A horizontal Treaty on Cooperation in International Criminal Matters : the next step for the evolution of a comprehensive international criminal justice system?

• Author: Dire Tladi
• DOI: 10.10520/EJC-79785a7bc
• Published date: 01 January 2014
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a8
• Pages: 368-387

PhD (Rotterdam). Professor of International Law, University of Pretoria.

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On the evolution of international law see generally Tladi ‘South African lawyers, values and the new

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vision of international law: The road to perdition is paved with laudable goals’ 2008 (33) SAYIL 167.

The 1998 Rome Statute of the International Criminal Court.

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A horizontal Treaty on Cooperation in

International Criminal Matters: The next

step for the evolution of a comprehensive

international criminal justice system?

Dire Tladi *

Abstract

This pap er addres ses the interse ction betwee n two key con cepts in

intern ation al crim inal ju stice, n ame ly coop eratio n and c om plem entar ity.

Wh ile it is recognised tha t domes tic courts carry m ain respo nsibility for

ensuring accountability for the commission of international crimes, there

appears to be gaps in two areas. First, international law does not make

provision f or a com prehe nsive obligation to investigate and prose cute

such crim es. Se cond, there is no co mpreh ensive an d robust inters tate

cooperation obligation, necessary to ensure successful

domestic investigations and prosecutions. The paper assess two

initiatives designed to fill these gaps, and considers their stregths,

weaknesses and the possible synergies between them.

1 Statement of the issues

The evolution of international law from a state-centred system, obsessed with the

preservation of sovereignty, to a system concerned with the human condition has

accelerated the development of such fields of international law as international

human rights law and international criminal law. International criminal law centres

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around the Rome Statute of the International Criminal Court (hereinafter the

‘Rome Statute’ and the ‘ICC’) which seeks to improve the human condition by

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promoting justice and accountability, and by preventing impunity.

A horizontal Treaty on Coop eration in International Criminal Matters 369

The preamble of the Rome Statute affirms that prosecution for the most serious crimes ‘must be

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ensured by taking measures at the national level and by enhancing international cooperation’. It

also emphasises that the International Criminal Court ‘shall be complementary to national criminal

jurisdiction’. See Nouwen Complementarity in the line of fire: The catalysing effect of the

International Criminal Court in Uganda and Sudan (2013).

See, eg, Bert Swart ‘General Problems’ in Cassese, Gaeta and Jones (eds) The Rome Statute of

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the International Criminal Court: A commentary (Volume II) (2002) (Cassese, Gaeta & Jones) 1589,

who described the ICC as a ‘giant without arms and legs who needs artificial limbs to walk and

work’. See also Ciampi ‘The obligation to cooperate’ in Cassese, Gaeta and Jones (eds) 1607. See

further Swart ‘Arrest and Surrender’ in Cassese, Gaeta and Jones (eds)(2002) at 1640. See also

Tladi ‘The ICC decisions on Chad and Malawi: On cooperation, immunities and Article 98’ 2013 (11)

J of International Criminal Justice 199. Tladi ‘When elephants collide it is the grass that suffers:

Cooperation and the Security Council in the context of the AU-ICC dynamic’ 2014 (7) African J of

Legal Studies 378.

On the principle of complementarity and national implementation legislation in Africa see Stone

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and du Plessis ‘The implementation of the Rome Statute of the International Criminal Court (ICC)

in African countries’ available at http://www.issafrica.org (accessed 2014-07-21).

See, eg, essays in Bergsmo (ed) Active complementarity: Legal information transfer (2011).

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Efforts to strengthen international criminal justice have thus far focused on

the ICC. Two principles in particular have received much attention in discussions

on strengthening the ICC. The first of these, the principle of complementarity,

postulates that domestic courts have primary jurisdiction over international crimes

and that the ICC has jurisdiction only in the absence of national proceedings.3

Cooperation, the second principle, is a key principle of the Rome Statute system

because without the cooperation of states the ICC cannot function.4

Although the ICC is the central piece of the evolving system of international

criminal justice – the glue that holds the system together – the system cannot

develop its full potential without enhancing the capacity of states to bring

perpetrators of international crimes to justice. Efforts at enhancing the capacity

of national jurisdictions to contribute to the fight against impunity have tended to

focus on the availability and effectiveness of national legislation. In other

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instances, capacity building, both in terms of prosecutorial and investigative

techniques and tools, has been the focus of complementarity. Nonetheless, the

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existence of an international legal framework is just as fundamental in improving

and enhancing national level action against impunity for international crimes. The

Rome Statute itself is not sufficient as an international legal framework.

The purpose of this article is to assess the prospects for a comprehensive

convention aimed at facilitating national level action against the alleged

perpetrat ors of international crimes. In particular, the article will consider two

recent initiatives aimed at achieving conventions to enhance national level action

in relation to international crimes. The first of these is the initiative by Belgium,

The Netherlands and Slovenia for a convention on mutual legal assistance with