神戸大学附属図書館デジタルアーカイブ
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https://doi.org/10.24546/00074116
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2024-04-24
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00074116 (fulltext)
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00074116
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open access
出版タイプ
Version of Record
タイトル
旧ユーゴスラヴィア国際刑事裁判所への被告人の「移送」に関する国家の義務
キュウ ユーゴスラウ゛ィア コクサイ ケイジ サイバンショ ヘノ ヒコクニンノ 「イソウ」 ニ カンスル コッカ ノ ギム
その他のタイトル
The Obligation of States to Transfer the Accused to the International Criminal Tribunal for the Former Yugoslavia
著者
著者名
村井, 伸行
Murai, Nobuyuki
ムライ, ノブユキ
所属機関名
神戸大学大学院国際協力研究科
収録物名
国際協力論集
巻(号)
8(3)
ページ
213-239
出版者
神戸大学大学院国際協力研究科
刊行日
2001-02
公開日
2007-09-05
抄録
The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the UN Security Council Resolution 827 (1993) under Article 41 of the United Nations Charter to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991. For this Tribunal to exercise its jurisdiction effectively, the persons accused by the Tribunal needs to be arrested and transferred to the Tribunal, which is placed_ in The Hague, the Netherlands. However, the Tribunal is not equipped with any judicial police organization and thus depends on the cooperation of States for arrest and transfer of the accused to the Tribunal. Article 29, paragraph 2 of the Tribunal's Statute expressly provides that States shall comply with requests for assistance or orders issued by a Trial Chamber of the Tribunal, including those for arrest, detention and transfer of the accused to the Tribunal. The Rules of Procedure and Evidence (RPE) of the Tribunal set forth detailed provisions on the procedure for arrest and transfer of the accused. Furthermore, the operative paragraph 4 of Resolution 827 reiterates that "all States shall cooperate fully with" the Tribunal and its organs and that they "shall take any measures necessary under their domestic law to implement" "the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute". UN Member States are thus under the obligation to arrest the accused persons within their territories and transfer them to the Tribunal. This study aims to examine two main issues on the obligation: (i) the scope and content of the obligation stipulated in the Statute and the RPE and (ii) the relation between the obligation and domestic law. There are two questions on the scope and content of the obligation to transfer the accused. The first question is concerned with the confusing nature of the text in some provisions regarding the obligation of States to cooperate with the Tribunal. It is pointed out that the provisions of the Statute lack uniformity of the competent organs to issue requests and orders, that the scope of their requests and orders are ambiguous, and that their legal binding forces are the same, irrespective of these problems. An analysis of and an answer to these questions are provided by an amicus curiae brief on and the judgement of the Appeals Chamber on the Subpoena duces tecum in the Blaskic Case. The second question is on the content of the obligation to transfer the accused. Rule 58 of the RPE stipulates that the obligations under Article 29 of the Statute, including the obligation to transfer the accused, "shall prevail over any legal impediment" to the transfer of the accused to the Tribunal "which may exist under the national law or extradition treaties of the States concerned." However, in the process of elaboration of the Statute and the RPE, divergent views were held by States, international organisations, non-governmental organisations, etc. regarding the content of the obligation to transfer the accused. The second main issue is on the relation between the obligation to transfer the accused and domestic law. This study examines the provisions regarding the conditions for transfer of the accused in national implementing legislation or constitutional law and addresses the following questions: (i) the double criminality rule and the relation between the four crimes stipulated in the Statute, as defined by the jurisprudence of the Tribunal, and those specified by domestic law; (ii) the non bis in idem principle and formal requests based on Article 9, paragraph 2 of the Statute and Rule 9 of the RPE; (iii) difference in evidence of guilt required by each domestic law to allow an arrest and detention of the accused; (iv) the political offenses and serious violations of international humanitarian law, (v) the non-extradition of nationals; (vi) discretionary character of the administrative authorities' decision with regard to extradition. There seem to be two fundamental elements behind these questions: (a) state sovereignty (the criminal jurisdiction and the discretionary powers of States with regard to extradition or asylum) and (b) human rights (the procedure for arrest and detention of persons, provided by constitutional law, extradition law, national implementing legislation and/or international human rights treaties). These elements might constitute serious obstacles to the obligation to transfer the accused. Furthermore, the current practice shows that States whose nationals are the accused persons, i.e. the former Yugoslavian States and entities, are reluctant to arrest their own nationals accused by the Tribunal and transfer them to it. The conclusion is that the obligation to transfer the accused contains fundamental elements of conflict with state sovereignty and human rights. These elements need to be examined further in the future.
カテゴリ
国際協力研究科
国際協力論集
>
8巻
>
8巻3号(2001-02)
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資源タイプ
departmental bulletin paper
言語
Japanese (日本語)
ISSN
0919-8636
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NCID
AN10418744
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110000551586
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