[1]           “1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.

2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:

(a) the identification and location of persons;

(b) the taking of testimony and the production of evidence;

(c) the service of documents;

(d) the arrest or detention of persons;

(e) the surrender or the transfer of the accused to the International Tribunal.”

[2]           “The Security Council, . . . Acting under Chapter VII of the Charter of the United Nations,

…

4. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute”.

[3]           As is well known, in the Barcelona Traction, Power & Light Co. case, the International Court of Justice mentioned obligations of States “towards the international community as a whole” and defined them as obligations erga omnes (I.C.J. Reports 1970, p. 33, para. 33). The International Law Commission has rightly made a distinction between such obligations and those erga omnes partes (Yearbook of the International Law Commission, 1992, vol. II, Part Two, p. 39, para. 269). This distinction was first advocated by the Special Rapporteur, G. Arangio-Ruiz, in his Third Report on State Responsibility (see ibid., 1991, vol. II, Part One, p. 35, para. 121; see also his Fourth Report, ibid, 1992, vol. Two, Part One, p. 34, para. 92).

[4]           It is worth mentioning that in the Lockerbie case, the United States contended before the International Court of Justice that “irrespective of the right claimed by Libya under the Montreal Convention, Libya has a Charter-based duty to accept and carry out the decisions in the Security Council resolution [784 (1992)], and other States have a Charter-based duty to seek Libya’s compliance” (I.C.J. Reports 1992, p. 126, para. 40). The Court did not however take any stand on this contention, in its Order of 14 April 1992 (ibid.). The fact that the obligation is incumbent on all States while the correlative “legal interest” is only granted to Member States of the United Nations should not be surprising. Only the latter category encompasses the “injured States” entitled to claim the cessation of any breach of Article 29 or to promote the taking of remedial measures. See on this matter Article 40 of the Draft Articles on State Responsibility adopted on first reading by the International Law Commission (former art. 5 of Part Two). It provides as follows in para. 2 (c): “[injured State means] if the right infringed by the act of a State arises from a binding decision of an international organ other than an international court or tribunal, the State or States which, in accordance with the constituent instrument of the international organisation concerned, are entitled to the benefit of that right”, in International Law Commission, Report to the Forty-eighth Session of the General Assembly, 1996, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 10 (A/51/10), (“I.L.C. Draft Articles”).

[5]           This Article provides that:

“An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Appeal Decision”), para. 38. See also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Krstić Appeal Decision”), paras. 20.

[2] For instance, those responsible for war crimes, crimes against humanity, and genocide cannot invoke immunity from national or international jurisdiction even if they perpetrated the crimes while acting in their official capacity (see Blaškić Appeal Decision, paras. 41, 42). See also Blaškić Appeal Decision, para. 51; Krstić Appeal Decision, paras. 24-27.

[3] Blaškić Appeal Decision, para. 38. See also Blaškić Appeal Decision, paras. 42-44.

[4] Blaškić Appeal Decision, para. 44.

[5] Blaškić Appeal Decision, para. 33. See also Blaškić Appeal Decision, para. 37.

[6] Blaškić Appeal Decision, para. 33.