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"Prosecution International cooperation."
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Measures and mechanisms to strengthen international cooperation among prosecution services
International cooperation among prosecution services is an urgent necessity and cooperation mechanisms are evolving rapidly to keep pace with new technologies. Their evolution over the last decade or so reflects the new determination of States to work more closely with each other to face the growing threats of organized crime, corruption and terrorism. Because of the dynamic nature of these crimes, Member States must constantly refine and perfect their strategies. Yet, in spite of the considerable progress achieved at the bilateral, regional, and international levels, international cooperation in the investigation and prosecution of serious crimes still needs considerable strengthening. This paper reviews some key issues, trends, and innovative practices with respect to both formal and informal international cooperation in criminal matters. It considers some of the practical issues that have recently emerged during the implementation of these measures and strategies as well as some of the solutions that are being advanced. Adapted from the source document.
Journal Article
Credible Commitments and the International Criminal Court
The creation of an International Criminal Court (ICC) to prosecute war crimes poses a real puzzle. Why was it created, and more importantly, why do states agree to join this institution? The ICC represents a serious intrusion into a traditional arena of state sovereignty: the right to administer justice to one's one nationals. Yet more than one hundred states have joined. Social scientists are hardly of one mind about this institution, arguing that it is (alternately) dangerous or irrelevant to achieving its main purposes: justice, peace, and stability. By contrast, we theorize that the ICC is a mechanism to assist states in self-binding, and draw on credible commitments theory to understand who commits to the ICC, and the early consequences of such commitments. This approach explains a counterintuitive finding: the states that are both the least and the most vulnerable to the possibility of an ICC case affecting their citizens have committed most readily to the ICC, while potentially vulnerable states with credible alternative means to hold leaders accountable do not. Similarly, ratification of the ICC is associated with tentative steps toward violence reduction and peace in those countries precisely least likely to be able to commit credibly to foreswear atrocities. These findings support the potential usefulness of the ICC as a mechanism for some governments to commit to ratchet down violence and get on the road to peaceful negotiations.
Journal Article
The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case
For many political observers the successful creation of the International Criminal Court (ICC) came as a surprise, as major powers, in particular the United States, had opposed the plans for the ICC. Moreover, the institutional design of the ICC entails enormous sovereignty costs for states but only uncertain benefits. An analysis of the negotiations suggests that the court's successful creation can be attributed to persuasion and discourse within negotiations, that is, a shift in states' interests. The article develops a theoretical model of institutional change that defines the conditions under which persuasion and discourse can affect collective decision making. In particular, this study attempts to show that if (traditionally) weaker actors alter normative and institutional settings of negotiations they can further the chance of persuasion and discourse.
Journal Article
PROTECTING GOOD-FAITH COOPERATION AND INFORMATION
The criminal and immigration systems in the United States have increasingly overlapped, adversely affecting noncitizens even distantly involved in criminal activity. Individuals without legal status who have engaged significantly with a criminal organization can cooperate with law enforcement in exchange for formal immigration benefits. There are no formal protections, however, for individuals residing in the country without legal status who have engaged in minor criminal activity—so minor that charges are not brought against them—even when they cooperate with law enforcement to provide information on the larger criminal scheme. This seemingly contravenes the goals of criminal and immigration law by failing to protect vulnerable accomplices who have not been charged with wrongdoing.
This Note proposes shielding such susceptible populations by expanding immigration protections. In the criminal sphere, charged individuals who lack the ability to render the substantial assistance needed for formal cooperation can still be eligible for a “safety valve” if, in good faith, they provide details on the activities that they partook in. Recipients of safety-valve protections receive sentences below the defined statutory minimums for the crimes they have committed. They do not obtain as much of a reduction in sentencing as formal cooperators or informants do but still benefit from engaging honestly with law enforcement. This Note proposes mirroring such a protection—a lesser version of the S visa modeled after the safety valve—into the immigration context.
Journal Article
COOPERATING THROUGH THE GENERAL ASSEMBLY TO END SERIOUS BREACHES OF PEREMPTORY NORMS
The International Law Commission's 2019 Draft Conclusions on Peremptory Norms of International Law assert that States have an obligation to cooperate to end serious breaches of peremptory norms. International law provides scarce guidance, however, regarding how States are expected to fulfil that obligation. This article seeks to elaborate: first, whether the prohibition of crimes against humanity and the ‘basic rules’ of international humanitarian law are peremptory norms; second, what States are required to do to fulfil their obligation to cooperate; and third, how States might utilise the General Assembly as a forum through which to fulfil that obligation.
Journal Article
Flexible Institution Building in the International Anti-corruption Regime: Proposing a Transnational Asset Recovery Mechanism
Asset recovery is a fundamental principle of anti-corruption law, without which the financial damage from corruption cannot be repaired. Yet recovering assets is notoriously difficult and time-consuming, and the United Nations Convention Against Corruption provides little technical or institutional support to facilitate such returns. To remedy this, we propose the creation of a transnational asset recovery mechanism that could provide myriad services to states upon request, including gathering and publishing information, providing technical assistance and capacity building, helping to conclude agreements on asset return, and monitoring returned funds. Theoretically, we introduce the concepts of customizability and selectability to explain why a flexible transnational asset recovery mechanism has advantages over more formal international institutions, such as an international anti-corruption court. These benefits include lower financial and political costs, enhanced adaptability, and a greater likelihood of enhancing interstate cooperation regarding asset returns.
Journal Article
How Does Customary International Law Change? The Case of State Immunity
Customary international law (CIL) is a fundamental source of international law. But scholars lack a clear understanding of customary international law, as well as systematic statistical analyses of its workings. Existing theories posit that CIL is a cooperative equilibrium that can be sustained through reciprocity. Yet, CIL lacks institutional features that facilitate reciprocity and is commonly understood to apply universally, even to states that defect or reject a norm. Because the continued existence of CIL depends on state practice, the potential precedential effect of defection encourages cooperation as long as states value the cooperative norm. Consequentially, a state's decision to apply a CIL norm should be a function of the extent to which the norm is practiced in the community of states it interacts with rather than the past behavior of the specific state in an interaction. We test the implications with newly-collected data documenting if and when 121 states switched from absolute to restrictive foreign state immunity. We find no evidence of direct reciprocity. States that most valued absolute immunity and whose defection would most affect others were least likely to defect, but states became more likely to defect as the states whose practice most affected them defected.
Journal Article
Trials and Errors: Principle and Pragmatism in Strategies of International Justice
Advocacy groups such as Human Rights Watch and Amnesty International have made a historic contribution to the cause of international human rights by publicizing the need to prevent mass atrocities such as war crimes, genocide, and widespread political killings and torture. However, a strategy that many such groups favor for achieving this goal risks causing more atrocities than it would prevent, because it pays insufficient attention to political realities.
Journal Article
Who Pursues the Perpetrators? State Cooperation with the ICC
Despite the International Criminal Court's increased prominence in international politics, there remains marked variation in states' cooperation with the ICC. This article asks why do states cooperate with the ICC following an indictment, arrest warrant or request for information, and how do these patterns of cooperation affect the Court's ability to constrain state behavior? Using comparative case studies from Kenya, Côte d'Ivoire, and Libya, we suggest that states' cooperation with the ICC is a function of domestic political calculations, tempered by states' international partners and ambitions and the ICC's own learning process.
Journal Article