Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
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.
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.”
Spain’s LOAC Manual (1996) provides:
The States have the obligation to search for persons accused of having committed, or having ordered to be committed, grave breaches, being obliged to make them appear before their own tribunals, regardless of their nationality. They can also agree to the extradition of those persons in order for them to be judged by other States, in accordance with the legal obligations which regulate the said extradition.
The manual adds: “States shall provide each other with the greatest possible mutual assistance for the penal repression of violations, at national and international level. Such cooperation shall also be accorded in extradition matters.”
Spain’s LOAC Manual (2007) states:
States have a duty to search for those suspected of having committed or having ordered others to commit grave breaches and try them in their own courts, regardless of their nationality. They can also extradite such persons to be tried by another State, provided that legal extradition requirements are met.
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 referred to norms of IHL relevant to the case under review, including Article 146 of the 1949 Geneva Convention IV on the obligation to prosecute or extradite persons responsible for grave breaches.
In 2010, in its report of 23 July, Spain’s Council of Ministers stated:
Extradition to Bosnia of Veselin Vlahovic for crimes against humanity
The Council of Ministers has approved the surrender in extradition to Bosnia and Herzegovina of Veselin Vlahovic, for crimes against persons and property protected in the event of armed conflict.
Vlahovic’s extradition is sought for having committed grave crimes against humanity during the war in Bosnia and Herzegovina between 1992 and 1995. He has been accused, as a member of the armed forces of the República Srpska, of terrorising the population of Grbavica (Sarajevo), persecuting the civilian population of non-Serb origin, personally killing a large number of people, committing pillage, rape, abuses, torture and other crimes.
The European Convention on Extradition of 13 December 1957 applies to Vlahovic, who is being held on remand in custody.
In 2010, in its report of 1 October, Spain’s Council of Ministers stated:
Continuation of the proceedings for the extradition to Bosnia of Veselin Vlahovic
The Council of Ministers has approved the continuation of the proceedings for the first extension of the passive extradition of the Montenegrin citizen Veselin Vlahovic, requested by the authorities of Bosnia and Herzegovina.
[Vlahovic] is suspected of having committed grave crimes against humanity during the war in Bosnia and Herzegovina as a member of the armed forces of the República Srpska, between 1992 and 1995. Concretely, the new facts state that in 1992 [Vlahovic], together with other members of the so called “White Angels”, took fifteen members of a family to a Jewish cemetery in Novo Sarajevo where they were machine gunned, including among those killed a boy of six and a woman. In July of the same year, in Grbavica he removed a couple from their home and killed them both.
The facts described constitute a war crime against the civilian population under the Criminal Code of Bosnia and Herzegovina, which constitutes a crime against persons or property protected in the event of armed conflict under the Spanish Penal Code in force.
[Vlahovic]’s extradition was also requested by the Serb authorities, for the crime of murder and by the Montenegrin authorities for the crime of violent robbery and war crimes.
The surrender of Veselin Vlahovic is proposed, in the first instance, to the authorities of Bosnia and Herzegovina as the European Convention on Extradition of 1957 applies to all three requesting States, because the crimes committed by [Vlahovic] in Bosnia and Herzegovina are both quantitatively and qualitatively of relatively greater gravity. This State sent a request for extradition through the diplomatic channel on 8 March 2010, before the other two States. The extradition took place on 25 August 2010.
In 2011, in its report, Spain’s Council of Ministers stated:
Extension of extradition to Bosnia of Veselin Vlahovic for crimes against humanity
The Council of Ministers has approved the continuation of the procedure for the second extension of the extradition to Bosnia and Herzegovina of Veselin Vlahovic, accused of committing grave crimes against humanity during the war in Bosnia and Herzegovina from 1992–1995.
The second extension of the extradition requested by the authorities of Bosnia and Herzegovina for prosecution refers to facts not included in the original request. They now claim that he is suspected of having carried out in Sarajevo (Bosnia), between April and June 1992, together with other members of the so called “White Angels” acts against the non-Serb civilian population including kidnapping, extortion, threats, thefts, injury, rapes and murders.
On 25 August 2010 he was surrendered to the authorities of Bosnia and Herzegovina for a previous extradition request.
The acts described constitute the crime of war crimes against the civilian population under the Penal Code of Bosnia and Herzegovina, which corresponds to the crime against protected persons and property in the event of armed conflict under section 607 onwards of the Spanish penal code in force.
Spain’s Law on Passive Extradition (1985) provides: “Extradition of Spanish nationals will not be granted.”
Spain’s Law on Passive Extradition (1985) provides:
Extradition will not be granted in the following cases:
1. When it concerns offences of a political character, which does not include acts of terrorism [and] crimes against humanity aimed at in the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations …
2. When it concerns military offences classified as such by Spanish legislation, without prejudice, however, to what is established by International Conventions signed and ratified by Spain.
Spain’s LOAC Manual (1996) states:
Historically … International Tribunals established to judge alleged war criminals have existed (such as the Nuremberg and Tokyo Tribunals), and this possibility remains nowadays and seems to be a developing trend for the action of the International Community, an example of which is the creation by the Security Council of … [the International Criminal Tribunal for the former Yugoslavia]. To cooperate with [this Tribunal], Spain has adopted Organic Law No. 15/94 of 1 June.
The manual further states:
The obligation devolving on the States to cooperate in the penal repression of grave breaches of the [1949 Geneva] Conventions is not limited to cooperation with other States but also comprises cooperation with the United Nations, in conformity with the United Nations Charter.
Spain’s LOAC Manual (2007) states: “Spain is party to the Rome Statute and has enacted organic law 18/2003 governing cooperation with the International Criminal Court.”
Spain’s Law on Cooperation with the ICTY (1994) states:
Spain will provide full cooperation to the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (hereinafter “International Tribunal”) established by Resolution 827 (1993) of the Security Council of the United Nations.
Upon ratification of the 1998 ICC Statute, Spain stated:
In relation to article 87, paragraph 1, of the [1998 ICC] Statute, the Kingdom of Spain declares that, without prejudice to the fields of competence of the Ministry of Foreign Affairs, the Ministry of Justice shall be the competent authority to transmit requests for cooperation made by the Court or addressed to the Court.
In relation to article 87, paragraph 2, of the [1998 ICC] Statute, the Kingdom of Spain declares that requests for cooperation addressed to it by the Court and any supporting documents must be in Spanish or accompanied by a translation into Spanish.
The obligations under the Rome Statute of the International Criminal Court have been implemented in Swedish law. The Act on Cooperation with the International Criminal Court (2002:329) covers all forms of cooperation set forth in part 9 of the Rome Statute as well as enforcement of sentences, fines, forfeiture and reparation orders in accordance with part 10 of the Statute. The necessary legislation with respect to the privileges and immunities of the Court in accordance with the Statute and the Agreement on the Privileges and Immunities of the International Criminal Court, which Sweden ratified on 13 January 2005, is provided in the Act on Immunity and Privileges in Certain Cases (1976:661). In order to fully meet the obligations regarding offences against the administration of justice by the Court (art. 70 of the Statute), necessary amendments have been made in the Penal Code and in the Act on Cooperation with the International Criminal Court.
Holding perpetrators to account [for] grave violations against children continues to be rare … and yet is a crucial element towards protecting children’s rights … In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc
and mixed tribunals, can and should play a complementary role.
A substantial achievement for the cause of justice during the reporting period was that Congolese war crimes suspect Bosco Ntaganda was the first person subject to an arrest warrant of the ICC to surrender himself to the Court. It was also positive to see that the USA and Rwanda – two non-States Parties – cooperated with the Court on this matter. Despite successes as this one, it is a cause for concern that the number of outstanding arrest warrants remains high. … States’ cooperation with the Court, including the Office of the Prosecutor must be better. States Parties have a legal obligation under the Rome Statute to co-operate fully with the Court. Therefore, we urge all States Parties to strengthen their efforts to execute the orders of the Court and to abstain from inviting and receiving suspects which are under an arrest warrant by the ICC [International Criminal Court]. All States must also fully comply with their obligations under the UN charter and with resolutions 1593 and 1970 of the Security Council concerning the situations in Darfur and Libya [and the referral of these situations to the Prosecutor of the ICC]. The government of Sudan and all other parties to the conflict in Darfur, as well as the Libyan authorities respectively, must cooperate fully with the Court and the Prosecutor.
… [T]he International Criminal Court was created to take up the cases when States were not able or willing to do so. I am sure that we all aim for a world where the ICC has become obsolete, but in today’s reality, an effective and independent ICC is needed and should be fully supported by all States.
Let me conclude by renewing our pledge that the Nordic countries will remain principal supporters of the International Criminal Court. We are committed to continue working for the Court’s effectiveness, professionalism, independence and integrity.