extermination, causing a catastrophe or taking hostages.
[footnotes in original omitted]
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Art. 54 Scope of Application of this Code
1. The provision of international mutual assistance and the mutual assistance proceedings are governed by this Code only to the extent that other federal acts and international agreements make no provision therefor.
In 2006, in the Constitutional Case No. C-370/06, the Plenary Chamber of Colombia’s Constitutional Court stated:
The human rights and international humanitarian law treaties do not specifically recognize the rights to peace, truth, justice and reparation. But they do refer to … States’ obligation to cooperate in the prevention and punishment of international crimes and serious violations of human rights.
In 2007, in the Constitutional Case C-095/07
, the Criminal Chamber of Colombia’s Constitutional Court stated that “various treaties on human rights and international humanitarian law mention … the obligation of States to cooperate in the prevention and punishment of international crimes and serious violations of human rights, and in restoring victims’ rights.”
(footnote in original omitted)
In 2010, in the DRC case, Germany’s Federal Court of Justice decided to remand in pre-trial custody a national of the Democratic Republic of the Congo (DRC) who had been living in Germany. The Court summarized the facts of the case as follows:
The subject of the arrest warrant is the allegation that as the president of the paramilitary militia organization “Forces Démocratiques de Libération du Rwanda” [Democratic Forces for the Liberation of Rwanda] (hereafter FDLR), which is operating in the provinces North Kivu and South Kivu of the Democratic Republic of [the] Congo … , the accused is criminally liable because he is responsible as superior for crimes against humanity and war crimes and as the ringleader of a terrorist group abroad.
The Court held:
6. The particular conditions necessary for extending pre-trial custody beyond the period of six months … are fulfilled. Because of particular difficulties faced by the investigations and due to their sizable scope, it has not yet been possible to reach a judgment and therefore the continuation of pre-trial custody is justified.
After the accused’s arrest, a number of investigations were conducted, some of which were extensive and time-intensive. The crimes were largely committed in the DRC and thus in a Central African country. Their prosecution by the German criminal authorities required inter alia
various investigative measures involving mutual assistance requests to foreign authorities. Submitting requests for mutual assistance to other countries and the United Nations requires a sizable effort. This is particularly true for the questioning of witnesses in the DRC. The situation there requires that intensive measures be taken to locate witnesses and to prepare and carry out the questioning.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris
In 2010, in the Couso case, which concerned the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America, the Criminal Chamber of Spain’s Supreme Court held:
E) Even admitting for purely dialectic purposes that doubts could exist … concerning the rational indications of an offence found by the examining magistrate, it would still be probable that an offence was committed, which would thus have to be determined in an oral trial.
F) … [T]he Treaty on Mutual Judicial Assistance on criminal matters between Spain and the US, signed on 20 November 1990 and ratified on 23 April 1993, relating to Article 27
of the  Vienna Convention
on the Law of Treaties [on the observance of treaties], [has been manifestly unfulfilled by the US].
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.”
In 2001, in the Ballestas case
, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated: “An unfailing means [to ensure] the application of Humanitarian law internationally is that States grant each other mutual legal assistance in criminal matters.
(emphasis in original)
The tribunal held:
It is a firm and incontrovertible fact that political armed struggle must be governed by the laws of war. As a result, attacks against innocent [people] or against private rights or the rights of individuals are absolutely unjustified, even where a political motive is claimed.
Thus: if such an attack against innocent [persons] and private rights is carried out with such a violence and malicious intent that it causes unnecessary suffering, havoc and terror, it would [constitute the offence of] indiscriminate terrorism, namely [those acts] that are not selective when choosing their targets and expressly target the innocent.
Terrorism, and particularly indiscriminate terrorism, ignores the requirements of Humanitarian … law; it endangers innocent human lives and many times destroys them …
Terrorism takes many forms, as it can be committed through several means. One is the kidnapping [hijacking] of planes, which is one of the acts of which … José María Ballestas Tirado is accused in Colombia. Another is the kidnapping of persons, which is also one of the acts of which … José María Ballestas Tirado is criminally accused (“extortive kidnapping”) in Colombia …
… Solidarity must unite States in the rejection of this type of action. An international problem must have an international solution and, faced with the universalization of terrorism
, it is an international duty to lend all the cooperation to this effect: it is indispensable for the application of Humanitarian law that States grant each other mutual legal assistance in criminal matters.
[emphasis in original]
In 2002, upon ratification of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Belgium declared:
The Government of the Kingdom of Belgium shall not act upon a request for judicial cooperation where doing so would lead to discrimination between governmental and non-governmental forces in violation of the principle of international humanitarian law of equality of parties to a conflict, including in the event of armed conflict of a non-international nature.
In an annual report issued in 2003 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated regarding the work of the War Crimes Section of its Department of Justice (DOJ):
DOJ’s War Crimes Section continues to strengthen its working relationship with the Tribunals and European governments. DOJ began working with European governments and police officials on a response to the issue of the movement of war criminals across borders and the sharing of best practices. The section is also actively involved in providing support to the RCMP [Royal Canadian Mounted Police] in several on-going investigations in Europe and Africa.
In an annual report in 2004 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated regarding the work of the War Crimes Section of its Department of Justice (DOJ):
DOJ’s War Crimes Section continues to strengthen its working relationship with the International Tribunals and European governments by meeting frequently with their representatives.
The International Assistance Group (IAG) of the Department of Justice Federal Prosecution Service works with the RCMP [Royal Canadian Mounted Police] and the Department of National Defence to support the International Criminal Tribunals for Rwanda and the Former Yugoslavia. IAG also reviews war crimes related requests for mutual legal assistance from foreign governments.
In an annual report issued in 2005 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
The no safe haven policy means that persons involved or complicit in crimes against humanity or war crimes are not welcome in Canada. The partners in the coordinated War Crimes Program are the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), the Department of Justice (DOJ) and the Royal Canadian Mounted Police (RCMP) …
Taking action against war crimes requires a great deal of international cooperation. Program partners take part in international conferences, training … and provide assistance to other countries and the international criminal tribunals.
The partners in the War Crimes Program have been internationally recognized for their cooperation, assistance and sharing of expertise in the development of other nations’ war crimes programs.
The RCMP provides assistance to foreign investigative agencies, which are not permitted to conduct criminal investigations in Canada, with regard to the rights of witnesses in Canada. In the past year, the RCMP War Crimes Section was responsible for the Canadian portion of a number of foreign investigations from countries such as Germany, Italy, the Netherlands, Chile and Denmark.
CIC’s visa officers abroad are responsible for reporting and liaison on global migration, country situations and emerging trends and have developed ongoing relationships with host countries, other diplomatic missions, international organizations and the international criminal tribunals.
DOJ officials visited several foreign countries to discuss access for investigative purposes. The DOJ also hosted officials and responded to requests for cooperation from several countries including the United States, Denmark, Norway and Chile.
In June 2004, officials from Australia, the United States and the United Kingdom visited Canada for a joint working level meeting with Canada’s War Crimes Program partners to discuss issues of mutual concern, including screening methods, data exchange, caseloads, research, statistics and relations with international criminal tribunals.
In January 2005, officials of the United States Office of Special Investigations (OSI) visited Ottawa to meet with the partners in Canada’s War Crimes Program. The OSI has recently been granted legislative authority to investigate modern war crimes and crimes against humanity cases. The partners shared information on the coordinated war crimes program, legislation, investigative practices and prevention and enforcement activities.
Within the limits of the law, the CBSA shares intelligence and research material with the international criminal tribunals and like-minded countries, particularly the United States, Australia, New Zealand, the United Kingdom and other European countries.
In an annual report issued in 2006 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
The chief objective of the program is denial of safe haven in Canada to persons involved in war crimes, crimes against humanity or genocide. At the same time, Canada contributes to the global fight against impunity for war criminals through cooperation with other countries and international tribunals.
CBSA [Canada Border Services Agency] researchers provide support and intelligence not only internally, but also to national and international partners and international criminal tribunals.
The RCMP [Royal Canadian Mounted Police] is responsible for criminal investigations, with legal support from the DOJ [Department of Justice], and targets individuals in Canada alleged to have participated in crimes against humanity, war crimes or genocide. The RCMP responds to allegations from witnesses, foreign governments, community groups, non-governmental organizations and open source information.
… RCMP investigators carry out witness interview trips under bilateral agreements with foreign governments and police officials.
The program partners have continued to examine allegations of modern war crimes, including referrals from CIC [Citizenship and Immigration Canada]/CBSA and complaints received from the public, other countries and international institutions, to determine whether individuals should be referred for criminal investigation.
The DOJ is responsible for handling allegations of crimes against humanity, war crimes and genocide related to World War II. Investigations are pursued with the assistance of the RCMP. These investigations are complex, often taking several years to complete, and require the expertise of experienced lawyers, analysts, historians and RCMP officers. Historical research is used to build each case and to compile potential witness lists. Most witnesses live overseas, mainly in central and eastern Europe. The DOJ must first seek the cooperation of foreign countries before lawyers and RCMP officers can conduct interviews.
Canada’s War Crimes Program plays a leading role in international efforts to bring war criminals to justice. Mutual legal assistance and exchanges of information with other countries and international bodies are an essential component of the global battle against impunity. Reciprocal relationships with international tribunals and other countries permit the sharing of resources, expertise, information, research and logistical support.
Program partners provide assistance and information to the international criminal tribunals for Rwanda and the former Yugoslavia. All the partners are represented at the Interdepartmental Working Group for the international tribunals, which examines the tribunals’ requests for assistance from Canada. They also work with the International Assistance Group of the DOJ’s Federal Prosecution Service and the Department of National Defence to support the international tribunals. The International Assistance Group reviews requests relating to war crimes or crimes against humanity for mutual legal assistance from foreign governments, international tribunals and the International Criminal Court.
DOJ officials and RCMP investigators visited several foreign countries during the period covered by this report, including Honduras, Colombia, Croatia and Serbia, to discuss access for investigators and researchers and to develop Memoranda of Understanding on international cooperation. The RCMP provides assistance to foreign investigative agencies.
CIC visa officers abroad are responsible for reporting and liaison on global migration, country situations and emerging trends, and have developed ongoing relationships with host countries, other diplomatic missions, international organizations and the various international criminal tribunals. This is particularly true of those in Geneva, Brussels and Washington, where international conferences and meetings of international organizations discuss issues related to migration and human rights.
In an annual report issued in 2007 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:
On the international stage, Canada plays a leadership role in global efforts to hold perpetrators of human rights abuses accountable for their crimes through cooperation with other countries and international tribunals. Because of its coordinated approach and its capacity to apply a range of legislative remedies, the War Crimes Program has become a model for other countries.
CBSA [Canada Border Services Agency] researchers provide support and intelligence not only internally, but also to national and international partners and international criminal tribunals …
When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition to foreign states, surrender to international tribunals, criminal investigation and prosecution, and the revocation of citizenship …
The RCMP [Royal Canadian Mounted Police] is responsible for criminal investigations, with legal and research support from the DOJ [Department of Justice], and targets individuals in Canada alleged to have participated in crimes against humanity, war crimes or genocide before their arrival in Canada. The RCMP responds to allegations from witnesses, foreign governments, community groups, non-governmental organizations and open source information.
… RCMP investigators carry out witness interview trips with the assistance of DOJ officials who liaise with representatives from foreign governments to secure cooperation in accordance with bilateral agreements.
The program partners have continued to examine allegations of modern war crimes, including referrals from CIC [Citizenship and Immigration Canada] and the CBSA and complaints received from the public, other countries and international institutions, to determine whether they should be referred for criminal investigation. In order for an allegation to be added o the RCMP/DOJ inventory, among other considerations, the allegation must disclose personal involvement or command responsibility, and the evidence pertaining to the allegation must be corroborated and obtainable in a reasonable and rapid fashion …
The War Crimes Program plays a leading role in international efforts to bring war criminals to justice. Mutual legal assistance and exchanges of information with other countries and international bodies are an essential part of the global battle against impunity. Reciprocal relationships with international tribunals and other countries enable the sharing of resources, expertise, information, research and logistical support.
Program partners work closely with other countries on war crimes issues …
The partners provide assistance, information and legal and investigative support to the international criminal tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia and the ICC. All of the partners are represented in the Interdepartmental Working Group for the international tribunals, which examines the tribunals’ requests for assistance from Canada. They also work with the DOJ’s International Assistance Group and the Department of National Defence to support the international tribunals. The International Assistance Group reviews requests relating to war crimes or crimes against humanity for mutual legal assistance from foreign governments, international tribunals and the ICC.
… The RCMP also provides assistance to foreign law enforcement agencies that travel to Canada to conduct investigations.
CIC visa officers abroad are responsible for reporting and liaison on global migration, country situations and emerging trends, and have developed ongoing relationships with host countries, other diplomatic missions, international organizations and international criminal tribunals. This is particularly true of those in Geneva, Brussels and Washington, where international meetings are held to discuss issues related to migration and human rights.
Program partners recognize the benefits of international cooperation and outreach in the maintenance of its objective to fight impunity and the importance of spreading this message on a global scale.
In an annual report issued in 2008 on its Program on Crimes Against Humanity and War Crimes, the Government of Canada stated:
Canada’s global efforts to hold perpetrators of human rights abuses accountable for their crimes through cooperation with other countries and international tribunals have made Canada a leader on the international stage. The Canadian War Crimes Program’s collaborative approach and capacity to apply a range of legislative remedies has become a model for other countries.
Remedies for War Criminals in Canada
International missions: During the 2007–2008 fiscal year, 11 international missions were conducted by the RCMP [Royal Canadian Mounted Police] War Crimes Section to investigate suspected war criminals residing in Canada. The investigators traveled to Rwanda, Serbia, Croatia, Germany, the Netherlands, Bosnia, Honduras and the United States to further their investigations …
International Cooperation and Outreach
The War Crimes Program plays a leading role in international efforts to bring war criminals to justice. Strong relationships with international tribunals and other countries permit the sharing of research, logistics and investigative support.
The CBSA [Canada Border Services Agency] War Crimes Section maintains a close working relationship with American, Australian and British war crimes units under the Four Country Conference (FCC) Memorandum of Understanding (MOU) with Respect to Investigations Relating to Genocide, War Crimes and Crimes Against Humanity, signed in April 2007 by the governments of Australia, Canada, the United Kingdom and the United States. In November 2007, the CBSA War Crimes Section hosted a meeting at the Canadian High Commission in the United Kingdom with FCC partners to discuss information sharing issues.
CBSA researchers provide support and intelligence not only internally, but also to national and international partners and international criminal tribunals. During the 2007–2008 fiscal year, CBSA researchers at national headquarters responded to 3,239 requests for information (RFIs) on cases of alleged war crimes or crimes against humanity, an increase of 134 percent from 1,386 RFIs in 2006–2007 …
International conferences not only promote the exchange of information, but also improve the overall level of cooperation between countries … The RCMP also provides assistance to foreign law enforcement agencies that travel to Canada to conduct investigations.
In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the permanent representative of Canada stated:
Canada’s contribution to the prevention of sexual violence in conflict situations include[s] $18.5 million dollars over the next five years to support victims, as well as contribute to investigations and prosecutions of perpetrators in eastern DRC [Democratic Republic of the Congo] where rape is used as a weapon of war. Canada has also supported training investigators of sexual violence who can be rapidly deployed to post-conflict areas around the world.
In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the deputy permanent representative of Canada stated: “Canada and others are working with partners in the field to … prevent and respond to sexual violence, and hold perpetrators to account. For example, in the Democratic Republic of Congo, Canada assists survivors of sexual violence and brings those responsible to justice.”
In 2007, in its initial report to the Committee against Torture, Chad stated:
115 … Mention should … be made of the Chadian Government’s willingness to cooperate with foreign judicial bodies, especially that of Belgium and with human rights defence associations by allowing access to the premises and archives of the Documentation and Security Directorate (DDS) and to its premises.
314. With regard to acts of torture committed under the regime of Hissène Habré, several rogatory commissions have been executed in Chad to enable the Belgian judge in charge of the case to collect evidence. However, this desire to provide judicial assistance, seen from the perspective of the  Convention [against Torture] which is the subject of this report, has its limitations inasmuch as the offences mentioned in article 4 do not fall within the scope of these agreements on mutual judicial assistance.
Democratic Republic of the Congo
In 2008, a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states: “Legal implications of sexual violence as an international crime
… International crimes imply international cooperation regarding the detection, arrest … and punishment of individuals convicted for such crimes.”
In 1971, the French delegation explained its abstention in the vote on UN General Assembly Resolution 2840 (XXVI) stating that it
abstained in the vote on the draft resolution because we consider that all the work of the United Nations in connexion with this matter is vitiated by the faulty definition of a number of crimes contained in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, to which France is not a party. Indeed this definition is based on theoretical and practical considerations which are too imprecise for a convention of a penal nature and which are at any rate contrary to the principles of the French Penal Code.
In 2010, in its report on German human rights policy in the context of foreign relations and other policy areas between 1 March 2008 and 28 February 2010, which was submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
The office of the prosecutor responsible for the prosecution of crimes under the VStGB [International Crimes Code] is the Federal Prosecutor General at the Federal Court of Justice. Together with the Central Unit for the Fight against War Crimes of the Federal Criminal Police Office, the Federal Prosecutor General keeps an eye on the human rights situations in the hotspots and crises around the world. To this end, the Federal Prosecutor General established various observation procedures which make it possible to initiate targeted investigation proceedings on short notice if information on international crimes that can be used for judicial purposes is received. Moreover, he stays in touch … with national war crimes units of other States in order to ensure information exchange.
In 2010, in its report on the implementation of UN Security Council Resolution 1325 on “Women, Peace and Security” between July 2007 and July 2010 submitted to the Bundestag (Lower House of Parliament), Germany’s Federal Government stated:
On the basis of international treaties and domestic law, Germany is … providing legal assistance to foreign authorities … carrying out criminal proceedings against those responsible for genocide, crimes against humanity and war crimes. Since May 2007, members of staff of the focal points with jurisdiction over persons responsible for genocide, crimes against humanity and war crimes have been meeting annually. The Federal Prosecutor General has initiated proceedings concerning genocide in Rwanda which involve comprehensive cooperation within the framework of mutual legal assistance.
German Democratic Republic
In 1981, during a debate in the Sixth Committee of the UN General Assembly in relation to the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind, the German Democratic Republic stated that “it was necessary to establish a universal duty to prosecute offences, which included the obligation of States to co-operate in combating international offences”.
In 2009, in its fourth periodic report to the Committee against Torture, Morocco stated:
Under Moroccan law no orders from a higher authority, exceptional circumstances, state of war or the threat of war, threat to national security, internal political instability or any emergency situation could be used as justification for the use of torture or any other form of cruel, inhuman or degrading treatment.
Morocco also stated:
79. Morocco, under its international obligations, is committed to providing adequate assistance to other states in dealing with the offences prescribed by this Convention [against Torture]. For this purpose, national legislation has included provisions in domestic law to facilitate judicial assistance to foreign authorities. With this in mind, a number of international agreements, bilateral and multilateral, have been concluded with the aim of fighting all forms of crime, including torture, and to facilitate judicial assistance among states.
80. Provisions of the Code of Criminal Procedure regulate judicial relations with other foreign authorities (article 713 et seq.). They give the application of international conventions priority over national laws when it comes to international judicial assistance. International requests may include the collection of evidence connected with a crime of torture such as taking witness statements, inspecting sites or confiscating material connected to the crime. Judicial requests are normally passed through the diplomatic channels. But in urgent cases, they may be addressed directly to the competent judges.
81. Moroccan law, upon a request by another state, provides for the seizure of all items that may have been used in the commission of a crime of torture whether found in the possession of the person whose extradition is requested or at a later stage. It is also permitted to handover such items to the requesting state even when the person himself is not extradited for reasons such as death or escape.
82. Morocco also accepts summons by other states for witnesses living on its territory to testify in criminal cases. It is also permitted to temporarily transfer such a person, even when held in a Moroccan prison, to testify or to be questioned in person on condition that such a person is returned to Moroccan custody within a period of time set by the Moroccan authorities and after receiving guarantees for the safety of the witness including protection from physical harm. Morocco also accepts official complaints submitted by other states against Moroccan nationals responsible for crimes of torture or other crimes, inside or outside Morocco. The accused would be investigated and tried in Morocco in accordance with national legislation.
83. The Kingdom of Morocco is bound by a number of international bilateral and multilateral agreements in connection with international judicial assistance when it comes to such cases. This is an indication of Morocco’s determination to cooperate in a positive manner with other states in combating torture and other forms of cruel, inhuman and degrading treatment.
In 2014, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the permanent representative of Slovenia stated:
States have the obligation to comply with international humanitarian and human rights law and to investigate and prosecute any serious crime committed within its borders. … Impunity is not an option. It encourages perpetrators to continue their atrocious acts. The fight against impunity should be a common effort, in which the affected State delivers and ensures the conditions to bring about justice and the international community provides technical assistance and resources to such States.
In 2008, in its sixth periodic report to the Committee against Torture, Switzerland stated in the section on universal jurisdiction:
The military justice system has had occasion, on the basis of article 3 (1), sect. 9, and articles 108 to 114 of the Military Criminal Code, to prosecute and try alleged war criminals (violation of the Geneva Conventions of 12 August 1949). During the reporting period, the military courts handled 25 such cases. … Of the two cases concerning Sierra Leone, one … was the subject of reciprocal judicial assistance.
United States of America
In 1979, in a diplomatic note addressed to the USSR embassy, the US Department of State stated:
The Department of State requests the cooperation of the Embassy of the USSR in bringing to the attention of the appropriate officials and organs the essential need for … witnesses to testify in the prosecution of war crimes cases in the United States. Without firm assurances on the availability of witnesses the United States Government will be unable to continue these prosecutions. In many cases, therefore, individuals accused of committing serious crimes during 1941–1945 will be allowed to remain free without a proper trial.
We believe that it is in the mutual best interest of the United States and the Union of Soviet Socialist Republics to cooperate to ensure that this result is avoided and that justice is done in these cases.
United Kingdom of Great Britain and Northern Ireland
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
As described in previous reports, the United Kingdom gives full legal assistance under the Criminal Justice (International Co-operation) Act 1990 to foreign courts or prosecuting authorities. The United Kingdom Central Authority for mutual legal assistance has not, to its knowledge, received any requests for assistance from overseas authorities in connection with offences involving torture.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State, referring to Articles 85–89 of the 1977 Additional Protocol I, affirmed: “We support the principle that the appropriate authorities … make good faith efforts to cooperate with one another.”
United States of America
In 1989, a study prepared by the Deputy Director of the US Office of Special Investigations summarized the Office’s assistance in investigations involving three Second World War Nazi war criminals outside the United States. The study reported that:
At the time of [Klaus Barbie’s] extradition [from Bolivia to France], OSI [Office of Special Investigations] was asked by Attorney General William French Smith to investigate and report on allegations concerning Barbie’s post-war relationship with American military intelligence and the latter’s efforts to prevent his arrest by French authorities …
In 1985, OSI strongly supported an effort with West German and Israeli authorities to locate [Josef] Mengele’s whereabouts …
Prompted by a request from the Anti-Defamation League of B’nai B’rith, OSI undertook a formal inquiry into the relationship between the United States government and convicted criminal Robert Jan Verbelen.
United States of America
In 1992, a report on Iraqi war crimes (Desert Shield/Desert Storm) prepared under the auspices of the US Secretary of the Army noted: “The obligation to investigate violations of the law of war committed against allied personnel is subject to the consent of the ally in question, particularly if the alleged violations occurred within the territory of the ally.”
As regards alleged Iraqi war crimes, the report stated that to carry out US directives dealing with the investigation and prosecution of war crimes:
An interagency meeting was held on 30 August 1990 … [The participants] understood that any formal war crimes investigation would depend upon authorization by appropriate authority and, depending on the scope of the investigation, might also require the consent of the host nation …
Detachments selected for mobilization were the 199th Judge Advocate Detachment … and the 208th Judge Advocate Detachment … Elements of the 199th arrived in Kuwait City on 1 March 1991, and upon arrival, reestablished contact with the Kuwaiti Ministry of Justice. Then, with the consent of the Ministry, they contacted members of Kuwaiti resistance groups … The Ministry of Justice was also investigating Iraqi actions during the occupation, To avoid duplicate effort, and in the spirit of cooperation, the mission of the 199th evolved into establishing the nature and extent of Iraqi offences rather than building cases for prosecution. One of the goals was to accumulate and organize the evidence in a fashion that would facilitate preparation of criminal cases should prosecution of war criminals at a later date become an option.
United States of America
According to the Report on US Practice, it is the opinio juris
of the United States that “there is a general obligation to try [persons suspected of war crimes other than members of its own armed forces] or to cooperate with another state willing to try them in accordance with international fair trial standards”.
The report also states: “The United States appears to recognize a general obligation on all states to assist each other in the investigation and prosecution of war crimes.”
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
A diplomatic mission of the Federal Republic of Germany requested that Venezuela should permit the Federal Republic Criminal Police to search the archives in order to investigate crimes perpetrated in relation to the Second World War, especially those committed in concentration camps and crimes against prisoners of war. To date, there is no explicit legal provision governing such assistance to other States. Venezuela has, however, incorporated in its domestic legal system the commonly accepted principles governing criminal cooperation between countries by signing various international agreements on mutual assistance in criminal matters, the provisions of which include the possibility of authorizing the presence of officials of the requesting party who were identified in the request beforehand in the course of conducting cooperation or assistance procedures under the direction and supervision of our competent authorities, so long as there is no legal provision to the contrary.
UN Security Council
In a resolution adopted in 1989 on hostage-taking and abduction, the UN Security Council,
Considering that the taking of hostages and abduction are offences of grave concern to all States and serious violations of international humanitarian law, …
the further development of international co-operation among States in devising and adopting effective measures which are in accordance with the rules of international law to facilitate the prevention, prosecution and punishment of all acts of hostage-taking and abduction as manifestations of terrorism.
UN Security Council
In a resolution adopted in 2004 on the situation in Côte d’Ivoire, the UN Security Council:
9. Decides that all States shall take the necessary measures, for a period of twelve months, to prevent the entry into or transit through their territories of all persons designated by the Committee established by paragraph 14 below, … , any … person determined as responsible for serious violations of human rights and international humanitarian law in Côte d’Ivoire on the basis of relevant information … , provided that nothing in this paragraph shall oblige a State to refuse entry into its territory to its own nationals;
14. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council (the Committee), to undertake the following tasks:
(a) to designate the individuals and entities subject to the measures imposed by paragraph[…] 9 … above, and to update this list regularly,
(b) to seek from all States concerned, and particularly those in the region, information regarding the actions taken by them to implement the measures imposed by paragraph[…] … 9 … above, and whatever further information it may consider useful, including by providing them with an opportunity to send representatives to meet the Committee to discuss in more detail any relevant issues,
15. Requests all States concerned, in particular those in the region, to report to the Committee, within ninety days from the date of adoption of this resolution, on the actions they have taken to implement the measures imposed by paragraph[…] … 9 … above, and authorizes the Committee to request whatever further information it may consider necessary;
all States, relevant United Nations bodies and, as appropriate, other organizations and interested parties, to cooperate fully with the Committee, in particular by supplying any information at their disposal on possible violations of the measures imposed by paragraph[…] … 9 … above.
UN Security Council
In a resolution adopted in 2006 on the situation in the Great Lakes region, the UN Security Council urged all States concerned to “take action to bring to justice perpetrators of grave violations of human rights and international humanitarian law and to take appropriate measures of international cooperation and judicial assistance in this regard”.
UN Security Council
In 1998, in a statement by its President on the conflict in the Democratic Republic of the Congo, the UN Security Council urged member States “to cooperate with the Governments of the Democratic Republic of the Congo and Rwanda in the investigation and prosecution of [any persons found to have been involved in … massacres, atrocities and violations of international humanitarian law]”.
UN Security Council
In 2004, in a statement by its President on the situation in the Democratic Republic of the Congo, the UN Security Council stated:
The Security Council condemns the deaths of innocent civilians and human rights abuses in the East of the Democratic Republic of the Congo and calls for such incidents to be fully investigated. Those responsible for atrocities and human rights abuses should be held to account, and the Government of National Unity and Transition should take immediate steps, with support from the international community, to reverse the current climate of impunity.
UN Security Council
In 2004, in a statement by its President regarding the situation in Burundi, the UN Security Council stated:
The Security condemns with the utmost firmness the massacre of refugees from the Democratic Republic of the Congo which occurred on the territory of Burundi, in Gatumba, on 13 August 2004.
The Security Council calls upon the authorities of Burundi and of the Democratic Republic of the Congo to cooperate actively so that the perpetrators and those responsible for those crimes be brought to justice without delay.
The Security Council requests the United Nations Operation in Burundi and the United Nations Organization’s Mission in the Democratic Republic of the Congo to offer their assistance to the Burundian and Congolese authorities with a view to facilitating the investigation and to strengthening the security of vulnerable populations.
UN General Assembly
In a resolution adopted in 1970 on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the UN General Assembly called upon all the States concerned “to intensify their co-operation in the collection and exchange of information which will contribute to the detection, arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity”.
UN General Assembly
In a resolution adopted in 1971 on the question of the punishment of war criminals and of persons who have committed crimes against humanity, the UN General Assembly:
Firmly convinced of the need for international co-operation in the thorough investigation of war crimes and crimes against humanity … and in bringing about the detection, arrest, extradition and punishment of all war criminals and persons guilty of crimes against humanity who have not yet been brought to trial or punished,
2. Further urges all States to co-operate in particular in the collection and exchange of information which will contribute to the detection, arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity.
that refusal by States to co-operate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to the purposes and principles of the Charter of the United Nations and to generally recognized norms of international law.
UN General Assembly
In a resolution adopted in 1971 on principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the UN General Assembly requested the UN Commission on Human Rights “to submit to the General Assembly … draft principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity”.
UN General Assembly
In a resolution adopted in 1973 on principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the UN General Assembly declared:
The United Nations, in pursuance of the principles and purposes set forth in the Charter concerning the promotion of co-operation between peoples and the maintenance of international peace and security, proclaims the following principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity:
3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.
4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them.
6. States shall co-operate with each other in the collection of information and evidence which would help to bring to trial [persons against whom there is evidence that they have committed war crimes and crimes against humanity] and shall exchange such information.
UN General Assembly
In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN General Assembly urged all parties to the conflict in the Democratic Republic of the Congo:
To allow free and secure access to all areas so as to permit and support investigations of the presumed serious violations of human rights and international humanitarian law, with a view to bringing those responsible to justice, and to cooperate fully to that end with national and international human rights protection mechanisms to investigate alleged human rights violations and breaches of international humanitarian law in the Democratic Republic of the Congo.
UN Commission on Human Rights
In a resolution adopted in 1965 on the question of punishment of war criminals and of persons who have committed crimes against humanity, the UN Commission on Human Rights requested ECOSOC:
to urge all States to continue their efforts to ensure that, in accordance with international law and national laws, the criminals responsible for war crimes and crimes against humanity are traced, apprehended and equitably punished by the competent courts. For this purpose they should co-operate, in particular, by making available any documents in their possession, relating to such crimes.
UN Commission on Human Rights
In a resolution adopted in 1988 on prosecution and punishment of all war criminals and persons who have committed crimes against humanity, the UN Commission on Human Rights:
Commending the co-operation among various States Members of the United Nations which has resulted in the fair trial and just punishment of important war criminals, including the Nazi war criminal Klaus Barbie, for their crimes against humanity,
all States to take the necessary measures, in accordance with their national constitutional systems, to ensure full international co-operation for the purpose of securing, preferably in the place where they committed their deeds, the prosecution and just punishment of all those who have committed war crimes and crimes against humanity.
UN Commission on Human Rights
In a resolution adopted in 2003 on impunity, the UN Commission on Human Rights:
Taking note of resolution 2001/22 of 16 August 2001 of the Sub-Commission on the Promotion and Protection of Human Rights, entitled “International cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity” and recalling also all previous resolutions of the Sub-Commission on impunity,
5. Calls upon States and the United Nations High Commissioner for Human Rights to consider providing to States, upon their request, concrete and practical assistance and cooperation in seeking to achieve the goals set out in the present resolution;
that crimes such as genocide, crimes against humanity, war crimes and torture are violations of international law and that perpetrators of such crimes should be prosecuted or extradited by States, and urges all States to take effective measures to implement their obligations to prosecute or extradite perpetrators of such crimes.
UN Commission on Human Rights
In a resolution adopted in 2004 on impunity, the UN Commission on Human Rights:
States to assist each other, in accordance with their international obligations and domestic law, in detecting, arresting and bringing to justice persons suspected of having committed international crimes including genocide, crimes against humanity and war crimes.
UN Commission on Human Rights
In a resolution adopted in 2005 on the rights of the child, the UN Commission on Human Rights:
Calls upon all States to end impunity for perpetrators of crimes committed against children, recognizing in this regard the contribution of the establishment of the International Criminal Court as a way to prevent violations of human rights and international humanitarian law, in particular when children are victims of serious crimes, including the crime of genocide, crimes against humanity and war crimes, and to bring perpetrators of such crimes to justice, and not to grant amnesties for these crimes and to strengthen international cooperation towards the goal of ending impunity.
UN Commission on Human Rights
In a resolution adopted in 2005 entitled “Right to the truth”, the UN Commission on Human Rights:
4. Encourages other States to consider establishing specific judicial mechanisms as well as, where appropriate, truth and reconciliation commissions to complement the justice system [of concerned States], to investigate and address gross violations of human rights and serious violations of international humanitarian law;
States to provide appropriate assistance on this matter to concerned States.
UN Commission on Human Rights
In a resolution adopted in 2005 on impunity, the UN Commission on Human Rights:
States to assist each other, in accordance with their international obligations and domestic law, in detecting, arresting and bringing to justice persons, including accomplices, suspected of having committed international crimes including genocide, crimes against humanity and war crimes.
UN Sub-Commission on Human Rights
In a resolution adopted in 2001 on international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the UN Sub-Commission on Human Rights stated:
The Sub-Commission on the Promotion and Protection of Human Rights …
Convinced that maximum international cooperation among States is needed in order to ensure a thorough investigation of war crimes and crimes against humanity, as well as to bring to trial their perpetrators …
1. Affirms that within the framework of international cooperation in the search for, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, the highest priority should be given, independently of the circumstances in which these violations are committed, to legal proceedings against all individuals responsible for such crimes, including former heads of State or Government whose exile serves as a pretext for their impunity;
2. Urges all States to cooperate in order to search for, arrest, extradite, bring to trial and punish persons found guilty of war crimes and crimes against humanity;
3. Reaffirms the principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity recorded in General Assembly resolution 3074 (XXVIII) of 3 December 1973 …
4. Affirms that States have an obligation to cooperate in the arrest, extradition, trial and punishment of persons found guilty of war crimes and crimes against humanity, including former heads of State or Government, keeping in mind the purposes and principles of the Charter of the United Nations and generally recognized norms of international law.
In 2001, in a report on the protection of civilians in armed conflict, the UN Secretary-General pointed out that “consistent enforcement depends primarily on the commitment and cooperation of national jurisdictions. The prosecution of individuals is, first and foremost, a responsibility of the State concerned.”
Council of Europe Parliamentary Assembly
In a recommendation adopted in 1979 on statutory limitation of war crimes and crimes against humanity, the Council of Europe Parliamentary Assembly recommended that the Committee of Ministers:
iii. invite member governments to improve their co-operation, co-ordination and exchange of information for the purpose of prosecuting the perpetrators of [crimes against humanity and war crimes] by:
a. providing rapidly all relevant information on these crimes to the competent authorities of the member states concerned;
b. providing facilities for rapid direct contacts between the authorities responsible for the search for and prosecution of the perpetrators of these crimes in member states;
c. studying further possibilities for co-operation and co-ordination in respect of these crimes;
d. preparing a special wanted persons’ list in respect of these crimes;
e. considering the possibility of appointing a special public prosecutor in charge of the prosecution of these crimes.
Council of Europe Parliamentary Assembly (Rapporteur)
In 1979, during his presentation of a report by the Legal Affairs Committee on the statutory limitation of war crimes and crimes against humanity, the Rapporteur of the Council of Europe Parliamentary Assembly stated: “We beg member governments to improve their co-operation, their co-ordination and exchange of information for the purpose of prosecuting the perpetrators of [crimes against humanity and other very serious crimes].”
Human Rights Committee
In its General Comment on the Nature of the General Legal Obligation Imposed on States Parties under the 1966 International Covenant on Civil and Political Rights in 2004, the Human Rights Committee held: “States parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law.”
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
The [High Contracting] Parties shall afford one another the greatest measure of assistance with penal proceedings relative to grave breaches of the law of war.
The [High Contracting] Parties shall benefit by the same assistance from neutral States.