Article 93 (1), paragraphs (a) - (f), (h) & (j) set out the main types of assistance that States Parties are most likely to be requested to provide in relation to testimonial evidence.
Where a State consents, the Court can also request the State to transfer a person who is already in custody for another offence, for the purpose of testifying, or for identifying someone present at the Court (article 93 (1)(f) & (7)). The person must also give their informed consent to the transfer and will remain in custody while being transferred (article 93 (7)(a)(i) & (b)).
Obligations
In general terms, States will need to assist with the following, where requested by the Court:
a) Identifying and locating persons (article 93 (1)(a)).
b) Obtaining expert opinions and reports (article 93 (1)(b)).
c) Questioning victims and witnesses, including taking sworn statements from them (article 93 (1)(b)).
d) Questioning accused persons (article 93 (1)(c)).
e) Serving documents, such as requests to testify before the Court (article 93 (1)(d)).
f) Assisting witnesses and experts to attend the relevant proceedings (article 93 (1)(e)).
g) Conducting searches of persons (article 93 (1)(h)).
h) Preserving evidence such as audio, video, or written copies of interviews, statements and reports (article 93 (1)(j)).
i) Protecting victims and witnesses (article 93 (1)(j)).
j) [optional] Transferring persons in custody to the Court (article 93 (7)).
k) Ensuring the protection of the rights of all persons taking part in investigations in any capacity, in accordance with Article 55.
l) Providing adequate physical protection for accused persons (articles 57 (3)(c) & 64 (6)(e)).
m) Providing any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court (article 93 (1)(l)).
Implementation
a) Identification and location of persons within a State's territory
Administrative procedures may be needed to enable States to identify and locate nationals of their own State if the ICC requests this. For example, States could make use of their access to government records such as electoral rolls and motor vehicle registrations.
Different procedures may be needed to enable States to identify and locate nationals of other States whom the ICC wishes them to find. In either case, States must have procedures in place to locate those who are present upon as well as those who are about to enter, or leave, their territory. For example, States may wish to consider amending existing procedures or laws in relation to immigration and customs, to make it easier for them to know with certainty who is transiting their borders.
b) Obtaining expert opinions and reports
It would also be desirable for States to create and keep a register of different types of experts who reside in the State, who may be asked to prepare reports, such as medical experts, weapons experts, military strategy experts, and experts on gender issues. Article 100 (1)(d) provides that the Court will pay the costs of any expert opinion or report requested by the Court.
c) Questioning victims and witnesses, including taking sworn statements from them
A record of some kind will need to be made of all statements made by persons questioned in connection with an ICC investigation. At the very least, this will need to be a written record. However, it would be desirable to have as complete a record as possible, such as a video recording, in case the person is not able to attend the Court for some reason. Then their statement will be much more helpful to the Court, if the Court agrees to admit it into evidence. N
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