Human Rights and International Mutual Legal Assistance: Resolving the Tension (original) (raw)
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International Law and the Protection of Human Rights in the Inter-American System
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Inter-American Commission on Human Rights of the Organization of American States. Affiliation for identification purposes only. The opinions expressed are those of the author alone and are not to be attributed to the Organization of American States or any of its organs. 1. U.N. CHARTER art. 2, para. 1. 2. See id. arts. 3-4. 3. See ARTHUR LARSON ET AL., SOVEREIGNTY WITHIN THE LAW 125 (1965). 4. See WERNER LEVI, CONTEMPORARY INTERNATIONAL LAW: A CONCISE INTRODUCTION 73 (2d ed. 1991).
Extradition and Mutual Legal Assistance in the Draft Convention on Crimes Against Humanity
Journal of International Criminal Justice, 2018
Working on crimes against humanity, the International Law Commission (ILC) has modelled its draft articles on extradition and mutual assistance on corresponding provisions of the United Nations Conventions against Corruption and Transnational Organized Crime. Nevertheless, some provisions are clearly adapted to the special nature of crimes against humanity. This article seeks to explore how the ILC has navigated between producing a flexible and general framework and adapting the system more specifically to the specificities of crimes against humanity. The ILC has been censured for easily transposing already existing regimes that were not designed for such specific contexts. On closer scrutiny, that criticism is not entirely justified. A comparison with the parallel provisions in the Statute of the International Criminal Court (ICC) reveals that the ILC's provisions do not deviate much from the system as adopted by the ICC. This similarity may be indicative of the soundness of the ILC's approach in construing a framework that may contribute to the improvement of interstate cooperation in the suppression of crimes against humanity.
The Common Interest in International Law
2014
The work reported on in this publication has been financially supported by the european science Foundation (esF), in the framework of the research networking Programme GloThro. British library Cataloguing in Publication Data. a catalogue record for this book is available from the British library. no part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.
This Article concerns the relationship between the doctrine of universal jurisdiction and the principle of equality before the law. While inequality before the law always presents a challenge to the legitimacy of a criminal justice system, it has an especially devastating effect on universal jurisdiction's claim to legitimacy. At the same time, the exercise of universal jurisdiction lends itself to discrimination and arbitrariness far more readily than regular domestic prosecutions. This Article proposes a reform in the international law of universal jurisdiction that would ameliorate, as far as possible, the problem of inequality before the law in the exercise of universal jurisdiction. This reform introduces limitations on the liberty of states to " choose their battles " in the enforcement of international criminal law. The proposed reform assigns a pivotal role to the International Criminal Court (" ICC "). It sets forth a mechanism by which the ICC would designate particular states to exercise universal jurisdiction over crimes relating to a particular situation. Such designation would be a precondition for a state's liberty to exercise universal jurisdiction. The legal regime advocated here would thus replace the existing norm of international law that allows any state to exercise universal jurisdiction over core international crimes. This Article demonstrates that the proposed designation mechanism would constitute, in and of itself, a substantial guarantee of equality before the law in the exercise of universal jurisdiction. This Article then proceeds to propose prosecutorial guidelines that, under the proposed reform, a state would be required to apply in its exercise of universal jurisdiction. Finally, it sets forth a mechanism that would allow the ICC Prosecutor to monitor the compatibility of a state's exercise of universal jurisdiction with the principle of equality before the law. This international oversight mechanism is tailored with a view to minimizing, as far as possible, both sovereignty and economic costs for the state exercising universal jurisdiction. Far from limiting the reach of universal jurisdiction, the proposed reform would enhance the fight against impunity by diffusing current objections to the exercise of universal jurisdiction in absentia, thereby facilitating the assertion of such jurisdiction by states.