Models of Judicial Cooperation with Ad Hoc Tribunals and with the Permanent International Criminal Court in Europe

Abstract

This contribution deals with the legal problems (and dilemmas) arising in the field of judicial cooperation between States and international criminal justice systems (especially the ad hoc Tribunals and the International Criminal Court). Fundamental rights are easily in danger when judicial cooperation in criminal matters is involved, regardless of the model of cooperation adopted.

The problem of fundamental rights violation is especially evident at international level. It can be summarized as follows. On the one side, any international justice system needs the active help from States and international organizations in order to effectively enforce its own criminal system. On the other side, States and international institutions, whose cooperation is crucial, are out of control of the issuing jurisdiction. In short, the nub of the problem is to decide what value must prevail, in case of conflict between the need of cooperation and the need to grant a fair trial. Accepting the “fruit of the poisonous tree” could put the international institutions at the risk of being perceived as co-responsible of grave violations. However, excluding the product of cooperation on the basis of fundamental rights’ violation might lead to an ineffective international criminal system.

The practice shows how often judges are reluctant to relinquish their main objective—that is, bringing the persons responsible of grave international crimes to justice—solely because some breaches of relevant procedural safeguards have occurred during the cooperation phase. In any criminal justice system, as was once asserted, respecting the rules governing hunting is more important than the actual capture of the prey itself. However, when the pray is on the verge to escape, a faithful observance of such an approach often turns out to be impossible.