14
The ICC needs to rely substantially on the willingness of States and of international
organisations to provide support and to assist it in its work. This is especially true with
respect to information and material of importance and relevance to the investigation of
crimes and the prosecution of cases, and the arrest and surrender of persons alleged to
have committed crimes under the ICC Statute.
Unlike the national courts, the ICC does not have at its disposal the powers and apparatus
of the State legal and law enforcement system to enforce its orders and decisions. The
assistance of States parties, as well as of other States and international organisations, will
therefore be of the utmost importance to the proper functioning of the ICC.
The regime of international cooperation and judicial assistance under the ICC Statute was
carefully worked out. It is one of the most important and complex parts of the Statute in
its legal structure and implications, and for the interaction between the Court and States.
There is a general requirement for the States Parties, in accordance with the Statute, to
cooperate fully with the Court in its investigation and prosecution of crimes within the
jurisdiction of the Court. This provision is fundamental and would need to be given full
and practical effect. Equivocation will seriously compromise the ability of the Court to
achieve what it is supposed to achieve. It is therefore vital that the Court be accorded the
most effective cooperation and assistance possible.
One concrete measure of support now being widely advocated, by major Governments as
by the non governmental community, is the enactment of clear and strong implementing
legislation among member States. Implementing legislation is required to set the
domestic legal and procedural framework for carrying out the States cooperation
obligations and to deal with important practical issues, including: the definition and
adoption of ICC crimes into domestic law; arrest and surrender of persons; and assistance
and cooperation in the investigation of offences. A number of key States in Europe and
in the Commonwealth of Nations, including Australia19 and New Zealand20 and have
enacted such legislation. However, many more of the States Parties, including the small
island States of the Pacific, would need to undertake this task. The task is not an easy
one, judging by the models that now exist. The legislation in both Australia and New
Zealand appear quite comprehensive and cover a range of matters that enable and
facilitate assistance and cooperation with the ICC, as well as substantive criminal law and
constitutional law issues. With the necessary adaptations they could be models for others
to consider.
Concluding thoughts
Of necessity this is a selective and generalised survey of the potential for law reform and
related activities in the Pacific area. But it is one that offers the basis for some general
thoughts.
19
International Criminal Court Act 2002 (ICC Act) and International Criminal Court (Consequential
Amendments) Act 2002; see also Gillian Triggs, Implementation of the Rome Statute for the International
Criminal Court: a quiet revolution in Australian law, 2003, a paper at the Twilight Seminar, Institute for
Comparative and International Law, University of Melbourne.
20
International Crimes and International Criminal Court Act 2000