t for the kinds of assistance listed in this article. There are only two narrow grounds for denying such a request. The first is where the request concerns the production of documents or disclosure of evidence which relates to the requested State's national security (article 93 (4)). Article 72 provides further detail on the procedures to be followed when a State has national security concerns.
The second ground for denying requests is provided for in the combined language of articles 93 (1)(l) & 93 (5). Article 93 (1)(l) provides that any type of assistance which is not listed in paragraphs (a) - (k) of article 93 (1) is only compulsory where it is not prohibited by the law of the requested State. Article 93 (5) states: "Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them." Thus, if the type of assistance being requested is not listed in article 93 (1) and it is prohibited by the law of the requested State and the State has considered whether the assistance can be provided subject to conditions and so forth as per article 93 (5), it would seem that under these articles a State may then deny that request for assistance.
Duty to consult
By contrast, where execution of a particular measure is prohibited in the requested State "on the basis of an existing fundamental legal principle of general application", article 93 (3) does not explicitly state that the requested State can refuse to comply with the request. Instead, this provision requires a State to consult with the Court and further suggests that during the consultations, consideration be given as to whether the assistance can be rendered in another manner or subject to conditions. However, the provision requires the Court to "modify the request as necessary", if the matter cannot be resolved by consultation. Therefore it would seem to imply that a requested State may refuse to comply with such a request until the Court has modified the request so that it would not be prohibited in the State on the basis of an existing fundamental legal principle of general application. Thereafter the State must comply with the modified request.
Article 97 gives some examples of the type of problems that may impede or prevent execution of requests: insufficient information to execute the request, inability to locate the requested person or item after every attempt has been made to do so, and requests transmitted in a form that appears to require the State to breach a pre-existing treaty obligation to another State. In every case, the State must consult with the Court without delay in order to find a solution to the problem. The State cannot refuse to execute the request, or it will be in breach of its obligations under the Statute.
Obligations
a) States Parties must comply with all requests made by the Court in accordance with article 93, except where they have national security concerns (articles 72 & 93 (4)), or if the type of assistance being requested is not listed in article 93 (1) and it is prohibited by the law of the requested State (article 93 (1)(l)) and the State has considered whether the assistance can be provided subject to conditions and so forth as per article 93 (5).
b) Under article 93 (3), where execution of a particular measure of assistance is prohibited in the requested State "on the basis of an existing fundamental legal principle of general application", the State must consult with the Court promptly to resolve the matter, and should consider whether the assistance can be rendered in another manner or subject to condit
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