Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
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].”
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.
In the Bohne case
in 1966, in which extradition was requested for crimes related to the execution of mentally ill patients during Germany’s Nazi regime, Argentina’s Supreme Court of Justice emphasized that it was “a duty under international law to provide mutual support in the pursuit of criminals that represent a danger to all”. It added that the extradition process was founded on the common interest of all States for offenders to be tried, and possibly punished, “by the country whose jurisdiction had cognisance of the criminal acts concerned”.
In the Schwammberger case
in 1989 concerning a request for extradition by the Federal Republic of Germany, Argentina’s Cámara Federal de La Plata referred to the prosecution and punishment of the major war criminals. The public prosecutor referred to the lawfulness of an extradition for an act committed outside the territory of the requesting State. The Court, invoking the various commitments made at the international level regarding the handing over of individuals accused of war crimes, rejected the request of the defendant to be tried by Argentine courts, an option provided by Argentine law, and affirmed the lower court’s decision granting the request for extradition.
In the same case before the Supreme Court of Justice in 1990, both the Attorney-General and the Court considered that:
The prosecution and punishment of crimes committed prior to changes in sovereignty constitutes a discretionary decision for the new power rather than an obligation, but as the new power has expressed an interest in exercising penal authority against such crimes, the international community has no legitimate reason to oppose such measures.
At the hearing of the Public Prosecutor of the First Instance in the Priebke case
in Argentina in 1995, the public prosecutor qualified the alleged acts of the requested person as war crimes and stated that the refusal to extradite him to Italy would trigger the international responsibility of Argentina, even if such refusal would be based on a rule of internal law.
The extradition request was granted by the Court of first instance which stated that there could be no statutory limitation with regard to the alleged acts and therefore rejected the argument raised by the defence that extradition could not be granted because the acts were prescribed under Argentine law.
However, the Court of Appeal found that under the terms of Argentine legislation, penal action was extinguished and that, therefore, extradition had to be refused.
The Supreme Court of Justice found in favour of the requested person’s extradition and considered that the acts for which extradition was sought were prima facie
genocide. It added: “The classification of offences as crimes against humanity does not depend on whether the requesting or requested State agrees with the extradition process, but instead on the principles of jus cogens
of international law.”
Argentina’s Law on International Cooperation in Criminal Matters (1997) provides that if the person for whom extradition is sought has been an Argentine national since the time the crime was committed (and is still an Argentine national at the time of the option), such person may opt to be tried by Argentine courts, unless a treaty obliging the extradition of its nationals applies. If the Argentine national chooses to exercise this right, extradition is denied and the case is tried in Argentina under Argentine penal law, so long as the requesting State gives its consent and renounces its jurisdiction, and hands over the relevant records and evidence.
Argentina’s Law on International Cooperation in Criminal Matters (1997) provides that extradition shall not take place in case of political offences.
However, the Law also states that the following crimes are not considered to be political offences: war crimes and crimes against humanity or illegal acts against internationally protected persons; illegal acts against the population or innocent civilians not involved in the violence caused by an armed conflict; and crimes for which Argentina, as a signatory to an international convention, has assumed the obligation to extradite or prosecute.
In the Bohne case
in 1966, in which extradition was requested for crimes related to the execution of mentally ill patients during Germany’s Nazi regime, Argentina’s Supreme Court of Justice emphasized: “Neither claims for political reasons nor arguments based on supposed military necessity shall be admitted as grounds for the denial of extradition for criminal acts which clearly contravene the common opinion of civilized peoples.”
Argentina’s Law of War Manual (1989) states:
In the [1949 Geneva] Conventions and [1977 Additional] Protocol I, it is provided that the governments shall take such legislative measures as may be necessary to determine adequate penal sanctions to be applied to persons committing or ordering any of the grave breaches; the persons accused of having committed, or of having ordered to commit, those breaches … shall be searched for.
… It is also possible to hand the author of the violations over to an international tribunal, in case such a tribunal has been established.
The manual also states: “In the event of grave breaches of the [1949 Geneva] Conventions or of [the 1977 Additional] Protocol I, the contracting parties shall cooperate, jointly or individually, with the United Nations and in accordance with the UN Charter.”
Argentina’s Law on the Implementation of the 1998 ICC Statute (2006) states:
Article 40. The competent law enforcement authorities will comply with the requests for cooperation formulated by the [International Criminal] Court as provided for by the [1998 ICC] Statute.
Article 42. The Argentine Republic will deny a request for assistance, in whole or in part, in accordance with article 93(4) of the Statute, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security as defined by law adopted by Congress.
Article 43. The executive power will communicate to the Court or its Prosecutor without delay the reasons for the denial of the request for assistance.
. The Prosecutor of the Court may execute directly on Argentine territory a request for assistance that does not require compulsory measures in accordance with article 99(4) of the Statute.
Regarding the referral of situations to the Prosecutor of the International Criminal Court, the Law provides:
The executive power may decide to refer a situation to the Prosecutor of the International Criminal Court pursuant to articles 13(a) and 14 of the Rome Statute and if appropriate may request the Pre-Trial Chamber to review a decision of the Prosecutor not to proceed pursuant to article 53(3)(a) of the Rome Statute.
Concerning complementary jurisdiction and the admissibility of cases before the International Criminal Court, the Law states:
1. Once a notification from the Prosecutor of the Court or from the Court itself concerning facts that may fall within the jurisdiction of Argentina is received pursuant to article 18(1) of the Rome Statute, the executive power will request to be informed by the Office of the National Attorney General, the Federal Chambers with criminal jurisdiction and any other authority considered appropriate in each specific case, within a period no longer than ten days, about the existence of any ongoing or past criminal proceedings related to the facts under investigation [by the Prosecutor of the International Criminal Court].
2. When the information provided indicates that Argentina has exercised or is exercising jurisdiction [over the above-mentioned facts], or that Argentina has initiated an investigation due to the notification received, the executive power will decide whether to maintain the jurisdiction of Argentine judicial authorities. If appropriate, the executive power, within a period no longer than 30 days after the notification pursuant to article 18(1) of the Statute was received, will request the Prosecutor of the Court to defer to Argentina’s investigation pursuant to article 18(2) of the Statute.
3. The executive power shall reply without delay to any request for information submitted by the Prosecutor of the Court regarding the progress of the ongoing investigations and subsequent prosecutions in Argentina that motivated the [above-mentioned] request [to the Prosecutor of the International Criminal Court].
4. When the information provided by the National Attorney General, the Federal Chambers with criminal jurisdiction or any other consulted body indicates that Argentina has not exercised, is not exercising and will not exercise its jurisdiction [over the above-mentioned facts], the executive power will communicate this without delay to the Prosecutor of the Court or to the Court itself.
The Law further provides:
Article 27. If despite a request to the Prosecutor of the Court to defer to Argentina’s investigation under article 25 of this law, or a challenge to the jurisdiction [of the International Criminal Court] or to the admissibility of the case … , the competent chamber of the Court authorizes the Prosecutor to proceed with the investigation or retains its jurisdiction, the Argentine judicial body will decline jurisdiction in favour of the Court and, under the request of the latter, shall refer to it the file of the proceedings.
. In the situation referred to in article 89(2) of the Statute [concerning a challenge brought before a national court by the person sought for surrender on the basis of the principle of non bis in idem
], if the Court declares the case admissible, the competent tribunal will reject the challenge based on the principle of non bis in idem
Concerning the surrender of persons to the International Criminal Court, the Law provides:
. When complying with a request for arrest and surrender or for provisional arrest, the executive power will refer it to the competent judicial authority pursuant to article 5 of this law [establishing the competence of Federal Tribunals], which will issue the pertinent warrant in case the person sought is not yet detained.
Upon ratification of the 1998 ICC Statute, Argentina declared:
With regard to article 87, paragraph 2, of the [1998 ICC] Statute, the Argentine Republic hereby declares that requests for cooperation coming from the Court, and any accompanying documentation, shall be in Spanish or shall be accompanied by a translation into Spanish.