The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents

The Trial Proceedings of the International Criminal Court

The Trial Proceedings of the International Criminal Court ICTY and ICTR Precedents

by Karin N. Calvo-Goller

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90 04 14931 7 © 2006 Koninklijke Brill NV, Leiden, The Netherlands, and Karin N. Calvo-Goller Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

CONTENTS

Acknowledgements ................................................................................ Table of Cases ......................................................................................

xi xiii

Introduction ..........................................................................................

1

PART I PRECEDENTS OF INTERNATIONAL TRIALS Chapter I. The Nuremberg and Tokyo Precedents ........................ 1. Nature and Judicial Standards of the Tribunals ...................... 2. The Proceedings at the Nuremberg Tribunal .......................... 3. The Tokyo Tribunal: Fairness in Doubt .................................. 4. Appraisal ......................................................................................

9 9 10 13 15

Chapter II. The Proceedings at the ICTY and ICTR .................... 1. The Rules of Procedure and Evidence of the ICTY and of the ICTR ................................................................................ 2. Investigation ................................................................................ 3. The Indictment ............................................................................ 4. Initial Appearance of the Accused ............................................ 5. Defence Related Principles Applying Throughout the Proceedings .................................................................................. 5.1 Equality of Arms ................................................................ 5.2 Fair and Public Hearing .................................................... 5.3 The Presumption of Innocence ........................................ 5.4 The Minimum Guarantees of the Accused ....................

17

Chapter III. Pre-Trial Proceedings .................................................... 1. Pre-Trial Detention and Provisional Release ............................ 2. Pre-Trial Orders for the Appearance of Witnesses and the Production of Evidence ........................................................ 3. Preliminary Motions .................................................................... 4. Other Motions ............................................................................ 5. Deposition Evidence and Video-Link Testimony .................... 6. The Preparation of the Case for Trial ....................................

23 25 31 42 45 45 53 54 56 65 65 67 69 74 74 75

vi

contents

Chapter IV. The Trial Before the Ad Hoc Tribunals ...................... 1. Principles and Rules .................................................................... 2. Evidence ...................................................................................... 2.1 Admissibility and Relevance of Evidence ........................ 2.2 Corroboration ...................................................................... 2.3 Witness Testimony .............................................................. 2.4 Confidentiality and Anonymity of Witnesses .................. 2.5 Evidence Other than Testimony of Witnesses ................ 2.6 Rules Applicable in the Absence of Provisions .............. 2.7 Exclusion of Evidence ........................................................ 3. Motion for a Judgment of Acquittal .......................................... 4. Closing Arguments ...................................................................... 5. The Deliberations ........................................................................ 6. The Judgement ............................................................................ 7. The Sentence ..............................................................................

77 78 81 83 86 87 91 93 96 97 98 101 102 104 105

Chapter V. Post-Trial Proceedings .................................................... 1. Appellate Proceedings .................................................................. 1.1 Preliminary Requirements .................................................. 1.2 Rule 114 of the ICTR ...................................................... 1.3 The Grounds of Appeal .................................................... 2. Review Proceedings .................................................................... 3. Enforcement of Sentences .......................................................... 4. Pardon and Commutation of Sentences .................................... Concluding Remarks ............................................................................

115 115 116 118 119 127 128 132 137

INTERMEDIARY PART THE ADOPTED SYSTEM FOR INTERNATIONAL CRIMINAL TRIALS 1. The Adversarial and the Inquisitorial System .............................. 2. The Adopted System: A Combination Leading to a Sui Generis System ..............................................................................................

142 147

PART II THE TRIAL AT THE INTERNATIONAL CRIMINAL COURT Chapter I. Investigation and Prosecution .......................................... 1. The Initiation of an Investigation .............................................. 2. Warrants, Summons and Arrest ................................................

155 156 161

contents 3. Arrest in the Custodial State and the Right to Apply for Interim Release ............................................................................ 4. The Rights of the Investigated Person ...................................... 5. The Confirmation of Charges ....................................................

vii

162 163 169

Chapter II. Jurisdiction, Admissibility, Applicable Law .................... 1. Jurisdiction of the International Criminal Court ...................... 1.1 Complementary Jurisdiction ............................................ 1.2 Jurisdiction Ratione Materiae (Subject-Matter) .............. 1.3 Jurisdiction Ratione Temporis (Temporal) .................... 1.4 Jurisdiction Ratione Loci (Territorial) ............................ 1.5 Jurisdiction Ratione Personae (Personal) ........................ 2. Admissibility and Preliminary Rulings ...................................... 3. Applicable Law ............................................................................ 4. General Principles of Criminal Law .......................................... 4.1 Nullum Crimen Sine Lege .............................................. 4.2 Nulla Poena Sine Lege .................................................... 4.3 Non-Retroactivity .............................................................. 4.4 Exclusion of Jurisdiction Over Persons Under Eighteen ............................................................................ 4.5 Non-applicability of Statute of Limitations .................... 4.6 Individual Criminal Responsibility .................................. 4.7 Irrelevance of Official Capacity ...................................... 4.8 Responsibility of Commanders and Other Superiors .... 4.9 Superior Orders and Prescription of Law .................... 4.10 Grounds Excluding Criminal Responsibility .................. 4.11 Mistake of Fact or Mistake of Law ................................ 4.12 Mental Element ................................................................

173 174 174 175 181 181 182 184 186 186 188 190 191

Chapter III. International Cooperation and Judicial Assistance ...... 1. The Nature of International Cooperation ................................ 1.1 The Obligation to Cooperate .......................................... 1.2 Non-Party State Cooperation .......................................... 1.3 The Cooperation of International Organizations .......... 2. Implementation ............................................................................ 3. Exceptions to the Obligation to Cooperate .............................. 4. Measures of Enforcement ..........................................................

203 204 205 207 208 208 211 215

Chapter IV. The Trial ........................................................................ 1. Powers and Composition of the Trial Chamber .................... 2 Place of the Trial and Language of the Proceedings ............ 3. Public Trial ................................................................................ 4. Inability to Stand Trial ............................................................

217 218 220 224 225

191 192 192 194 195 197 198 199 200

viii 5. 6. 7. 8. 9. 10.

11.

12. 13. 14.

contents The Rights of the Accused ...................................................... Conduct of the Defence in Person .......................................... Amicus Curiae .............................................................................. Proceedings on Admission of Guilt .......................................... Grounds Excluding Criminal Liability .................................... The Participation of Victims in the Proceedings .................. 10.1 The Definition of “Victim” ........................................ 10.2 Application for Participation of Victims .................... 10.3 The Victim as a Witness ............................................ Evidence .................................................................................... 11.1 Defence Counsel and the Collection of Evidence .... 11.2 Relevance and Admissibility of Evidence .................. 11.3 Reliability ...................................................................... 11.4 Custody of Evidence .................................................... 11.5 Language of Evidence and its Translation ................ 11.6 Agreements on Matters of Evidence .......................... 11.7 Principles of Evidence in Cases of Sexual Violence ........................................................................ 11.8 Privileges ........................................................................ 11.9 Consequences of Failure to Disclose Evidence .......... 11.10 Judicial Notice .............................................................. 11.11 Protection of National Security Information .............. 11.12 Witness Testimony ...................................................... 11.13 Power of the Court to Compel Witness Attendance and Testimony .............................................................. 11.14 Audio or Video Link and Prior Recorded Testimony ...................................................................... 11.15 Examination and Cross Examination ........................ 11.16 Self-Incrimination ........................................................ 11.17 Incrimination by Family Members ............................ 11.18 Expert Witnesses .......................................................... 11.19 Evidence and the Protection of Victims and Witnesses ...................................................................... 11.20 Confidentiality and Anonymity of Witnesses ............ 11.21 Evidence Other than Testimony of Witnesses .......... 11.22 Hearsay Evidence ........................................................ 11.23 Exclusion of Evidence .................................................. Motion for a Judgment of Acquittal ........................................ Closing Arguments .................................................................... Sentencing ..................................................................................

226 233 237 238 243 244 244 247 249 250 251 254 255 256 256 258 258 260 263 264 267 269 270 272 273 274 275 276 279 280 282 284 286 287 289 289

contents

ix

15. Penalties ...................................................................................... 15.1 Imprisonment .................................................................. 15.2 Aggravating and Mitigating Circumstances .................. 15.3 Imposition of Fines and Orders of Forfeiture ..............

292 293 294 300

Chapter V. The Post Trial Proceedings ............................................ 1. Appeal and Revision ................................................................ 1.1 Appeal against Decisions of Acquittal or Conviction .. 1.2 The Grounds of Appeal ................................................ 1.3 Appeal against a Sentence ............................................ 1.4 Custody During Appeal Proceedings ............................ 1.5 Ne bis in Idem (Double Jeopardy) .................................. 1.6 Appeal Against Other Decisions .................................. 1.7 Time Limits for Filing an Appeal ................................ 2. Review of the Conviction or the Sentence ............................ 2.1 Decisions Subject to Revision ........................................ 2.2 Standing .......................................................................... 2.3 Grounds for Revision .................................................... 2.4 The Procedure for Revision ..........................................

303 304 306 306 309 311 312 313 319 320 321 322 322 326

Chapter VI. Enforcement .................................................................... 1. A System of Voluntary Enforcement ...................................... 2. The Conditions of Imprisonment ............................................ 3. Supervision ................................................................................ 4. The Reduction of a Sentence .................................................. 5. Decision or Request for Transfer ............................................ 6. Escape ........................................................................................ 7. Transfer upon the Completion of the Sentence .................... 8. Enforcement of Reparation Orders, of Fines and Forfeitures ..................................................................................

327 327 330 333 334 336 337 337

Conclusion ............................................................................................

341

Annex I. The Rome Statute of the International Criminal Court ................................................................................................ Annex II. The Rules of Procedure and Evidence ............................

343 427

Bibliography ..........................................................................................

535

Index ......................................................................................................

553

339

ACKNOWLEDGMENTS

I am grateful to the Academic College of Law for the research grants and to Professor Claude Klein for his unflinching encouragement. I would like to thank Attorney Eitan Alon for his professional and moral support, and Robert A. Stein, defence counsel, for having accepted to read the manuscript and no less for his remarks. I am indebted to Mr. David Talbert and Mr. Christopher Staker for helpful discussions about this project; to Mr. Graham Blewitt and Mr. Monroe Leigh for their referrals which enabled me to realize it; and to Ms. Marianne Vasacco for her constructive observations. Last but not least, I would like to thank my research assistants, Efrat Hakak, Yossi Zvitia, Nir Keidar, Roy-Gay Green, and Adi Leibovich for their contribution. August 2005

TABLE OF CASES

1) ICTY Aleksovski (IT-95-14/1) Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 Judgement, 24 March 2000 Judgement, 25 June 1999 Babic (IT-03-72) Sentencing Judgement, 29 June 2004 Blagojevic (IT-02-60) Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 15 September 2003 Blaskic (IT-95-14) Decision of the President on the Defence Motion Filed Pursuant to Rule 64, 17 April 1996 Decision of Trial Chamber I on the Application of the Prosecutor dated 24 June and 30 August 1996 in Respect of the Protection of Witnesses, 2 October 1996 Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, 5 November 1996 Subpeona Duces Tecum to the Republic of Croatia and to the Defence Minister Gojko Susak, 15 January 1997 Order Submitting the Matter to Trial Chamber II and Inviting Amicus Curiae, 14 March 1997 Decision on the Defence Motion to Dismiss the Indictment Based upon Defects in the Form Thereof (Vagueness/Lack of Adequate Notice of Charges), 4 April 1997 Decision on the Objection of Republic of Croatia Subpeona Duces Tecum, 18 July 1997 Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997 Decision on the Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its Reliability, 21 January 1998

xiv

table of cases

Decision on the Joint Application of the Prosecutor and the Defence for Depositions, 19 February 1998 Decision on the Defence Motion for Sanctions for the Prosecutor’s Failure to Comply with Rule 66(A) of the Rules and the Decision of 27 January 1997 Compelling the Production of All Statements of the Accused, 15 July 1998 Decision of Trial Chamber I on the Defence Motion to Dismiss, 3 September 1998 Judgement, 3 March 2000 Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 December 2000 Decision on Joint Defence Motion of Enver Hadzihasanovic and Amir Kubura for Access to Further Confidential Materials in the Appeal Proceedings of the Blaskic Case, 3 March 2004 Decision on the Prosecution’s Motion for Clarification of the Appeal’s Chamber Decision dated 4 December 2002 on Pasko Ljubicic’s Motion for Access to Confidential Material, Transcripts and Exhibits in the Blaskic Case, 8 March 2004 Judgement, 29 July 2004 Brdjanin (IT-99-36) Decision on Motion to set Aside Confidential Subpoena to Give Evidence, 7 June 2002 Decision on Interlocutory Appeal, 11 December 2002 Decision on Prosecution’s Second Request for a Subpoena of Jonathan Randal, 30 June 2003 Order to Amicus Curiae Prosecutor, 16 July 2004 Judgement, 1 September 2004 Bralo (IT-95-17) Decision on Access to Confidential Testimony and Documents, 7 March 2005 Cermak & Markac (IT-03-73) Decision Relating to Prosecutors’ Disclosure Obligation, 26 May 2004 Cesic (IT-95-10) Plea Agreement, 8 October 2003 Sentencing Judgement 11 March 2004 Order on Prosecution’s Motion for Protective Measures. 19 July 2002

table of cases

xv

Delalic and Others (IT-96-21) Decision on Defence Application for Forwarding the Documents in the Language of the Accused, 25 September 1996 Decision on the Motions for Separate Trials Filed by the Accused Delalic and the Accused Mucic, 25 September 1996 Decision on Application for Leave to Appeal (Provisional Release), 15 October 1996 Decision on Application for Leave to Appeal (Separate Trials), 14 October 1996 Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic, 11 November 1996 Decision on the Motion by the Accused Delalic based on Defects in the Form of the Indictment, 15 November 1996 Decision on a Motion for Provisional Release Filed by the Accused Esad Landzo, 16 January 1997 Decision on the Application for Adjournment of the Trial Date, 3 February 1997 Decision on the Prosecutor’s Motion for the Redaction of the Public Record, 5 June 1997 Decision on Zdavko Mucic’s Motion for the Exclusion of Evidence, 2 September 1997 Judgement, 16 November 1998 Decision on the Applications filed by the Defence for the Accused Zejnil Delalic and Esad Landzo on February 14 1997 and February 18 1997 respectively, 21 February 1997 Decision on the Motion on Presentation of Evidence by the Accused Esad Landzo, 1 May 1997 Decision on the Motion to Allow Witnesses K, L and M to Give their Testimony by Means of Video-Link, 28 May 1997 Judgement, 16 November 1998 Order in Relation to Witnesses on Appeal, 19 May 2000 Judgement, 20 February 2001 H. Delic (IT-96-21) Decision on Motion for Review, 25 April 2002 Leave to Appeal (Separate Trials), 14 October 1996 Decision on Application for Leave to Appeal (Provisional Release), 22 November 1995 Deronjic (IT-02-61) Sentencing Judgement, 30 March 2004

xvi

table of cases

Djukic (IT-96-20) Decision by Trial Chamber I on Preliminary Motions, 26 April 1996 Dokmanovic (IT-95-13a) Decision on the Motion for Release by the Accused Dokmanovic, 22 October 1997 Motions by the Accused, 7 July 1997 Order Terminating the Proceedings Against Dokmanovic, 15 July 1998 Erdemovic (IT-96-22) Sentencing Judgement, 29 November 1996 Judgement, 7 October 1997 Sentencing Judgement, 5 March 1998 Judgement, 7 October 1997 Furundzija (IT-95-17/1) Decision, 2 June 1998 The Trial Chamber’s Formal Complaint to the Prosecutor Concerning the Conduct of the Prosecution, 5 June 1998 Decision, 16 July 1998 Judgement, 10 December 1998 Judgement, 21 July 2000 Galic (IT-95-14/2) Decision on Interlocutory Appeal Concerning Rule 92 bis (C) of the Rules, 7 June 2002 Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002 Hadzihasanovic & Kubura (IT-01-47) Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002 Decision on the Refreshment of a Witness’s Memory and on a Motion for Certification to Appeal, 19 December 2003 Decision on the Prosecution’s Application to Re-Open its Case, 1 June 2005 Jelisic (IT-95-10) Judgement, 14 December 1999 Judgement, 5 July 2001 Decision on Motion for Review, 2 May 2002

table of cases

xvii

Josipovic (IT-95-16) Decision on Motion for Review, 2 April 2004 Karadic and Mladic (IT-95-5-R61/IT-95-18) Decision Rejecting the Application Presented By Messrs Medvene and Hanley III Seeking Leave to File Briefs Challenging the Fairness of the Statute and the Rules of Procedure and Evidence, 24 July 1996 Kordic & Cerkez (IT-95-14/2) Order on Motion to Compel Compliance by the Prosecutor with Rules 66(A) and 68, 26 February 1999 Decision on Defence Motions for Judgement of Acquittal, 6 April 2000 Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000 Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and one Formal Statement, 18 September 2000 Oral Decision, Transcript of 18 October 2000 Decision on Appellant’s Notice and Supplemental Notice of Prosecution’s Non-Compliance with its Disclosure Obligation under Rule 68 of the Rules, 11 February 2004 Judgement, 17 December 2004 Kovacevic & Drljaca (IT-97-24) Initial Indictment, 13 March 1997 Decision Stating Reasons for Appeal’s Chamber’s Order of 29 May 1998, 2 July 1998 Decision on Request for Approval of Defence Experts, 8 October 2002 Krnojelac (IT-97-25) Judgment, 15 March 2002 Judgement, 17 September 2003 Kunarac and Others (IT-96-23 & 23/1) Judgement, 12 June 2002 Judgement, 22 February 2001 Kupreskic and Others (IT-95-16) Decision on Motion by the Prosecutor for Withdrawal of Indictment Against Marinko Katava, 19 December 1997 Decision on Defence Motion for Separate Trials, 15 May 1998 Decision on Communications Between the Parties and their Witnesses, 21 September 1998

xviii

table of cases

Decision, 11 January 1999 Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, 17 February 1999 Decision on the Registrar’s Withdrawal of Assignment of Defence Counsel, 3 December 1999 Judgement, 14 January 2000 Appeal Judgement, 23 Oct. 2001 Krajisnik (IT-00-39) Decision on the Defence’s Motion for an Order setting Aside the Registrar’s Decision Declaring Momcilo Krajisnik Partially Indigent for Legal Aid Purposes, 20 January 2004 Decision on Two Expert Witnesses (Nielsen & Riedelmayer), 31 March 2004 Decision Pursuant to Rule 15 bis (D), 16 December 2004 Krstic (IT-98-33) Decision on the Defence Motions to Exclude Exhibits in Rebuttal and Motion for Continuance, 4 May 2001 Judgement, 2 August 2001 Judgement, 19 April 2004 Kvorka and Others (IT-98-30/1) Decision on Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, 19 March 1999 Decision, 22 March 2004 Lajic (IT-95-8) Order for the Withdrawal of the Charges Against the Person Named Goran Lajic and for His Release, 17 June 1996 Lazarevic (IT-03-70) Decision on Defence Request for Provisional Release, 14 April 2004 Martic (IT-95-11) Decision on Motion Filed by the Defence of Milan Martic for Access to Confidential Transcripts and Documents, 25 February 2004 D. Milosevic (IT-98–29/1) Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should be Referred to Another Court Under Rule 11bis, 1 February 2005

table of cases

xix

S. Milosevic (IT-99-37) and (IT-02-54) Decision on Review of the Indictment and Application for Consequential Orders, 24 May 1999 Order for Detention on Remand, 3 July 2001 Order Inviting Designation of Amicus Curiae, 30 August 2001 Order Concerning the Provision of Documents to Amici Curiae, 19 September 2001 Decision on Preliminary Motions, 8 November 2001Reason for Refusal of Leave to Appeal from Decision to Impose Time Limit, 16 May 2002 First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses, 3 May 2002 Decision on Prosecution Motion for the Admission of Witness Statements Relevant to Events in Gacko, Visegrad, Zvornik and Sanski Municipalities in Lieu of Viva Voce Testimony Pursuant to Rules 54 and 92 bis, 31 October 2003 Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 Decision on Prosecution’s Motion Under Rule 73(A) for a Ruling on the Competence of the Amici Curiae to Present a Motion for Judgement of Acquittal Under Rule 98bis, 5 February 2004 Decision on Motion for Judgment of Acquittal, 16 June 2004 Reasons for Decision on Assignment of Defence Counsel, 22 September 2004 Decision on Prosecution Application to Strike Appellant’s Brief in the Appeal of the Decision on Contempt of the Tribunal Costa Bulatovic, 23 June 2005 Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 Contempt Proceedings against Kosta Bulatovic, Decision on Contempt of Tribunal, 13 May 2005 Milutinovic and Others (IT-99-37) Decision on Prosecution’s Motion for Protective Measures, 17 July 2003 Mrksic and Others (IT-95-13/1) Decision on Confidential Prosecution Motions for Protective Measures and Nondisclosure and Confidential Annex A, 9 March 2005

xx

table of cases

Naletilic and Martinovic, (IT-98-34) Decision on Defence Motion Concerning Translation of all Documents, 18 October 2001 Judgement, 31 March 2003\ Dragan Nikolic (IT-94-2) Order for Release of Audio-Visual Record and Permitting Photography, 27 April 2000 Sentencing Judgement, 18 December 2003 Judgement on Sentencing Appeal, 4 February 2005 Drago Nikolic (IT-95-2) Review of the Indictment Pursuant to Rule 61, 9–13 October 1995 Momir Nikolic (IT-02-60/1) Sentencing Judgement, 2 December 2003 Obrenovic (IT-02-60/2) Sentencing Judgement, 10 December 2003 Oric (IT-03-68) Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, 21 October 2004 Plavsic (IT-00-39&40/1) Sentencing Judgement, 27 February 2003 Rajic (IT-95-12) Rule 61 Decision, 13 September 1996 Decision on the Defence Motion on the Form of the Indictment, 27 April 2004 Rasevic (IT-97-25/1) Decision on the “Defence’s Preliminary Motions Pursuant to the Rules 50 (C) and 72 (A)(ii)” of 10 June 2004, 27 July 2004 Seselj (IT-03-67) Decision on Motion by Vojislav Seselj Challenging the Amended Form of Indictment, 26 May 2004

table of cases

xxi

Sikirica and Others (IT-95-8) Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 27 September 2000 Sentencing Judgement, 13 November 2001 Judgement on Defence Motions to Acquit, 3 September 2001 Simic and Others (IT-95-9) Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999 Ex Parte Confidential Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999 Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, 7 June 2000 Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic, 3 November 2004 Stakic (IT-97-24) Decision on the Defence Motion for Extension of Time, 26 April 2004 Stanisic (No. IT-03-69) Decision on Request for Approval of Defence Experts, 8 October 2002 Decision Against on Provisional Release, 28 July 2004) Stankovic (IT-96-23/2) Decision for Further Information in the Context of the Prosecutor’s Request Under Rule 11 bis, 9 February 2005 Decision on Referral of Case Under Rule 11 bis, 17 May 2005 Strugar (IT-01-42) Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98 bis, 21 June 2004 D. Tadic (IT-94-1) Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995 Decision on the Defence Motion on Jurisdiction, 10 August 1995 Decision on the Defence Motion on the Form of the Indictment, 14 November 1995

xxii

table of cases

Decision on the Defendant Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 Decision on the Defence Motion on the Principle of Non-bis-in idem, 14 November 1995 Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness, 14 November 1995 Decision on Defence Motion to Prevent the Contamination of Testimony, 3 May 1996 Decision on the Defence Motion on Severance of the Indictment, 3 May 1996 Decision on the Defence Motion to Summon and Protect Defence Witnesses and on the Giving of Evidence by Video-Link, 25 June 1996 Decision on the Defence Motion to Summon and Protect Defence Witnesses, 25 June 1996 Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness ‘R’, 31 July 1996 Decision on the Defence Motion to Dismiss Charges, 13 September 1996 Decision on Prosecution Motion for Production of Defence Witness Statements, 27 Nov. 1996 Decision on the Prosecutor’s Motion to Withdraw Protective Measures, for Witnesses L, 5 December 1996 Opinion and Judgement, 7 May 1997 In the Case of Dragan Opacic, Decision on Application for Leave to Appeal, 3 June 1997 Sentencing Judgement, 14 July 1997 Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, App. Ch., 15 October 1998 Judgement, 15 July 1999 Order to Permit Photography, 11 November 1999 Appeal Judgement on Allegations of Contempt against prior Counsel, Milan Vujin, Judgement, 27 February 2001 Judgement in Sentencing Appeals, 26 January 2000 Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000 Decision on Motion for Review, 30 July 2002 Tarculovski (IT-04-82) Decision on Johan Tarculovski’s Motion Challenging Jurisdiction, 1 June 2005

table of cases

xxiii

Todorovic (IT-95-9/1) Sentencing Judgement 31 July 2001 Vasiljevic (IT-98-32-A) Judgement, 25 February 2004 Zaric (IT-95-9) Decision on Defence Application for Leave to Use the Native Language of the Assigned Counsel in the Proceedings, 21 May 1998

2) ICTR Akayesu (ICTR-96-4) Decision on Preliminary Motion Submitted by the Defence on the Form of the Indictment and Exclusion of Evidence, 27 September 1996 Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998 Warning Against Defence Counsels, 18 March 1998 Judgement, 2 September 1998 Sentence, 2 October 1998 Decision, Suspension of Time-Limit for Filing Briefs, 21 October 1999 Order (For Translation of Appellant’s Brief ), 29 March 2001 Judgement, 1 June 2001 Bagasora (ICTR-96-7) Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997 Decision on the Prosecution Motion for Adjournment, 17 March 1998 Decision on the Defence Motion for Pre-Determination of Rules of Evidence, 8 July 1998 Decision on Continuation or Commencement de novo of the Trial, 11 June 2003 Bagilishema (ICTR-95-1) Judgement, 7 June 2001 Barayagwiza (ICTR-97-19) Decision, 3 November 1999 Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000

xxiv

table of cases

Judgement, 31 March 2000 Decision on Review and/or Reconsideration, 14 September 2000 Decision on Defence Counsel Motion to Withdraw, 2 November 2000 Bizimungu and Others (ICTR-99-50) Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 Prosecutor v. Kabiligi & Ntabakuze (ICTR-96-34) Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to Declare the Indictment Void ab Initio, 13 April 2000 Kajelijeli (ICTR-98-44) Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and to Supplement the Record of 8 December 1999, 8 May 2000 Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002 Judgement and Sentence, 1 December 2003 Judgement, 23 May 2005 Kambanda (ICTR-97-23) Decision Ordering Continued Detention, 1 May 1998 Judgement and Sentence, 4 September 1998 Appeals Chamber Judgement, 19 October 2000 Kamuhanda (ICTR-99-54) Decision on Kamuhanda’s Extremely Urgent Motion for Leave to Vary the List of Defence Witnesses (Rule 73 ter), 15 April 2003 Decision on the Motion for Severance and Separate Trial Filed for the Accused, 7 November 2000 Decision on Kamuhanda’s Motion to Admit Evidence Pursuant to Rule 89 of the Rules of Procedure and Evidence, 10 February 2003 Judgement, 22 January 2004 Kanyabashi (ICTR-96-15) Decision on Defence Preliminary Motion for Defects in the Form of the Indictment, 31 May 2000 Decision (Motion for Review or Reconsideration), 12 September 2000

table of cases

xxv

Karemera (ICTR-98-44) Decision on the Defence Motion, Pursuant to Rule 72 of Rules of Procedure and Evidence, Pertaining to, inter alia, Lack of Jurisdiction and Defects in the Form of the Indictment, 25 April 2001 Kayishema & Ruzindana (ICTR-95-1) Judgement and Sentence, 21 May 1999 Muhimana (ICTR-95-1B) Judgement and Sentence, 28 April 2005 Musema (ICTR-96-13) Judgement and Sentence, 27 January 2000 Arret (“Defence Motion Under Rule 68 Requesting the Appeals Chamber to Order Disclosure of Exculpatory Material and for Leave to File Supplementary Grounds for Appeal”), 18 May 2001 Ndindabahizi (ICTR-2001-71) Judgement and Sentence, 15 July 2004 Ngirumpatse (ICTR-97-44-1) Decision on the Release of the Accused, 10 December 1999 Niyitegeka (ICTR-96-14) Decision on the Defence Motion for Disclosure of Evidence, 4 February 2000 Judgement, 9 July 2004 Ntagerura and Others (ICTR-99-46) Oral Decision, 4 July 2002 Judgement and Sentence, 25 February 2004 Ntakirutimana and Others (ICTR-96-10) Decision On The Prosecutor’s Motion For Judicial Notice Of Adjudicated Facts, 22 November 2001 Nsegiyumva (ICTR-96-12) Decision on the Defence Motion Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, 13 April 2000

xxvi

table of cases

Nyiramasuhuko and Ntahobali (ICTR-97-21) Decision on Nyiramasuhuko’s Preliminary Motion Based on the Form and the Substance of the Indictment, 1 November 2000 Decision on the Defence Motion to Suppress Custodial Statements by the Accused, 8 June 2001 Ruggiu (ICTR-97-32) Judgement and Sentence, 1 June 2000 The President’s Decision on the Prosecutor’s Ex Parte Application for the continued detention of Georges Ruggiu in the Tribunal’s Detention Facility in Arusha, 17 January 2003 Rutaganda (ICTR-96-3) Judgement and Sentence, 6 December 1999 Décision Relative à la Requête Urgente de la Défense en Communication et Admission de Moyens de Preuve Supplémentaires et Ordonnance Portant Calendrier, 12 décembre 2002 Semanza (ICTR-97-20) Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000 Decision, 31 May 2000 Requête en Révision de la Décision de la Chambre d’Appel du 31 Mai 2000 Judgement and Sentence, 15 May 2003 Serushago (ICTR-98-39) Sentence, 5 February 2000 Reasons for Judgement, 6 April 2000

3) ICC Situation in the Democratic Republic of Congo, ICC-01/04, Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004 Situation in the Democratic Republic of Congo, ICC-01/04, Decision on the Prosecutor’s Application for Leave to Appeal, 14 March 2005 Situation in the Democratic Republic of Congo, ICC-01/04, Decision on the Prosecutor’s Request for Measures under Article 56, 26 April 2005

table of cases

xxvii

Situation in Darfour, Sudan, ICC-02/05, Decision Assigning the Situation in Darfour, Sudan to Pre-Trial Chamber I, 21 April 2005 Situation in Uganda, ICC-02/04 Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, 5 July 2004

INTRODUCTION

The establishment of the International Criminal Court to try individuals who commit the most serious crimes under international law constitutes a momentous step forward. It is the last major institution that was created in the twentieth century, an era during which horrors and wars to an extent unknown in other centuries have occurred. The Rome Statute creating the International Criminal Court (hereinafter “the ICC” or “the Court”), has laid the foundation for an international mechanism to bring the architects and perpetrators of grave international crimes to justice.1 The Court does not have the benefit of its own police force but will rely on the co-operation of states to assist in its investigations and to carry out its judicial orders. Under the Rome Statute, and for the very first time in the framework of international criminal proceedings, victims of crimes and their families or their legal representative, can access the Court to express their views and concerns, and they may claim reparation for the wrongs suffered. This constitutes a significant step forward, as previously established international criminal tribunals were established to do justice in the name of the abstract notion of “humanity” or of the international community. The ICC is to do justice in the presence of the victims, if they so wish. The focus of this work is on the proceedings of the International Criminal Court and of the ad hoc Tribunals, and not on the substantive law. It covers the Court and ad hoc Tribunal’s Statutes and their respective Rules of Procedure and Evidence. At first sight, these proceedings resemble those of trials in common law systems, but they do contain traits pertaining to civil law proceedings. The basic framework of the ICC’s trial system can be found in the International Military Tribunals of Nuremberg and Tokyo. With the creation of the International Tribunal for the Former Yugoslavia (ICTY), new rules of procedure and evidence, reflecting the evolution of human rights since World War II, have been established, interpreted and applied by both the Yugoslavia Tribunal as well as the International Tribunal for Rwanda (ICTR). As is well known, in international law precedents are not considered binding. In practice, international courts and

1 Rome Statute of the International Criminal Court, adopted by the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/9 (17 July 1998), (hereinafter the “Rome Statute” or the “ICC Statute”), reprinted in 37 ILM (1998), at 999.

introduction

2

tribunals, as well as the parties at international trials, refer to precedents in support of their position or to strengthen their case. It is foreseeable that the application and interpretation of the rules by the ad hoc Tribunals will be referred to in the context of ICC trials. Particularly, since the Rules of Procedure and Evidence of the ad hoc International Tribunals constituted the framework for the elaboration of the Rules of the International Criminal Court. The Rules of Procedure and Evidence of the ICC have been adapted to its own context and have been considerably refined. Nonetheless, the proceedings as such, the experience gained from, and the decisions rendered by the ad hoc Tribunals, constitute valuable, if not the only guidelines for the all those involved in a trial before the ICC. The Rome Statute, together with the Rules of Procedure and Evidence2 govern the various stages of the proceedings. They provide for the rights and obligations of the parties at trial, the rights of the suspect from the beginning of the investigation, as well as the right of the accused or convicted person. The upholding of these rights constitutes a precondition to the ensurance of a fair trial. The world’s perception and judgement of the International Criminal Court will depend on its effectiveness, the degree of fairness of the prosecution and of the trials. It might be questioned whether persons prosecuted for the most heinous crimes known to mankind should be entitled to rights, or if they should at all be defended, but the very nature of these crimes requires that their rights be respected at all stages in order to avoid anyone being falsely accused or condemned. It should not be overlooked that not all those who were indicted and brought before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda for having committed the most heinous crimes, were found guilty upon trial. The Court is expected to play an exemplary role in the field of criminal justice and consequently to apply the highest, rather than the minimum internationally recognised standards of human rights. In view of the gravity of the crimes under the Court’s jurisdiction, the adherence to the highest standards may have implications on the extent and measures required to protect victims and witnesses. Nonetheless, and depending on the circumstances, victims and witnesses may be exposed to intimidation and retaliation well before the trial starts and long after the accused has been convicted, even more so if they have been instrumental in the discovery of truth as witnesses. The International Criminal Court has a mandate to take appropriate measures to protect victims and witnesses. However, such measures

2

Rules of Procedure and Evidence, UN Doc. PCNICC/2000/Rev. 1/Add. 1.

introduction

3

must be consistent with the minimal procedural guarantees for a fair trial. Fairness of the trial cannot be detached from events which occur during the process, starting from the initial suspicion by an authority of a person’s involvement in a crime against international law and leading to the PreTrial Chamber. Non-respect for the rights of a person under investigation may have negative implications on the fairness of the trial itself.3 The Rome Statute provides for some, but not all the rights recognised to suspects in international instruments. However, there are rights not explicitly provided for in international instruments which are recognised by the Rome Statute. The distinctive features of the International Criminal Court, the applicable law, the gravity of the crimes within its jurisdiction, a purpose made set of rules of procedure and evidence, and a trial system which contains many elements of the adversarial, but some of the inquisitorial system, means that a trial before the ICC differs markedly from trials before any domestic criminal court. If at first sight the trial system of the Court is largely adversarial in its approach, however, legal constructs or doctrines unique to a given legal system are not automatically incorporated into international criminal proceedings. The role of the Prosecutor under the Rome Statute is to establish the truth and can be compared to the role of the investigating judge in several civil law systems. Judicial supervision by a Pre-Trial Chamber during the investigative stage is a civil law tradition. There is no jury sitting at the Court. The proceedings on an admission of guilt in the Rome Statute have similarities with common law rules relating to guilty pleas but features of the civil law summary procedure can be found therein as well. The admission of evidence at the ICC differs in some aspects from the general adversarial system, but the standard of proof that the accused be found guilty beyond a reasonable doubt and arguments that the Prosecution failed to prove guilt to this extent, follows commonlaw standards of proof. The merits and the shortcomings of ICC’s trial system will be seen more in depth in the context of the trial proceedings. The International Criminal Court is a permanent sui generis judicial institution of a consensual nature established by means of a multilateral treaty. 3 In the Rome Statute as well as in the Rules of Procedure and Evidence, the individual being investigated, arrested, appearing before the Pre-Trial Chamber and, more in general, at any stage of the proceedings up until the confirmation of charges, is referred to as “the person” being investigated or against whom warrants are being sought, thereafter he is “the accused”. In case of conviction by the Trial Chamber, he is “the convicted person”. Upon a sentence of imprisonment, he is referred to as the “sentenced person”. The use of the pronoun ‘he’ does not imply that all suspects, accused or indicted are men, the list of the accused at the International Criminal Tribunal for Rwanda includes two women. One woman was sentenced by the International Criminal Tribunal for the Former Yugoslavia.

4

introduction

The Rome Statute constitutes the legal foundation and the framework within which the Court shall act, as well as the basis for its procedure. Initially, the International Criminal Court shall have jurisdiction to prosecute persons accused of genocide, crimes against humanity or war crimes.4 The jurisdiction of the International Criminal Court is complementary to national criminal jurisdiction, it will only proceed when national courts are unable or unwilling to do so. The traditional jurisdictional jealousy of states over crimes was therefore set aside as states retain primary jurisdiction to try perpetrators of international crimes. The Rome Statute establishes which law is to be applied in the first place by the Court—namely, the Statute, the Elements of Crimes5 and the Rules of Procedure and Evidence. Up until the final days of the Rome Conference, the Rome Statute was not intended to create substantive international criminal law and for the most part it does not.6 Nevertheless, the Statute is seen as an expression of what the states that voted in favour of, consider to be the substantive international criminal law to be applied by the Court.7 The crimes that fall within the jurisdiction of the Court are, with very few exceptions, based on existing international customary and treaty law.8 The Elements of Crimes are not intended to create new law, but to “assist the Court in the interpretation and application of Articles 6, 7 and 8”.9 As opposed to substantive criminal law, the Rome Statute

4 The Court will not have jurisdiction over the crime of aggression until a provision defining the crime and setting the conditions under which the Court shall exercise jurisdiction will be adopted, Rome Statute, above note 1, Article 5 (2). 5 Finalized Draft Text on the Elements of Crimes, UN Doc. PCNICC/2000/3/Add.2. (6 July, 2000). 6 An exception would be Article 8 (2)(b)(viii) of the Rome Statute on direct or indirect transfer of civilian population. However, the Elements of Crime provide that the term “transfer” is to be interpreted in accordance with the relevant provisions of international humanitarian law, which prohibit ‘forcible’ transfers. Consequently, beyond the other elements, a non-forcible transfer still does not constitute a war crime. On the Rome Statute and the general principles of criminal law, see Claus Kress, Die Kristallisation eines Allgemeinen Teils des Völkerstrafrechts: Die Allgemeinen Prinzipien des Strafrechts im Statut des Internationalen Strafgerichtshofs, HuV-I 12 (1999), at 4. 7 Otto Triffterer, Preliminary Remarks: The Permanent ICC—Ideal and Reality, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999), at 40–41. Reference to this Commentary, which is the work of fifty-one authors, will hereinafter be “COMMENTARY ON THE ROME STATUTE ”, preceded by the name of the author. 8 The crime of genocide for example, as defined in Article 6 of the Rome Statute is identical to the definition provided by the Convention on the Prevention and Punishment of the Crime of Genocide entered into force 12 January 1951, 78 U.N.T.S. 277. Genocide is a crime under customary international law; see Reservation to the Genocide Convention, 1951 I.C.J., at 15. 9 Rome Statute, above note 1, Article 9. Articles 6, 7 and 8 define the crimes within the jurisdiction of the Court.

introduction

5

and the Rules of Procedure and Evidence were meant to and indeed create norms of international criminal procedural law. The effect of these new norms is therefore constitutive just as the provisions in the Rome Statute on the exercise of jurisdiction of the ICC.10

10 The Rules of Procedure and Evidence elaborated by the Preparatory Commission for the International Criminal Court and adopted by the Assembly of States Parties, are not limited to strictly technical procedural and evidentiary issues, fundamental principles are contained therein. The limits between “substance” and “procedure” are not clearly defined in international law. Nevertheless, the substantive importance of the rules of procedure and evidence was acknowledged by the Ad Hoc Committee as of 1995, see Report of the Ad Hoc Committee on the Establishment of the International Criminal Court, U.N. GAOR, 50th Session, Supp. No. 22, U.N. Doc. A/50/22 (1995), 5, 50.

PART I

PRECEDENTS OF INTERNATIONAL TRIALS

The idea to establish an international criminal court to try individuals for the commission of international crimes was first put forward at the 1899 Hague Conference and was again considered after World War I, but never before did the need to bring perpetrators of major crimes to justice emerge as clearly as after World War II.11 The disclosure of the horrors which had occurred during the war and the defeat of the Axis Powers led to the trials of major war criminals before the International Military Tribunal at Nuremberg (hereinafter the “Nuremberg Tribunal”),12 and before the 11 Over the centuries and until 1945, ‘war crime’ trials were a very rare event. The Breisach trial is sometimes referred to as “the first international war crimes trial”. In 1474 at Breisach, Austria, an ad hoc Tribunal made up of twenty-eight judges from states members of the Holy Empire tried the Burgundian governor Peter von Hagenbach for murder, perjury, rape and other offences including orders to kill. See Georg Schwarzenberger, 2 INTERNATIONAL LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS, Vol. II, THE LAW OF ARMED CONFLICT, Stevens & Sons, London (1968), at 465 (hereinafter “INTERNATIONAL LAW AS APPLIED”). See also Yves Beigbeder, JUDGING WAR CRIMINALS, THE POLITICS OF INTERNATIONAL JUSTICE, New York: St. Martin’s (1999), at 5. Hagenbach’s counsel pleaded that the accused had been following orders from his superior Duke Charles of Burgundy (Charles the Terrible). The defence of superior orders was rejected, Hagenbach was found guilty and sentenced to death. The significance of this trial is that over five centuries ago such acts were identified as criminal, that the accused was brought to justice, and most significantly that superior orders did not relieve the defendant of criminal responsibility. However, it is questionable whether this case can be seen as an “international war crime trial” precedent for two reasons: 1. As the Swiss-Burgundian war did not start till 1476, the horrors committed by Hagenbach, despite their gravity, did not constitute a war crime since they were not committed in the context of a war; 2. The Tribunal was composed of judges from states that were members of the Holy Empire, the latter and not the former was, de jure, the subject of international law. Consequently the Tribunal can be characterized as an intrastate rather than as an international Tribunal. See Timothy. L.H. McCormack, From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime, in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES, Timothy L.H. McCormack and Gerry J. Simpson (eds.), Kluwer Law International (1997), at 31–63 (hereinafter “THE LAW OF WAR CRIMES”). After World War I, the 1919 Versailles Treaty provided for the establishment of an international tribunal to try Kaiser Wilhelm II. Article 227 of the Treaty of Versailles established a “special tribunal” for the trial of Wilhelm II. However the German Kaiser took refuge in the Netherlands which refused to surrender him to the Allied Powers and therefore the tribunal never came into being; see M. Cherif Bassiouni, An Appraisal of the Growth and Developing Trends of International Criminal Law, in INTERNATIONAL CRIMINAL LAW AND PROCEDURE, John E.D. Dugard and Christine Van den Wyngaert (eds.), Aldershot: Brookfield, VT (1996), at 79 and 95. 12 The Nuremberg Tribunal was established by the allied Governments of France, the United Kingdom, the United States and the Soviet Union pursuant to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement); 82 U.N.T.S. 279, entered into force 8 August 1945. See also 1 Nuremberg Trial Proceedings, Charter of the International Military Tribunal at the Yale Website

8

part i

International Military Tribunal for the Far East in Tokyo (hereinafter the “Tokyo Tribunal”).13 The United Nations has considered the establishment of an international criminal jurisdiction as of 1948.14 At the beginning of the 1950’s, draft statutes were developed but the onset of the Cold War prevented these endeavours to materialise.15 Efforts within the United Nations on this subject were interrupted in 1956 due to the lack of agreement on the definition of aggression.16 Endeavours within the United Nations continued in closely related fields such as the preparation by the International Law Commission (ILC) of the Draft Code of Crimes against Peace and Security of Mankind, however the catalyst for the prompt establishment of an international criminal court was sadly provided by the atrocities committed in the former Yugoslavia and in Rwanda.17

Although the Nuremberg Charter was later adhered to by a further nineteen states, only the four original members appointed Judges and Prosecutors. 13 The Charter of the Tribunal (hereinafter the “Tokyo Charter”) was not based on a treaty but on a proclamation issued on 19 January 1946 by the Supreme Commander of the Allied Powers, General Douglas MacArthur; International Military Tribunal for the Far East, Established at Tokyo, 19 Jan. 1946, U.S. Dep’t of State Pub. No. 2675, T.I.A.S. No. 1589. The Tribunal was created by the Tokyo Charter. See also Charter of the Military Tribunal for the Far East . 14 At the request of the General Assembly, the International Law Commission studied the feasibility of establishing an international criminal court to try people found guilty of genocide. This was carried out in the wake of the enactment of the Convention on the Prevention and Punishment of the Crime of Genocide. 15 See M. Cherif Bassiouni, Observations Concerning the 1997–98 Preparatory Committee’s Work, 13 NOUVELLES ÉTUDES PÉNALES (1997), at 5. 16 Otto Triffterer, DOGMATISCHE UNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN VÖLKERSTRAFRECHTS SEIT NÜRNBERG (1966), 15 et seq. See also Benjamin B. Ferencz, The Crime of Aggression, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS, COMMENTARY, Gabrielle Kirk McDonald & Olivia Swaak-Goldman (eds.), Vol. 1, Kluwer Law International (2000), at 52 (hereinafter “SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW”). A definition of aggression was adopted by the General Assembly on 14 Dec. 1974; G.A. Res. 3314 (XXIX). 17 In 1993, the Security Council established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia (hereinafter the “ICTY” or the “Tribunal for the former Yugoslavia”); S.C. Res. 827, 25 May 1993. In 1994, the Security Council established the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda (hereinafter the “ICTR” or the “Tribunal for Rwanda”); S.C. Res. 955, 8 Nov. 1994.

CHAPTER I

THE NUREMBERG AND TOKYO PRECEDENTS

When establishing the International Criminal Tribunal for the Former Yugoslavia in 1993,18 from a proceedings perspective, the only reference for the Security Council were the Nuremberg and Tokyo proceedings. Except for the Pre-Trial Chamber, the institutions and phases of the trial provided in the Rome Statute, rely upon those of the Tribunal for the Former Yugoslavia. Despite the fundamental difference between the judicial character of the ICC19 and the post World War II Tribunals, certain features of the Nuremberg and Tokyo trial proceedings can still be found in the Rome Statute. All of these trials, past, present and those envisaged by the Rome Statute, are bench trials where the judges try the facts and the law.20 The Nuremberg and Tokyo Tribunals had jurisdiction over three categories of offences: crimes against peace, war crimes and crimes against humanity.21 Obedience to superior orders was no defence and could not be considered by the Nuremberg Tribunal in mitigation of punishment, but could be considered by the Tokyo Tribunal as a mitigating factor.22

1. Nature and Judicial Standards of the Tribunals The Nuremberg and Tokyo Tribunals were military tribunals differing in several aspects from civil justice systems. A military tribunal may be composed of or include military personnel and may operate on less stringent

18

See below Chapter II. The essential difference lies in the military character of the post-world war II Tribunals. The International Criminal Court, together with the Yugoslavia and Rwanda Tribunals are criminal justice systems. The term “Tribunal” in Nuremberg and Tokyo, for Yugoslavia and for Rwanda denotes their ad hoc character whereas the ICC is a permanent institution. The international character is a common feature of the four Tribunals and of the Court. 20 See Richard May and Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha, 37 Columbia Journal of Transnational Law (1999 # 3), at 728 (hereinafter “Trends in International Criminal Evidence”). 21 Nuremberg Charter, Article 7 and 8; Tokyo Charter, Article 6. 22 The jurisdiction of the Tribunals established after the Nuremberg and Tokyo as well as the jurisdiction of the ICC does not include crimes against peace but it does cover the crime of genocide, crimes against humanity and war crimes. 19

10

chapter i

requirements of the Rule of Law. To assess the judicial standards of the Nuremberg and Tokyo Tribunals by comparing them with the courts of advanced nations in peacetime would be unfair. It is “against the background of the minimum standards expected to be observed by civilized belligerents under the laws of war”23 at the time the trials were held, that they should be judged. The minimum standards were that the identity of the accused be established in relation with the person alleged to have committed the crime, and that some evidence be presented to the tribunal. Under international customary law, belligerents decided on the penalty they deemed appropriate for war criminals, and the death penalty was considered compatible with the minimum standards of civilization. The judicial standards applied by the Nuremberg and Tokyo Tribunals were certainly above the minimum standards applicable at that time.

2. The Proceedings at the Nuremberg Tribunal Relating to the proceedings of the trials, Chief American Prosecutor, Justice Robert H. Jackson, commented that the four major allied powers “agreed in principle that no country reasonably could insist that an international trial should be conducted under its own system and that we must borrow from all and devise an amalgamated procedure that would be workable, expeditious and fair”.24

Nevertheless, the rules of procedure and evidence of the Nuremberg and Tokyo Tribunals were drafted by American lawyers,25 and relied heavily on American Prosecutor’s and trial process rules.26 Yet these drafts underwent modifications and additions; the final draft borrowed essentially from the common law and much less from the civil law system. In accordance with the “military” nature of the Nuremberg and Tokyo Tribunals, the trials were to be confined to expeditious hearing of the issues raised by the charges, to prevent unreasonable delay, to rule out irrelevant issues 23

Georg Schwarzenberger, INTERNATIONAL LAW AS APPLIED, above note 11, at

471. 24

Robert H. Jackson, Nuremberg in Retrospect, 27 Can. B. Rev. (1949), at 766. Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-War II War Crime Trials: Did They Provide an Outline for International Legal Procedure, 37 Columbia Journal of Transnational Law (1999), at 852. (hereinafter “The Procedural and Evidentiary Rules of the Post-War II War Crime Trials”). The Tokyo Tribunal’s evidentiary powers were a synthesis of the rules contained in the Nuremberg Charter and those provided by the Royal Warrant issued for the trial of war criminals by the United Kingdom. Ibid., at 866. 26 Jonathan Turley, Symposium on Trials of the Century: Transformative Justice and the Ethos of Nuremberg, 33 Loyola of Los Angeles Law Review (2000), at 659 (hereinafter “Symposium on Trials of the Century”). 25

the nuremberg and tokyo precedents

11

and statements, and to deal summarily with any contumacy by the accused or their counsels.27 Under the Nuremberg Charter, trials in absentia were permitted.28 Beyond the ‘just and prompt’ trial to which the defendants where entitled under Article 1 of the Nuremberg Charter, Article 16 on “Fair Trial for Defendants”, contained a number of minimum guarantees: at a reasonable time before the trial, the defendant was entitled to receive a copy of the indictment including full particulars specifying the charges against him, together with all the documents submitted in a language he understood.29 During any preliminary examination or trial, the defendant had the right to give any explanation concerning the charges made against him; the proceedings before the tribunal were to be conducted or translated into a language the defendant understood; he had the right to conduct his own defence or to be assisted or to have assistance of counsel, to present evidence and to cross-examine any witness called by the Prosecution.30 Article 16 of the Nuremberg Charter on the content of the indictment, is an example of the combination of elements of the adversarial system and of the inquisitorial system.31 The merging of elements of the two systems in the proceedings of both the Nuremberg and Tokyo Tribunals, is a feature that can be found in the Statute of both Criminal Tribunals and of the ICC. The Nuremberg Tribunal operated on the basis of eleven rules of procedure and evidence.32 The proceedings at the Nuremberg Tribunal were

27

Nuremberg Charter, Article 18; Tokyo Charter, Article 12. Nuremberg Charter, Article 12. 29 According to Rule 2 of the Rules of Procedure of the Nuremberg Tribunal, a copy of the indictment, of any document lodged with it as well as a copy of the Nuremberg Charter were to be notified to the defendant 30 days before trial. Amendments or additions to the indictment submitted by the Chief Prosecutor to the Tribunal were to be furnished in a language that the defendant understood (Rule 3 of the Rules of Procedure). For the text of the Rules of Procedure of the Nuremberg Tribunal, see 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, Nuremberg, November 14, 1945–October 1, 1946, 1947, at 19–23 (hereinafter 1 TRIAL OF THE MAJOR WAR CRIMINALS). See also Uniform Rules of Procedure, Military Tribunals, Nuremberg, revised to 8 January 1948 (hereinafter the “Rules of the Nuremberg Tribunal”). 30 Nuremberg Charter, Article 16. Under Rule 2 (d) of the Rules of Procedure; the Nuremberg Tribunal was to designate counsel for any defendant who did not apply for particular counsel. 31 If the requirements of the Nuremberg Charter concerning the indictment are familiar to the attorney of the civil law system, they are puzzling for the attorney practising in an Anglo-American system where the indictment is limited to a summary of the facts alleged, and the evidence is postponed to the trial. Despite this, and with some exceptions, the course of the proceedings at the Nuremberg Tribunal was much closer to the Anglo-American system. The calling of evidence followed the adversarial model as each party called its own. 32 The Chief Prosecutors were to draft and recommend the Rules of Procedure to the Tribunal which was empowered to approve or reject the recommended rules. According to Rule 11, the Nuremberg Tribunal could, in the interest of a fair and expeditious trial, 28

12

chapter i

essentially the following: after the indictment was read, the Tribunal was to ask each defendant whether he pleaded “guilty” or “not guilty”. The Prosecution made the opening statement, the Tribunal was then to ask the Prosecution and the defence what evidence, if any, they wished to submit to the Tribunal and the Tribunal ruled on the admissibility of the evidence submitted. The witnesses for the Prosecution and defence were to be examined, and depending on the Tribunal’s rulings on admissibility, either side was to call rebutting evidence. Questions could be put by the Tribunal at any time to any witness and defendant. The Prosecution and the defence were authorised to question and cross-examine any witness and any defendant who gave testimony. Thereafter, the defence and the Prosecution addressed the Tribunal and each of the defendants was allowed to make a statement. Upon deliberation, the Tribunal delivered the judgement and pronounced the sentence.33 From the opening to the closing statements, though significantly supplemented and refined, the same basic phases established for the Nuremberg trials can be found in the ICC trials. The Nuremberg Charter did not provide for pre-trial proceedings as such nor for post-trial proceedings. There was no requirement for early disclosure to the defence by the Prosecution and initial access to the Prosecution’s archives of evidence was not allowed.34 Evidentiary requirements were simplified, and the Nuremberg Charter explicitly provided that the Tribunal was not to be bound by technical rules of evidence and was to admit any evidence which it deemed to have probative value.35 On the basis of this provision, ex parte affidavits introduced by the Prosecutors at trial were allowed by the Nuremberg Tribunal.36 Hearsay evidence, which is usually inadmissible in common law systems, was admitted both in oral evidence as well as in the form of affidavit.37 Although not explicitly stated in the Charter or Rules, guilt was determined upon proof of the crime charged beyond a reasonable doubt. This standard was applied throughout the

depart from, amend or add to these Rules. The same powers were conferred upon the Tokyo Tribunal by Article 9 of Rules of Procedure and Evidence of the International Military Tribunal for the Far East. 33 Nuremberg Charter, Article 24. For the similar provision on trial proceedings before the Tokyo Tribunal, see Article 15 of the Tokyo Charter. The Nuremberg Charter’s provisions were more favourable to the defence than those of the Tokyo Charter. 34 Telford Taylor, THE ANATOMY OF THE NUREMBERG TRIALS, A PERSONAL MEMOIR, New York: Alfred E. Knopf (1992), at 627 (hereinafter “THE ANATOMY OF THE NUREMBERG TRIALS”). 35 Nuremberg Charter, Article 19. 36 Telford Taylor, THE ANATOMY OF THE NUREMBERG TRIALS, above note 34, at 241. 37 See 1 TRIAL OF THE MAJOR WAR CRIMINALS, above note 29, at 310 and 327. See also Richard May & Marieke Wierda, Trends in International Criminal Evidence, above note 20, at 746.

the nuremberg and tokyo precedents

13

Nuremberg trials.38 Under the Nuremberg Charter, the death penalty could be imposed,39 and the Nuremberg proceedings had no provisions for an appellate chamber. Neither the Tribunal, nor its judges could be challenged.40 An affirmative vote of at least three out of the four members of the Tribunal was required for a conviction and a sentence. Of the twentyfour defendants initially charged, twelve were sentenced to death (one in absentia), one was found unfit to stand trial, three were condemned to life imprisonment, four received prison terms, one committed suicide after being charged, and three were acquitted.41 Despite the legal deficiencies of the Tribunal, from a procedural perspective the Nuremberg trials, unlike the Tokyo trials, were seen as generally fair. In Nuremberg, procedural safeguards accorded to the accused were infinitely greater than those afforded in Tokyo. All the Nuremberg trials ended with the issuing of a detailed, reasoned judgements.

3. The Tokyo Trials: Fairness in Doubt The eleven members ( judges) of the Tokyo Tribunal were appointed by the Supreme Commander of the Allied Powers. Decisions were made by simple majority. The Prosecution consisted of one Chief Counsel and ten associate counsels, rather than several prosecutors of equal rank. Article 5 of the Tokyo Charter defines crimes against peace, conventional war crimes and crimes against humanity, definitions which are largely based upon, but not identical to those in the Nuremberg Charter.42 The Tokyo Tribunal’s jurisdiction however, was limited to those persons charged with offences which included crimes against peace. This explains why the twenty-eight defendants of what was to be the first trial, consisted only of those who could be charged with the commission of crimes against peace. The guarantees to ensure a fair trial for the accused provided by the Tokyo Charter,43 are 38

Ibid., at 754. Nuremberg Charter, Article 27: “The Tribunal shall have the right to impose upon a defendant on conviction, death or such other punishment as shall be determined by it to be just”. 40 The composition of the Nuremberg Tribunal was problematic when seen in the perspective of the principle of impartiality. The four Judges and the four Prosecutors were all nationals of victorious powers prosecuting and judging only German defendants. In view of the post World War II context, the participation of a German judge was not a realistic option. Judges from neutral countries could have been included but expediency prevailed. 41 See 1 TRIAL OF THE MAJOR WAR CRIMINALS, above note 29, at 171 et seq. 42 Conventional war crimes were not defined in the Tokyo Charter. 43 In the Tokyo Charter the defendant was referred to as “the accused” even before he received a copy of the indictment, see Tokyo Charter, Article 9 (a). He was entitled to receive the indictment “no less than 14 days before the Tribunal begins to take evidence”, 39

14

chapter i

to some extent similar to those in the Nuremberg Charter and as in Nuremberg, the accused could apply to the Tribunal for aid in obtaining production of evidence.44 The Tokyo Tribunal was authorised to disapprove at any time any counsel selected by the accused, and in the absence of a request, appoint counsel for the accused if it deemed such an appointment necessary to ensure a fair trial.45 The Rules of Procedure of the Tokyo Tribunal were brief: nine rules in all. Both the Nuremberg and Tokyo Tribunals could in case of contumacy exclude the accused or his counsel from part of the proceedings or from all further proceedings.46 As with Nuremberg, the Tokyo Tribunal was not bound by technical rules of evidence; specific as well as secondary evidence was admissible. In Tokyo, rulings on the admissibility of evidence were inconsistent and favoured the Prosecution, which was permitted to use a document not yet in evidence for cross examination, after the defence had twice been prohibited from doing so.47 The intention was that as much evidence as possible would be admitted against the defendant,48 but evidence that could favour the defence was withheld from the Tribunal by the Prosecution.49 The request of the defence to have access to the files of the Prosecution which might have contained favourable evidence for their case was sternly objected by the Prosecution. Such requests were related to as “fishing expeditions”. The Tribunal shared the position of the Prosecution.50 At the Nuremberg and at the Tokyo trials, the defence Rule 1 of the Rules of Procedure of the Tokyo Tribunal. For the text of the Rules, see Rules of Procedure of the International Military Tribunal for the Far East, 25 April 1946 (hereinafter the “Rules of the Tokyo Tribunal”). 44 Article 9 (e) of the Tokyo Charter, Rule 4 (a) of the Rules of the Nuremberg Tribunal. 45 Article 9 (c) of the Tokyo Charter. All of the defendants at the Tokyo Trial had Japanese lawyers. “But the President and six other judges were accustomed to Anglo Saxon trial procedure; hence the proceedings gradually assumed an Anglo-Saxon trial procedure. When the need was felt for lawyers who were more familiar with the mode of procedure followed, the Court ordained that the defendants ought to have a non-Japanese defence lawyers optionally at their disposal”; Bernard. V. Röling & C.F. Rüter (eds.), 1 THE TOKYO JUDGEMENT, THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (I.M.T.F.E.) (1977), at XI–XII (hereinafter “1 THE TOKYO JUDGEMENT”). Such aid was accepted by all except one defendant but proceedings were complicated by the two kinds of lawyers. Their aims were different: the former were concerned to keep the honour of Japan and the Emperor intact, the “American advocates had a greater eye to the welfare of their clients”; Ibid. 46 Article 18 of the Nuremberg Charter, Article 12 of the Tokyo Charter. 47 Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-War II War Crime Trials, above note 25, at 870. 48 Ibid., at 867. 49 Bernard V. Röling and Antonio Cassese, THE TOKYO TRIAL AND BEYOND: REFLECTIONS OF A PEACEMONGER, Politi Press (1993), at 60 (hereinafter “THE TOKYO TRIAL AND BEYOND”). 50 Ibid., at 51. Judge Röling considered this request quite correct and proper as it might have contributed to the real truth. Ibid.

the nuremberg and tokyo precedents

15

struggled to integrate mitigating elements into their defence by means of the “tu quoque” argument. The defence tried to show that the charged crimes were in some instances analogous to acts such as the atrocities committed by the Russians, the fire bombing of cities in Germany by the Americans, or the failure to pick up survivors in the Pacific by American submarines.51 In Tokyo, if a defence counsel tried to raise the “tu quoque” argument in order to show that the Allies had committed the same kind of crimes as the Japanese, he was stopped by the Court.52 Serious doubt was cast on the fairness of the Tokyo trials even by judges of the Tribunal.53 The defence argued that the verdict was not based on evidence.54 Under the Tokyo Charter, once the sentence was pronounced, the Supreme Commander of the allied Powers was entitled to reduce or alter the sentence but not to increase its severity. Sentences of Tokyo Tribunal included the death penalty.55 Of the twenty-eight defendants, two died in the course of the trial, one was declared unfit to stand trial, seven were sentenced to death, sixteen to life imprisonment, one to twenty years imprisonment and one to seven years.56

4. Appraisal The Nuremberg and Tokyo Trials were considered ‘victor’s justice’; Prosecutors often received instructions from their governments, in some cases

51

Jonathan Turley, Symposium on Trials of the Century, above note 26, at 659. Bernard V. Röling and Antonio Cassese, THE TOKYO TRIAL AND BEYOND, above note 49, at 60. 53 In his Dissenting Judgement, the French Judge Bernard, member of the Tokyo Tribunal wrote: “Though I am of the opinion that the Charter permitted granting the Accused guarantees sufficient for their defence, I think that actually they were not granted to them. Essential principles, violation of which would result in most civilised nations in the nullity of the entire procedure, and the right to dismiss the case against the Accused, were not respected . . . A verdict reached by a Tribunal after a defective procedure cannot be a valid one”; Bernard. V. Röling and C.F. Rüter, 1 THE TOKYO JUDGEMENT, above note 45, at 494–495. The Dutch Judge Röling differed with the majority opinion “relative to the law and in so far as the evaluation of the evidence was concerned”; Ibid., at XVI. For one of the seven defendants sentenced to death, Judge Röling held that he had not been proven guilty on any charge. Bernard V. Röling and Antonio Cassese, THE TOKYO TRIAL AND BEYOND, above note 49, at 5. In the recommendation concluding his 522 page Judgement, the Indian judge Pal held that each and everyone of the accused must be found not guilty, Bernard V. Röling & C.F. Rüter, 2 THE TOKYO JUDGEMENT, above note 45, at 1035. 54 Defence Appeal to General MacArthur in Richard H. Minear, VICTOR’S JUSTICE, THE TOKYO WAR CRIMES TRIAL (1971), at 204–5. 55 Article 5 of the Nuremberg Charter; Article X of the Tokyo Charter. 56 Bernard V. Röling & C.F. Rüter, 1 THE TOKYO JUDGEMENT, above note 45, at XI and 464–466. 52

16

chapter i

and in contradiction with the legal principle nullum crimen sine lege, ex post facto law was applied by the Nuremberg and Tokyo Tribunals, since “Crimes against peace, crimes against humanity, conspiracies to commit any type of war crime, and the declaration of an organisation to be criminal, were innovations introduced into international law by the Charters of Nuremberg and Tokyo” (footnotes omitted).57

The very flexible rules of procedure and evidence governing the Nuremberg and Tokyo trials, had implications on fairness particularly in the field of evidentiary rulings.58 The approaches taken to evidentiary and procedural matters at the post-World War II trials would, in view of the development of international human rights law, be unacceptable at present. But trials are held and must be judged in the light of the principles and in the context of their time. Neither the Nuremberg nor the Tokyo trials were perfect justice; there were legal deficiencies in Nuremberg and even more in Tokyo. However, at a time where the rights of the defendant under international law were still in the early stages of development, they were not denied a defence. They were guaranteed advantages such as legal resources that would have been denied in most states of the world in the 1940’s.59 The Nuremberg and Tokyo trials broke new ground in imposing individual responsibility, and despite the substantial and procedural shortcomings, their contribution to international criminal law is undeniable,60 be it within the United Nations or in treaty practice.

57 Georg Schwarzenberger INTERNATIONAL LAW AS APPLIED, above note 11, at 519. See also, 1 Nuremberg Proceedings, Motion Adopted by all Defence Counsel, 19 Nov. 1945 available at http://elsinore.cis.yale.edu/lawweb/ayalon/imt/proc/v1-3.htm. 58 Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-War II War Crime Trials, above note 25, at 870. 59 Jonathan Turley, Symposium on Trials of the Century, above note 26, at 677–678. 60 Ibid., at 525–534. Roger S. Clark, Nuremberg and Tokyo in Contemporary Perspective, in THE LAW OF WAR CRIMES, above note 11, at 184–187.

CHAPTER II

THE PROCEEDINGS AT THE ICTY AND ICTR

Substantively, there are many aspects which the International Criminal Court has in common with the existing ad hoc Tribunals, in particular the International Criminal Tribunal for the former Yugoslavia. Whilst the crime of aggression continues to remain undefined and not yet part of the substantive jurisdiction of the ICC, there is a striking similarity between the jurisdiction rationae materiae of the ICTY and of the ICC, although they are not identical. The structure of the Tribunals, several procedural principles established for the ICTY and the ICTR, the phases of the proceedings, as well as several evidentiary matters, have been carried over to the ICC. The ad hoc Tribunals operate in a period where the rights of the accused have to be taken into account, where norms of fair trial apply to a very different extent from those that were applicable at the time of the Nuremberg and Tokyo trials and “[e]very aspect of the Tribunal’s work sets precedents which will be examined closely . . . by the future permanent international criminal court”.61 The findings of Amnesty International concerning the International Criminal Tribunal for Rwanda are valid to the same extent, if not even more so, for the International Criminal Tribunal for the Former Yugoslavia. It should not be overlooked that the ICTY was the first one established to prosecute and try persons responsible for serious violations of international humanitarian law and it has faced a whole set of applicable norms and principles with which no previous international tribunal has had to deal. In the domain of international criminal procedural law, the ICTY is the first international Tribunal that has had to give concrete meaning to legal standards of fairness in international criminal trials and to ensure the respect of these standards regarding the rights of the accused.

61 Amnesty International, International Criminal Tribunal for Rwanda, Trials and Tribulations, Summary of Report, IOR 40/03/98, April 1998, at 2. On the path from various Tribunals to the ICC, see Benjamin B. Ferencz, Von Nürnberg nach Rom: Auf dem Weg zu einem Internationalen Strafgerichtshof, Humanitäres Völkerrecht (Heft 2/1998), at 80–90; Flavia Lattanzi & Elena Sciso eds., DAI TRIBUNALI PENALI INTARNAZIONALI AD HOC A UNA CORTE PARMANANTE, Napoli: Editoriale Scientifica, 1996; see also Ahlbrecht Heiko, GESCHICHTE DER VÖLKERRECHTLICHEN STRAFGERICHTSBARKEIT IM 20. JAHRHUNDERT: UNTER BESONDERER BERÜCKSICHTUNG DER VÖLKERRECHTLICHEN STRAFTATBESTÄNDE UND DER BEMÜHUNGEN UM EINEN STÄNDIGEN INTERNATIONALEN STRAFGERICHTSHOF, Baden-Baden: Nomos (1999).

18

chapter ii

Both Tribunals, the ICTY in the Hague and the ICTR in Arusha, were established to do justice by prosecuting and trying persons responsible for serious violations of international humanitarian law. The ICTY was also the first international non-military tribunal ever established, there are no victors, and it was not created by a party to the conflict but by the United Nations Security Council representing the international community of States and to serve as a means of enforcing basic humanitarian standards. The same is true for the ICTR. Compared to the International Criminal Court, the powers of the Tribunals are more extensive and not only due to the primacy of the Tribunals over national courts. Their jurisdiction ratione loci however, is limited whereas that of the ICC is not. Though the work of the Tribunals, the ICTY more so than the ICTR, were and continue to be the object of professional and academic research on substantive issues, rarely were the Tribunals analyzed in a proceedings and defence perspective.62 The ICTY has jurisdiction to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991,63 without distinction whether the person is a Serb, a Croat or a Moslem. 62 See Virginia Morris, Michael P. Sharf, AN INSIDER’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, 2 Volumes, Transnational Publishers (1994) (hereinafter “INSIDER’S GUIDE TO THE ICTY); SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16; JUDICIAL REPORTS, INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1994–1997) Kluwer Law International; John R.W.D. Jones, THE PRACTICE OF THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, Transnational Publishers (1998); Virginia Morris, Michael P. Sharf, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, 2 Volumes, Transnational Publishers (1998); WAR CRIMES AND WAR CRIMES TRIBUNALS: PAST, PRESENT AND FUTURE, 3 The Hofstra Law and Policy Symposium (1999) (hereinafter “WAR CRIMES AND WAR CRIMES TRIBUNALS”). 63 Preamble, Statute of the International Tribunal for the Former Yugoslavia adopted pursuant to Security Council Resolution 827 of 25 May, 1993; reprinted in 32 I.L.M. (1993), at 1192 (hereinafter the “Statute of the ICTY”). For the territorial and temporal jurisdiction, see Article 8 of the Statute. The competence ratione materiae of the ICTY is provided by Articles 2, 3, 4, and 5 of the Statute as follows: “Article 2—Grave Breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f ) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages. Article 3—Violations of the Laws or Customs of War

the proceedings at the icty and ictr

19

The ICTR Statute provides for jurisdiction to prosecute persons responsible for genocide and other serious violations of international law committed in the territory of Rwanda or in the territory of neighbouring states between 1 January 1994 and 31 December 1994,64 without distinction whether the person or the citizen be a Hutu or a Tutsi member. The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. Article 4—Genocide 1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article. 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. 3. The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide. Article 5—Crimes Against Humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f ) torture; (g) rape; (h) persecutions on political, racial and religious grounds; other inhumane acts”. 64 Preamble to the Statute of the International Tribunal for Rwanda, Security Council Resolution 955 (1994) Annex, 8 November, 1994; reprinted in 33 I.L.M. (1994), at 1598 (hereinafter the “Statute of the ICTR”). For the competence ratione loci and ratione temporis, see Article 7 of the Statute. The competence ratione materiae of the ICTR is provided by Articles 2, 3, and 4 of the Statute as follows: “Article 2—Genocide 1. The International Tribunal for Rwanda shall have the power to prosecute persons

20

chapter ii

All of the judges of the Tribunal for the Former Yugoslavia as well as the judges of the Tribunal for Rwanda must be independent judges. The Prosecutor acts independently in the performance of his functions and not upon instructions from any government or other source. In his commentary on the ICTY statute, the UN Secretary General emphasized that the principle nullum crimen sine lege “requires that the international tribunal should committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. 3. The following acts shall be punishable: Genocide; (a) Conspiracy to commit genocide; (b) Direct and public incitement to commit genocide; (c) Attempt to commit genocide; (d) Complicity in genocide. Article 3—Crimes against Humanity The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f ) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts. Article 4—Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: (a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f ) Pillage; (g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; (h) Threats to commit any of the foregoing acts”.

the proceedings at the icty and ictr

21

apply rules of international humanitarian law which are beyond any doubt part of customary international law so that the problem of adherence of some but not all states to specific conventions does not arise”.65 The choice of the law to be applied by the ICTR is more expansive than the one underlying the Statute of the ICTY since international instruments were included in the subject-matter jurisdiction of the ICTR, regardless of whether they were considered part of customary international law.66 The Statutes of the ad hoc Tribunals and the relevant conventions on international humanitarian law to be applied by these Tribunals delineate which acts constitute war crimes, however, they do not contain any provision on the elements of crimes which could assist the Tribunal in the interpretation and application of the crimes within its jurisdiction.67 This led to very broadly drafter indictments and at the beginnings of the Tribunals, it was for the prosecution’s ingenuity and to the Tribunal’s discretion to decide which article of the Statute was violated. The ICTY and the ICTR have had to elaborate the elements of crimes and apply them to the cases brought before it. Individual criminal responsibility for the crimes within the jurisdiction of the Tribunals is expressly provided.68 The official position of the accused person does not relieve him of criminal responsibility nor mitigate punishment.69 Under specific circumstances, a superior will be held criminally responsible for acts committed by his subordinate,70 and orders of a government or of a

65 Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 (1993) (hereinafter Report of the Secretary-General Pursuant to Resolution 808), Paragraph 34. In Paragraph 35 of the Report it is stated that “The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945” (footnotes omitted). 66 See paragraph 12 and footnotes of the Report of the Secretary General Pursuant to Paragraph 5 of the Security Council Resolution 955 (1994), U.N. Doc. S/1994/924, 8 November 1994. 67 In the context of the ICC, the elements of crimes were adopted by the members of the Assembly of States Parties; see above note 5. 68 Pursuant to Article 7 (1) of the ICTY Statute. “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime”. Article 6 (1) of the ICTR Statute is identical with the exception that the crimes referred to are in Articles 2 to 4. 69 Article 7 (2) of the ICTY Statute; Article 6 (2) of the ICTR Statute. 70 A superior will be held criminally responsible for acts committed by his subordinate “if he knew or had reasons to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof ”. Article 7 (3) of the ICTY Statute; Article 6 (3) of the ICTR Statute.

22

chapter ii

superior do not relieve the accused person of criminal responsibility.71 The Tribunal may however consider such orders in mitigation of punishment, if it determines that justice so requires.72 The Statutes of the ICTY and of the ICTR expressly state which defences are inadmissible,73 but they are silent on which factual or psychological element could constitute a defence.74 Some guidance can be found in the Rules of Procedure and Evidence75 but the decision is left to the Tribunals as to whether the alleged perpetrators of the crimes referred to in the Statutes may be relived of responsibility for their actions based on defences such as duress, coercion or mental incapacity.76

71 Article 7 (4) of the ICTY Statute; Article 6 (4) of the ICTR Statute. Article 33 of the ICC Statute permits a defence based on orders of a superior in specific circumstances unless the order was manifestly unlawful; see below at 76. 72 Under Article 7 (2) of the ICTY Statute (Article 6 (2) of the ICTR Statute): “The official position of any accused person, whether as a Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment”. In the Milosevic case, it was submitted that the Tribunal lacked jurisdiction due to the accused’s status as former President of the Federal Republic of Yugoslavia. The Trial Chamber rejected this ground; Prosecutor v. S. Milosevic, ICTY Case No. IT-99-37-PT, Decision on Preliminary Motions, 8 November 2001. A brief explanation of the meaning of the letters and numbers of a case might be useful for those not familiar with the workings of the Tribunals. “IT” stands for International Tribunal; the two digits 94 means that an indictment was issued against Tadic in 1994, the further digit indicates, to some extent, the sequence with which the indictment was issued in relation to other indictments. In cases of joint indictments, two or more accused may have the same case number. “T” stands for Trial. Instead of ‘T’, there may be other capital letters such as “PT” (Pre-Trial), “A” (Appeal), “S” (Sentence), or “R” (Review). For information on the ICTY, a useful resource is the ICTY Web site . The Tribunal’s decisions, orders and judgements referred to hereinafter, may be found at that site under “ICTY Cases and Judgements”. The Statute as well as the Rules of Procedure and Evidence of the Tribunal and transcripts of hearings can be found at the same site. 73 Under Rule 96(ii)(a) of the Rules of Procedure and Evidence of the ICTY and of the ICTR, in cases of sexual assault, consent cannot be allowed as a defence if the victim was subjected to threats, violence, duress detention or psychological oppression. For the Rules of Procedure and Evidence of the ICTY (hereinafter the “Rules of the ICTY”), as adopted on 11 Feb. 1994 and as amended thereafter, see ICTY Website below note 98. 74 The grounds for excluding criminal responsibility are explicitly provided in Articles 31 and 32 of the Statute of the ICC. 75 Under Rule 67 on reciprocal disclosure of documents between the parties, “the defence shall notify the Prosecutor of its intent to offer . . . any special defence, including that of diminished or lack of mental responsibility . . .” (Rule 67(ii)(b) of the ICTY and of the ICTR. 76 In the Erdemovic case, the majority of the Appeals Chamber held that “duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving killing of innocent human beings”; Prosecutor v. Erdemovic, ICTY Case No. IT-96-2A, Judgement, 7 October 1997, para. 19 (hereinafter “Erdemovic Judgement II). See Yoram Dinstein, Defences, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 371. Albin Eser, Defences in War Crime Trials, in WAR CRIMES IN INTERNATIONAL LAW Yoram Dinstein & Mala Tabori (eds), Martinus Nijhoff Publishers (1996), at 251.

the proceedings at the icty and ictr

23

The Statute of the ICTY and the ICTR provides that the Tribunal shall have concurrent jurisdiction with national courts to prosecute persons for serious violations of international humanitarian law, but the Tribunals have primacy and may at any stage of the procedure request national courts to defer to the competence of the international Tribunal.77 There are important differences between the Yugoslavia and Rwanda Tribunals on the one hand and the Nuremberg and Tokyo Tribunals on the other. The Allied powers had absolute control over territories in Germany and Japan, and did consequently not depend on state co-operation, whereas the ICTY and ICTR depend primarily78 on state co-operation be it for investigations, the enforcement of arrest warrants, the summoning of witnesses, the transfer of suspects to the UN Detention Unit, as well as for the execution of the sentences rendered by the Tribunals. An innovative feature in international law is the fact that the Statutes of the Tribunals recognise that victims and witnesses have rights worthy of protection.79 However, the granting of protective measures such as anonymity of victims and witnesses, creates serious tensions when combined with the need to respect the rights of the accused to a fair trial. The balance tilted in favour of the Office of the Prosecutor and protective measures were granted on the most minimal showing of need, and often to the prejudice of the accused. To rebut the allegations of the Prosecution why protective measures were necessary would have required additional hearings which was seen unfavourably by the Trial Chambers. Serious problems exist at the stage starting with the issuance of arrest warrants where the solution to the difficulties faced by the Prosecution for the arrest of the suspect or the accused, might affect their human rights. From the initial appearance of the suspected or indicted person before the ICTY or the ICTR, both Tribunals’ statutory and subsidiary provisions governing the various phases of the proceedings go far beyond the due process protections provided by the Nuremberg and Tokyo Charter.

77 Article 9 Statute of the ICTY; Article 8 Statute of the ICTR. It should be noted that since 2004, a case may be referred by the Tribunal to another court even if indictment has been confirmed and the accused is already in the custody of the Tribunal. 78 Both Tribunals are assisted by investigators acting for the Office of the Prosecutor and by international bodies in the search for suspects and accused persons, which in the case of the ICTY have the power to arrest and transfer suspects or accused persons to the Detention Unit of the Tribunal. 79 Article 22 of the ICTY Statute and Article 21 of the ICTR Statute on Protection of Victims and Witnesses: “The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity”.

24

chapter ii 1. The Rules of Procedure and Evidence of the ICTY and the ICTR

According to the Tribunals’ Statutes: “The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters”.80

There was little precedent to rely on at the international level. The post World War II Tribunals operated with very few Rules for pre-trial and trial proceedings, and there were no appeal provisions as such.81 Although the Nuremberg and Tokyo trials were seen, to some extent, as precedents of trial systems, the rudimentary Rules of the Military Tribunals could not, half a century later, constitute the basis for the Rules of International Tribunals which are to uphold high standards of criminal justice and fairness. The Rules of Procedure and Evidence of the ICTY are a “tailor made”82 set of Rules, created in response to the unique needs of an international criminal jurisdiction. The difficulties underlying the drafting of the Rules were stressed by the ICTY Tribunal’s first President, Antonio Cassese: “Given the huge differences between our Tribunal and those of Nürnberg and Tokyo, we had to sail into uncharted waters . . . Often we had to create new procedures or set out our own definition of procedural concepts . . . This we did by drawing upon some basic principles underlying both the United Nations standards on human rights and the major legal civilizations of the world”.83

On this subject, the Former Prosecutor of the ICTY and ICTR stated that international rules cannot be created in a vacuum, “National systems must be drawn upon in order to seek appropriate Rules for international adjudication”.84 The Rules of Procedure and Evidence of the ICTY were adopted on 11 February 199485 and amended several times by the Plenary 80

Article 15 of the Statute of the ICTR. Article 14 of the Statute of the ICTR. The first Rules ever drafted and applied in international criminal appeals proceedings were those of the ICTY. 82 Statement by the President (of the ICTY) Made at a Briefing to Members of the Diplomatic Missions, Summary of the Rules of Procedure of the International Criminal Tribunal for the Former Yugoslavia, 11 February 1994, Yearbook of the International Criminal Tribunal for the Former Yugoslavia (1994), at 235 (hereinafter “ICTY Yearbook (1994).” 83 Address of Antonio Cassese, President of the International Criminal Tribunal for the Former Yugoslavia, to the General Assembly of the United Nations, 14 November 1994, ICTY Yearbook (1994), at 141. 84 Louise Arbour, The Development of a Coherent System of Rules of International Criminal Procedure and Evidence Before the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, in COMPARATIVE JUSTICE SYSTEMS, (Proceedings of the International Conference for the 25th Anniversary of the International Institute of Higher Studies in Criminal Sciences, Siracusa (Italy) 16–20 December, 1997), 17 Nouvelles Etudes Pénales (1998), at 374. 85 The Rules of Procedure and Evidence of the ICTY entered into force on 14 March, 1994. 81

the proceedings at the icty and ictr

25

of the Judges of the ICTY.86 Since these Rules constituted the first international procedure and evidentiary code ever adopted, “it was not possible to anticipate every eventuality which could arise during the criminal proceedings . . .”.87 These rules were developed and interpreted through and by the decisions of the Tribunals such as the pre-trial rights and obligations of the parties at trial,88 as well as, inter alia, a whole set of rules pertaining to the admission of evidence.89 The 125 Rules of Procedure and Evidence of the ICTY were adopted by the ICTR. They became the Rwanda Tribunals’ Rules of Procedure and Evidence,90 and were considered a reference for any existing and future courts,91 years before they served as a basis for the elaboration of the Rules of Procedure and Evidence of the International Criminal Court.

2. Investigation Under the Statutes and in the Rules of Procedure and Evidence of the ICTY and of the ICTR, the Prosecutor initiates the proceedings92 on the basis of evidence collected on his/her own initiative or on the basis of information obtained from any other source. The Prosecutor has extensive powers to conduct investigations and may summon and question suspects, 86

Pursuant to Rule 6 (D) of the ICTY: “An amendment shall enter into force seven days after the date of issue of an official Tribunal document containing the amendment, but shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case” Under Rule 6 (D) of the ICTR, an amendment enters into force immediately, “but shall not operate to prejudice the rights of the accused in any pending case”. 87 Third Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, para. 66, reprinted in ICTY Yearbook (1996), at 166. 88 See below Chapter III and IV. 89 See below Chaper IV.2. 90 According to Article 14 of the Statute of the ICTR, the Rules of Procedure and Evidence of the ICTY were to be adopted with the required modifications as the Rwanda Tribunal’s own Rules of Procedure and Evidence (hereinafter the Rules of the ICTR). During the first years of the existence of the ICTR, its Rules were substantially the same as those of the ICTY. The Rules of both Tribunals have been amended several times; the amendments adopted by each Tribunal are in some instances similar, sometimes they vary substantially. The Tribunals function in different contexts and in different territorial frameworks, therefore, some Rules adopted by one Tribunal are not necessarily adopted by the other. 91 Hervé Ascensio, The Rules of Procedure and Evidence of the ICTY, 9 Leiden Journal of International Law (1996), at 477. 92 In the context of the ICTY and the ICTR, only the Prosecutor may commence proceedings. No victim, government or international body or organization may set the judicial process in motion, but they all may submit information, complaints or reports to the Prosecutor.

26

chapter ii

victims and witnesses and record their statements, collect evidence and conduct on-site investigations.93 The Prosecutor is empowered to “undertake such other matters as may appear necessary for completing the investigation” and she/he may seek the assistance of any state authority concerned.94 Where a crime within the jurisdiction of the Tribunal was or is the subject of investigation or criminal proceeding in any State, the Prosecutor may request the State to forward to her/him all relevant information.95 Furthermore, the Prosecutor may apply to the Trial Chamber for the issuance of a formal request for the deferral of proceedings from the national court to the competence of the Tribunal.96 Under Rule 39(ii), the Prosecutor may take “special measures to provide for the safety of potential witnesses and informants”.97 Victims are not mentioned in this Rule. Often the principal witness against the perpetrator of a crime will be the victim and as such she/he is entitled to protection from the investigatory stage as victims may be summoned for questioning 93 Article 18 (2) Statute of the ICTY, Article 17 (2), Statute of the ICTR, Rule 39(i) of both Tribunals. 94 Rule 39(ii) and 39(iii) of both Tribunals. The obligation of states to co-operate with and provide judicial assistance to the Tribunal is stipulated in Article 29 of the ICTY Statute and Article 28 of the ICTR Statute. States are to co-operate in the investigation and Prosecution, comply with requests for assistance or orders issued by the Tribunal to identify and locate persons, to take evidence, to arrest, detain or surrender persons to the Tribunal. 95 Rule 8 of both Tribunals. 96 Compared to the ICC, the powers of the Tribunals are more extensive. The Statutes of the ICTY and of the ICTR (Article 9 and 8 respectively), provide for concurrent jurisdiction with primacy of the International Tribunals over national Courts. Under Rule 9 of the ICTY (the criteria for deferral in Rule 9 of the ICTR vary substantially), the Prosecutor may request deferral if it appears to him that in the investigation or in the criminal proceedings being held by the national court: “(i) the act being investigated or which is subject of those proceedings is characterized as an ordinary crime; (ii) there is a lack of impartiality or independence, or investigations of proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted; (iii) what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or Prosecution before the Tribunal. . . .”. However, upon application by the Prosecutor, the Trial Chamber may rule that the authorities of the State should exercise jurisdiction over the accused. Under Rule 11bis (of the ICTY only), an indictment issued by the Prosecutor may be suspended if it is shown that the State is effectively prosecuting the accused person. Should the accused already be in the custody of the Tribunal, he may be transferred to the authorities of the State by order of the Trial Chamber. This order is not final as it may be rescinded any time before the conviction or the acquittal of the accused and a formal request may be issued to the State to defer the proceedings to the Tribunal. 97 In accordance with Rule 34 (A) of both Tribunals, a Victim and Witness Unit has been set up to recommend protective measures. The Statutes of the ICTY and of the ICTR (Article 22 and Article 21 respectively) form the legal basis for the protection granted to victims and witnesses under the rules of procedure and evidence.

the proceedings at the icty and ictr

27

by the Prosecutor. It is clear that measures to protect the victims may be requested at the preliminary proceedings,98 however, there is no provision concerning the victims’ procedural rights. They are not entitled to be informed should the Prosecutor decide not to investigate or prosecute a case; victims are not entitled to a separate counsel to protect their interests. Under the Rome Statute victims may be represented by counsel of their own choice. Under Article 18 (3) of the Statute of the ICTY (Article 17 (3) of the Statute of the ICTR), if questioned the suspect has the right to be assisted by counsel of his own choice; in the case of indigence, he is entitled to free legal assistance. In instances where the suspect is questioned by the Prosecutor, Rule 42 and 43 common to both Tribunals, supplement the rights of the suspect during investigation that are provided for by the Statute. There is no definition of “suspect” in the Statute of the ad hoc Tribunals and it is therefore difficult to know when exactly a person becomes a “suspect” and whether the investigation of the Prosecutor was appropriately conducted during every one of its phases. Moreover, there is no guarantee that these rights will be upheld when the suspect is questioned by the authorities of a State or by other entities. In principle, where a suspect is questioned by the Prosecutor, he must be informed in a language he speaks and understands of his right to have counsel of his own choice, and if he does not have sufficient means to pay for it, to have legal assistance assigned to him.99 If the suspect does not understand or speak the language used for questioning, he is entitled to have free assistance of an interpreter.100 Before questioning by the Prosecutor begins, the suspect must be informed of his right to remain silent and be

98 Under Rules 69 and 75, the Prosecutor may request special protective measures for victims and witnesses before or after the commencement of the trial. According to Rule 69 (A), the Prosecutor may apply for an order of “non-disclosure of the identity of the victim or the witness who may be in danger or at risk until such person is brought under the protection of the Tribunal”. However, it should be noted that from a certain stage of the proceedings, the anonymity of witnesses does affect the rights of the accused. According to Judge Stephen: “The philosophy which imbues the Statute and the Rules of the Tribunal appears clear: the victims and witnesses merit protection, even from the accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media”. Separate Opinion of Judge Stephen in Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995. 99 Rule 42 (A)(i) of both Tribunals. 100 Rule 42 (A)(ii) of both Tribunals.

28

chapter ii

cautioned that his statements will be recorded and may be used in evidence.101 The suspect may only be heard in the presence of his defence counsel unless he voluntarily waives that right.102 Pursuant to Article 43 of the Statute of both Tribunals, the questioning of a suspect by the Prosecutor must be recorded on audio- or video-tape and the suspect must be given an opportunity to clarify and add anything he wishes.103 He is also entitled to receive a copy of the transcript of the tape.104 The provisions on the interrogation of the suspect are generally fair, if the interrogation takes place by the Prosecutor in or outside the host country of the Tribunals.105 It should be noted however, that even if the suspect is interrogated by the Prosecutor, none of the basic documents of the Tribunals mention that he has the right to be informed of the nature of the suspicions against him. In the context of the Tribunals, it is only upon his arrest as a suspect or accused that this right applies. During the investigation and even before formal charges are submitted, the Prosecutor may, due to the urgency of the situation at hand, request any State to arrest a suspect provisionally, to seize physical evidence, and to take all necessary measures to protect victims or witnesses.106 On the basis of provisional charges, the Prosecutor may file a request to a judge of the Tribunal for an order of transfer and provisional detention of a suspect in the Tribunal’s Detention Unit.107 Several conditions have to be met for the judge to issue such an order. The Prosecution has to present reliable and consistent material “which tends to show that the suspect may have

101

Rule 42 (A)(iii) of both Tribunals. Rule 42 (B) of both Tribunals. 103 Rule 43 (iii) of both Tribunals. 104 Rule 43 (iv) of both Tribunals. 105 See however, Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21 T, Decision on the Defence Motion to Suppress Custodial Statements by the Accused, 8 June 2001, where it was alleged that the accused Ntahobali was unaware when making a statement, that he was being spoken to by the Prosecutor and that the Prosecutor introduced himself as a lawyer. The Prosecutor argued that no fundamental right of the accused had been violated. The Trial Chamber did not find it necessary to deal with this issue, as there was no certainty that the Prosecution would use the accused’s statement as evidence. If so, the defence could challenge its admissibility. 106 The aim of this request is to prevent the escape of a suspect, to prevent intimidation or injury to a victim or a witness or the destruction of evidence. 107 Until the end of 1999, reliance on Rule 40 for the detention and transfer to the Tribunal of suspects in the absence of a confirmed indictment was not exceptional under ICTR Prosecutor’s arrest policy. See Fifth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994; UN Doc. No. S/2000/927, 2 Oct. 2000, para. 122 (hereinafter “Fifth Annual Report of the ICTR”). The Annual Reports of the ICTR can be found at the ICTR Website . 102

the proceedings at the icty and ictr

29

committed a crime over which the Tribunal has jurisdiction”.108 The provisional detention of a suspect is limited to an initial 30 days, but it may be extended to an absolute maximum of 90 days.109 Upon transfer of a suspect to the seat of the Tribunal, the suspect must be brought without delay before a judge “who shall ensure that his rights are respected”.110 Motions challenging the legality of provisional detention or requesting the suspect’s release, may be filed by the Prosecution, by the suspect or by his counsel.111 The ICTY Statute, combined with its Rules of Procedure, is considered to go beyond the minimum procedural guarantees recognised by international law.112 However, in a case where the suspect is provisionally arrested by a State or an international body at the request of the Prosecutor under Rule 40, there is no guarantee that the suspects’ rights will be upheld.113 There is no requirement in the Rules of the Tribunal that the person under investigation be informed as to whether he is being questioned as a “suspect”, an “accused” or as a “witness” which leads to uncertainty about the status and the rights of the person.114 As with a warrant of arrest 108 Rule 40bis (ii) of both Tribunals. See Prosecutor v. Nahimana, Case No. ICTR-9611-T, Decision on the Defence Preliminary Motion, Pursuant to Rule 72 of the Rules of Procedure and Evidence, 12 July 2000. On jurisdiction see also Prosecutor v. Nsegiyumva, Case No. ICTR-96-12-I, Decision on the Defence Motion Objecting to the Jurisdiction of the Trial Chamber on the Amended Indictment, 13 April 2000. The numbering method of the ICTR cases is the same as the one used by the ICTY, see above note 72. For information on the ICTR, a useful resource is the ICTR Web site . This site contains a list of the accused in English alphabetical order, but only some of the indictments, orders, and decisions pertaining to the accused person. The ICTR Statute and the Rules of Procedure and Evidence can be found therein. 109 Rule 40bis (D) of both Tribunals. 110 Rule 40bis ( J). 111 Rule 40bis (K). It should be noted that in the context of the ad hoc Tribunals, there is no provision allowing to challenge the legality of the detention at the initial stages of the proceedings. Accused persons had the right to challenge the legality of their detention only well into the trial after the Prosecution had presented its case. On this issue, an innovative decision was rendered by the ICTY, see below note 174. 112 Claude Jorda, The International Criminal Tribunal for the Former Yugoslavia: Its Functioning and Future Prospects, in WAR CRIMES AND WAR CRIMES TRIBUNALS, above note 62, at 178. See also Article 14, International Covenant on Civil and Political Rights (hereinafter the “ICCPR”) 16 Dec. 1966, reprinted in Chistopher Gane and Mark Mackarel (eds.), HUMAN RIGHTS AND THE ADMINISTRATION OF JUSTICE, Kluwer Law International (1997), at 22. 113 See Michaïl Wladimiroff, Rights of Suspects and Accused, 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 434. 114 See Prosecutor v. Djukic, ICTY Case No. IT-96-20-T. General Djukic and Colonel Krsmanovic, both high ranking officers of the Serbian Army, where arrested by the Bosnian Army and transferred to the Tribunal as detained witnesses under Rule 90 bis of the ICTY. Both were questioned by the Prosecutor and General Djukic was charged by the Prosecutor. They were transferred as witnesses to the Tribunal and it is unclear whether General Djukic was interrogated as a witness or a suspect, and if so, whether he was informed of his status and of the the rights attached thereto, see Paul J.I.M. De Waart, From ‘Kidnapped’ Witness to Released Accused ‘for Humanitarian Reasons’: The Case of the Late General Djordje Djukic, 9 LJIL (1966), at 453. The indictment of LCG Djukic was confirmed on 29 February 1996; the

30

chapter ii

issued by the Tribunals, Rule 40 bis of both Tribunals requires that the order for the transfer and provisional arrest be accompanied by a statement of the rights of the suspect but again, there is no control over the effective respect of these rights during the period preceding the detention of the suspect in the host country of the Tribunal. The investigative stage is followed by the issuing of an indictment if the Prosecutor is satisfied that there is sufficient evidence that the suspect committed an offence within the Tribunal’s mandate.115 The indictment submitted by the Prosecutor, together with supporting material, must contain a concise statement of the facts and the crimes with which the accused has been charged.116 A judge of the Trial Chamber to whom the indictment has been submitted, will review the indictment and confirm it if, in his opinion, the Prosecution has established a prima facie case; if not, the judge will dismiss the indictment.117 The confirmation of indictment is not explicitly an ex parte hearing, however, it is nowhere envisaged that either the suspect or the defence counsel shall participate or be heard at this stage of the proceedings. accused remained in detention until 24 April 1996 and was provisionally released once it was known that he was terminally ill. He died on 18 May 1996. 115 Under Article 18 (4) of the ICTY Statute and Article 17 (4) of the ICTR Statute “the Prosecutor shall prepare an indictment” if he determines that a prima facie case exists. The use of the term ‘shall’ does not seem to leave the decision whether to prepare or not to prepare an indictment up to the Prosecutor. However, according to Judge Lal Chand Vorah “whether or not to issue an indictment is entirely within the discretion of the Prosecutor”; Lal Chand Vorah, Pre-Trial Procedures and Practices, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 488. 116 Article 18 (4), Statute of the ICTY. Article 17 (4), Statute of the ICTR. See Prosecutor v. Bagasora, Case No. ICTR-96-7-T, Decision on the Prosecution Motion for Adjournment, 17 March 1998. See also Prosecutor v. Semanza, ICTR-97-20, Judgement and Sentence, 15 May 2003; Prosecutor v. Ntagerura and Others, ICTR-99-46-T, Judgement and Sentence, 25 February 2004; Prosecutor v. Seselj, ICTY Case No. IT-03-67/PT, Decision on Motion by Vojislav Seselj Challenging the Amended Form of Indictment, 26 May 2004. On the issue of defects of form of the indictment, see Prosecutor v. Karemera, Case No. ICTR98-44-T, Decision on the Defence Motion, Pursuant to Rule 72 of Rules of Procedure and Evidence, Pertaining to, inter alia, Lack of Jurisdiction and Defects in the Form of the Indictment, 25 April 2001; Prosecutor v. Kanyabashi, ICTR-96-15-, Decision on Defence Preliminary Motion for Defects in the Form of the Indictment, 31 May 2000. On the degree of clarity required in the indictment, see Prosecutor v. Rajic, ICTY Case No. IT95-12-PT, Decision on the Defence Motion on the Form of the Indictment, 27 April 2004; Prosecutor v. Rasevic, ICTY Case No. IT-97-25/1-PT, Decision on the “Defence’s Preliminary Motions Pursuant to the Rules 50 (C) and 72 (A)(ii)” of 10 June 2004, 27 July 2004. On additional facts in the indictment, see Prosecutor v. Kabiligi & Ntabakuze, Case No. ICTR96-34-I, Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to Declare the Indictment Void ab Initio, 13 April 2000. Nothing in the Statute of the ICTY or of the ICTR prohibits the indictment of minors for crimes within the jurisdiction of the Tribunals. So far, no minor has been indicted. The ICC has no jurisdiction over persons whom were under the age of eighteen at the time of the commission of the alleged crime. 117 Article 19 (1), Statute of the ICTY. Article 18 (1), Statute of the ICTR.

the proceedings at the icty and ictr

31

3. The Indictment Upon confirmation, the indictment is in principle to be made public,118 unless the confirming judge or the Trial Chamber, in consultation with the Prosecutor, ordered that there be no public disclosure of the indictment until it has been served on the accused.119 Non-disclosure is a means of preventing the accused from fleeing to avoid arrest upon hearing of the indictment as well as being an initiative of the Tribunal to overcome lack of state co-operation in the arrest of the accused.120 The judge or the Trial Chamber has wide powers in the field of non-disclosure; such orders may be made in order to protect confidential information obtained by the Prosecutor, or as deemed necessary to protect the interest of justice.121 Rule 50 of both Tribunals covers the issue of amendments to the initial indictment. The Prosecutor may amend an indictment without leave at any time before its confirmation, thereafter, by leave of the judge who confirmed the indictment or by the Trial Chamber. An indictment amended by leave does not need to be confirmed. If the indictment includes new charges, the accused has thirty days to file preliminary motions to challenge the new charges.122 Since the Prosecution may amend the indictment, 118 Rule 52 of both Tribunals. An indictment made public may be advertised. The Prosecutor may request that it be transmitted to the national authorities of any State and published in newspapers, and broadcast via radio and television whereby the accused is called upon to surrender to the Tribunal, and anyone possessing information as to the whereabouts of the accused is invited to transmit the information to the Tribunal (Rule 60 of both Tribunals). 119 Rule 53 of both Tribunals. In cases of non-disclosure of confirmed indictments, the accused does not know that he is accused and of what he is accused until he is taken into custody and the indictment is handed to him. Unless service of the indictment is effected immediately, non-disclosure can imply severe time-pressure for the preparation of the defence, or delay the beginning of the trail and consequently jeopardise the defendants’ right to be tried within a reasonable period of time, see Michaïl Wladimiroff, Rights of Suspects and Accused, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 429–30. 120 Louise Arbour, The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results, in WAR CRIMES AND WAR CRIMES TRIBUNALS, above note 62, at 39–41. 121 The indictment against Dr. Kovacevic was placed under seal; see Prosecutor v. Kovacevic, ICTY Case No. IT-97-24-T, Initial Indictment, 13 March 1997. The accused, like all those arrested on the basis of an undisclosed indictment, never had the opportunity to surrender to the Tribunal, therefore, it cannot be known whether any of them would have voluntarily surrendered. In the context of sentencing, voluntary surrender is considered a mitigating circumstance; see below at 109–112. 122 Rule 50 (C) of both Tribunals. Under Rule 50(A)(ii ) “. . . leave to amend an indictment shall not be granted unless the Trial Chamber or Judge is satisfied there is evidence which satisfies the standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment”. On the degree of clarity required in the indictment, see Prosecutor v. Rajic, ICTY Case No. IT-95-12-PT, Decision on the Defence Motion on the Form of the Indictment,

32

chapter ii

the accused may be prosecuted on charges other than those on which he was arrested initially. In the Kovacevic case, the defence argued that the principle of speciality in international customary law prohibited the Prosecution of the accused on charges other than those on which he was arrested in Bosnia and Herzegovina and brought to the Netherlands. The Appeals Chamber held that: “if there exists such a customary international law principle, it is associated with the institution of extradition as between states and does not apply in relation to the operations of the International Tribunal . . . The fundamental relations between requested and requesting state have no counterpart in the arrangements relating to the International Tribunal”.123

The pre-trial phase of the proceeding starts upon confirmation of the indictment and “would seem to end when the trial commences with the presentation of evidence by the Prosecution”.124 With the confirmation of the indictment the suspect is formally charged and accused of the crimes set forth in the indictment, and the judge may, at the request of the Prosecutor, issue a warrant of arrest for the accused.125 In the context of the ICTY, there are two different mechanisms provided for arresting a suspect or accused persons. The first one, and the only one for the ICTR, is based on Article 29 of the Statute of the ICTY126 and Rule 55, common to both Tribunals. This mechanism relies on the co-operation and judicial assistance of states with the Tribunal. The second procedure of arrest and transfer of the accused to the Tribunal is based on Rule 59bis of the ICTY only. Under this procedure, the warrant of arrest is transmitted to an international authority, or to an international body other than a state, for the arrest and transfer of the accused.127 Consequently, the accused may be taken into custody without the involvement of the state in which he is physically located.128 Whatever the procedure employed, a warrant of arrest must be 27 April 2004; Prosecutor v. Rasevic, above note 121. On additional facts in the indictment, see Prosecutor v. Kabiligi & Ntabakuze, Case No. ICTR-96-34-I, Decision of 13 April 2000, 13 April 2000. 123 Prosecutor v. Kovacevic, ICTY Case No. IT-97-24-AR73, Decision Stating Reasons for Appeal’s Chamber’s Order of 29 May 1998, 2 July 1998. 124 Lal Chand Vohrah, Pre-Trial Procedures and Practices, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 485. 125 Rule 54 of the ICTY and of the ICTR, this Rule is based on Article 19 (2) of the respective Statutes under which “Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders as warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial”. 126 Article 28 Statute of the ICTR. 127 Rule 59bis (A) of the ICTY only. 128 Prosecutor v. Dokmanovic, ICTY Case No. IT-95-13a-PT, Decision on the Motion for Release by the Accused Dokmanovic, 22 October 1997 (hereinafter Dokmanovic Motion for Release).

the proceedings at the icty and ictr

33

signed by a judge. Pursuant to Rule 55, it “shall include an order for the prompt transfer of the accused to the Tribunal upon the arrest of the accused”.129 Under the first mechanism, the warrant which must be accompanied by a copy of the indictment and a statement of the rights of the accused130 is transmitted to the national authorities of the state on whose territory or under whose jurisdiction the accused resides, was last known to be, or is likely to be found.131 Whatever the mechanism employed, the Statutes and the Rules of the Tribunals do not stipulate how the actual arrest shall be performed, which may or may not be arranged by the Prosecutor in conjunction with the authorities concerned. During the execution of arrest warrants under Rule 55, the indictment and a statement of the rights of the accused must be read to the accused in a language that he understands, he must also be cautioned of his right to remain silent, and of the fact that any statement he makes shall be recorded and can be used in evidence. Pursuant to Rule 55 (B), the registrar must instruct the person or authority to whom/which the warrant is transmitted of the afore-mentioned obligations that are intended to protect the ‘legal rights’ of the accused. This is not the case where the warrant for the arrest of an accused is transmitted to an international authority or body or the Prosecutor under Rule 59bis. All that the accused has to be informed of when taken into custody, is of the charges brought against him in a language he understands and that he is being transferred to the Tribunal. Neither the indictment nor the statement of the rights of the accused is to be read to him; no cautioning is required. It is only upon his transfer to the Tribunal that he is entitled to be informed of the content of the indictment and of his rights, and that the obligation to caution the accused applies. Whatever the mechanism used, there is not a single provision in the Statutes or in the Rules requiring the national or international authorities to whom the warrant is addressed, to perform the arrest and the detention in accordance with international human rights standards. There is no explicit mention that the accused may not be subject to torture or other cruel, inhuman or degrading treatment. In the case of Dr. Kovacevic, the circumstances under which the accused was arrested, did not seem to be a relevant issue for the Trial Chamber. Dr. Kovacevic, chief anaesthesiologist in the Prijedor City Hospital in Bosnia and deputy mayor of Prijedor, was initially accused of complicity in genocide.132 According to his defence counsel, Prof. Anthony D’Amato, Dr. Kovacevic was at work in the hospital when some unknown

129 130 131 132

Rule 55 (A) of the ICTY only. See Rule 55 (B)(i) for the ICTR. Rule 55 (C) and (D) of the ICTY; Rule 55 (A) and (B) of the ICTR. Rule 55 (E) of the ICTY, Rule 55 (A) of the ICTR. Prosecutor v. Kovacevic, ICTY Case No. IT-97-24-I, Initial Indictment, 13 March 1997.

34

chapter ii

individuals arrived on the morning of 10 July 1997, claiming to have a Red Cross package to deliver him. It was a set up. NATO personnel “arrested him and stuck him on a helicopter along with the local police chief ’s son. The son had been arrested after Simo Drljaca, his father (who was the indicted person), was shot dead while resisting NATO arrest. The detectives took the doctor and the young man to Tuzla and put them into a metal container, the kind used for transatlantic shipping. With the scorching July sun beating down on this metal container, the container’s heaters were turned on and the two men pushed against the wall. It was so hot in the container that the NATO soldiers could not bear to remain in it for more than a few minutes at a time. While the two prisoners were standing against the wall, Dr. Kovacevic’s indictment for complicity in genocide was read to them— there was no indictment against the police chief ’s son—by NATO personnel entering and leaving the trailer. As soldiers came in and out, pressing their guns against the prisoners’ heads and clicking the triggers. Each time the prisoners thought they would be killed. The procedure went on for a couple of hours. Than the two prisoners were taken out of the sealed container and transported by helicopter to the detention center in The Hague, where soon after his arrival he (Dr. Kovacevic) suffered his first heart attack. I have reason to believe that when he died of aneurysm some eleven months later (two weeks into his trial), his death may have been caused in part by the torture he endured at the hands of the NATO police”133 (footnotes omitted).

The lack of an explicit requirement that the national authorities or the international entities are to execute the orders of the ad hoc Tribunals in accordance with, at least, the minimum standards of international human rights, is a serious shortcoming. Torture and ill-treatment are prohibited by international customary law.134 The Tribunals are not bound by inter133 Anthony D’Amato, PERSPECTIVE: Defending a Person Charged with Genocide, 1 Chi. J. Int’l Law (2000), at 459–460. Reprinted with the permission of Prof. Anthony D’Amato. Dr. Kovacevic’s defence counsel gave a full account of these events before the Tribunal; (Prosecutor v. Kovacevic, ICTY Case No. IT-97-24-PT, Transcript of Hearing, 10 Oct. 1997). The Prosecutor made no objections, nor did the judge ask any questions about the account made by the defence of the circumstances of the arrest. It will never be known whether the accused was innocent or guilty of complicity in genocide, nonetheless according to his defence counsel, the Prosecution did not have evidence in its possession that Dr. Kovacevic had ordered any acts of genocide, nor that he had ever participated in acts of genocide, nor that he had ever seen or witnessed the commission of any acts of genocide, nor that he was connected to the commission of acts of genocide; Ibid. 134 In 1994, the United Nations Crime Prevention and Criminal Justice Branch related to the prohibition of torture and ill-treatment as follows: “In 1975, the General Assembly adopted the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The provisions of the Declaration were given the force of international law in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984, and the prohibition of torture and ill-treatment is now a norm of customary international law” (footnotes omitted) (emphasis added). HUMAN RIGHTS AND PRE-TRIAL DETENTION, A Handbook on International Standards Relating to Pre-trial Detention, Centre for Human Rights, United Nations, para.

the proceedings at the icty and ictr

35

national conventions to which they are not party, but they are bound by international customary law as well as by the general principles of international law. The Tribunals do not exist in a vacuum; they are based on and operate within an existing legal order. Consequently, any decision or order of the Tribunals, must be in conformity with, and is to be applied according to established international legal principles. When executing a warrant of arrest, a national authority does not only apply domestic law, and the international body does not only apply its own rules, they also apply international law. The arrest and temporary detention of a suspect or an accused ordered by an International Tribunal can therefore not be effectuated in violation of international law.135 The Report of the Secretary General emphasises the importance of ensuring full respect of international human rights standards at all stages of the proceedings (emphasis added).136 The opening of investigations is sometimes seen as a part which can be separated from the proceedings proprio motu, as it does not necessarily lead to an indictment There can be no doubt, however, that once a warrant of arrest is issued, the proceedings against a suspect or an accused have indeed started. The ad hoc Tribunals have the power to order states, and can request the assistance of international bodies,137 to arrest and detain suspects or accused persons pending transfer. Any order

10 (1994), (hereinafter “HUMAN RIGHTS AND PRE-TRIAL DETENTION”). See also Nigel Rodley, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW, Clarendon Press (1987), at 44–70. 135 In the Erdemovic Judgement, the Trial Chamber held that the state where the prison sentence is served, executes the sentence on behalf of the International Tribunal, this in application of international criminal law and not of domestic law; Prosecutor v. Erdemovic, ICTY Case No. IT-96-22-T, Sentencing Judgement, 29 November 1996 (hereinafter the “Erdemovic Sentencing Judgement I”). A warrant of arrest is issued by the Tribunal and is executed by the requested state or an international body on behalf of the Tribunal. In the Kajelijeli case, the defence challenged the legality of the arrest and detention of the accused by the requested state. The Trial Chamber considered the Tribunal not to be competent to supervise the legality of the arrest and custody by the requested. It should be noted that the legality of the arrest effectuated on application of an arrest warrant issued by an ad hoc Tribunal, may not be challenged before a national court either. 136 For the ICTY see Report of the Secretary-General Pursuant to Resolution 808, above note 65, para. 106; for the ICTR see Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955, above note 66. 137 Dokmanovic was arrested by the United Nations Transitional Administration for Eastern Slovenia (UNTAES). The defence challenged the legality of the arrest of the accused. The arrest was executed on the basis of a sealed indictment. An investigator of the Belgrade Office of the Prosecutor enticed Dokmanovic to an area controlled by UNTAES where he was arrested. Prosecutor v. Dokmanovic, ICTY Case No. IT-95-13a-PT, Motions by the Accused, 7 July 1997. The Trial Chamber acknowledged that the Office of the Prosecutor had used trickery and ruse in arresting the accused, but noted that he was not forcibly abducted or kidnapped, this implies that the Trial Chamber would consider forcible abduction or kidnapping illegal. Dokmanovic Motion for Release, above note 128.

36

chapter ii

of this nature issued by the Tribunal, should include a specific requirements that it be executed in accordance with international human rights standards. On this subject, the ICC Statute improves the situation only to a limited extent. Article 59 (2) on ‘Arrest proceedings in the custodial State’ stipulates that the competent judicial authority shall determine, in accordance with the law of that State, that the person has been arrested in accordance with the proper process, and that his rights have been respected.138 It should not be forgotten that an indictment only contains what the Prosecution declares it will prove, but it is not evidence. The fact that nothing is said in any of the basic documents of the Tribunals concerning the respect of minimum standards during the arrest of the accused, amounts to a consideration of probable guilt. According to the assessment of the Prosecutor of the ICTY “[F]rom the inception of the Tribunal to 25 May 2005, in 20 trials, a total of 36 persons have been convicted and 3 persons acquitted. Three of the 36 convictions were later reversed on appeal”.139

There are cases where the accused was in detention and the indictment was withdrawn140 or an error had occurred due to the identity of names between the arrested and accused person.141 Out of the 25 concluded cases at the 138 The law of the State might or might not prohibit ill-treatment or even torture of an accused person. On this issue, the ICC Statute provides that a person “[s]hall not be subject to any form of coercion, duress or threat, to torture or to any form of cruel, inhuman or degrading treatment or punishment” (Article 55 (b)). 139 See United Nations Document S/2005/343, 25 May 2005, Letter dated 25 May 2005 from the President of the International Tribunal For the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 addressed to the President to the Security Council, Annex II, Assessment of Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Security Council Resolution 1536 (2004), Footnote of Enclosure I, at 14 (Hereinafter “ICTY Prosecutor’s Assessment”). Since the inception of the ICTY, three accused died whilst in the Detention Unit, and one accused died after he was provisionally released. The proceedings against them were at the pre-trial stage; see http://www.un.org/icty/glance/index.htm (Case Information Sheet). 140 See Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16, Decision on Motion by the Prosecutor for Withdrawal of Indictment Against Marinko Katava, 19 Dec. 1997. In this case, the accused surrendered voluntarily on 6 October 1997. He sought provisional release on 27 November 1997 to which the Prosecution objected, his request for provisional release was denied on 15 December 1997. On 18 December 1997, the Prosecution filed a motion under Rule 51 requesting leave to withdraw the indictment issued against the accused on the grounds that there was insufficient basis to justify proceedings against him. In its decision of 19 December 1997, the Trial Chamber (a) expects that in the future, the Prosecution will act expeditiously on matters of such fundamental importance as the liberty of the accused; and (b) considers it to be in the interests of justice to restore Marinko Katava’s right to liberty without delay. 141 See below at 37 and note 143.

the proceedings at the icty and ictr

37

ICTR, the conviction of 14 accused is final, eight cases are on appeal, one accused was acquitted, and two indictments were withdrawn, one after nine months detention.142 Under the Rules of the Tribunals there is no possibility to challenge the arrest by either a national authority or by an international body before the accused has been transferred to the Detention Unit of the Tribunal. If a person was arrested by mistake, he/she was not entitled to compensation. Errors have occurred for example in the Lajic case where the arrested person carried the same name as an indictee of the ICTY, and in the case of Mr. Twagirimana who was mistaken for an accused wanted by the ICTR. Mr. Goran Lajic was arrested by the German authorities on 18 March 1996 having been mistaken for the accused Goran Lajic against whom an indictment was issued by the Prosecutor of the ICTY. His initial appearance before the Tribunal occurred on 17 May 1996. Upon discovery of the error, the Trial Chamber ordered his immediate release on 17 June 1996.143 He was detained for three full months. According to the Statement of the ICTR on the Report of Amnesty International of 29 April 1998: “Mr. Esdras Twagirimana was mistakenly arrested during the Tribunal’s Operation NAKI on 17 July 1997 . . . After the discovery that Mr. Twagirimana was arrested by virtue of having been mistaken for another suspect, he was briefed accordingly. In particular, he was informed that he was going to be transferred to Nairobi where he was living”.144

In the same Statement it is denied that the suspect was detained by the Tribunal, however, Amnesty International did not share this position and held that the suspect “was held in unlawful detention for almost two months in Arusha, denied access to a lawyer, not brought before a judge at all and then returned to Nairobi . . .” (emphasis in original).145

In fact, an indictment was never issued against Mr. Twagirimana who was arrested, transferred and detained pursuant to Rule 40 and 40 bis (Transfer and Provisional Detention of Suspects). Despite repeated requests, he was not 142

See ICTR Website, Cases, Status of Detainees, 23 May 2005. Prosecutor v. Lajic, ICTY Case No. IT-95-8-T, Order for the Withdrawal of the Charges Against the Person Named Goran Lajic and for His Release, 17 June 1996 (hereinafter “Order for Withdrawal of Charges”). 144 See ICTR Archives of Press Releases, Statement on Amnesty International’s Report International Criminal Tribunal for Rwanda, Trials and Tribulations Dated 30 April 1998, ICTR/INFO-9-2-117, 29 April 1998 (hereinafter ICTR Statement on Amnesty International’s Report) at 3, ICTR Website . 145 Amnesty International, International Criminal Tribunal for Rwanda, Trials and Tribulations, IOR 40/003/1998, 1 April 1998, para. 1.2. 143

38

chapter ii

granted access to counsel on the grounds that as he “was neither a suspect nor an accused and had no charge to answer, it was not necessary for him to have assistance of legal counsel”.146 On the issue of compensation, the ICTR relied on the jurisprudence of the ICTY.147 “As regards compensation, it may be helpful to look at an ICTY precedent. At the ICTY, one Goran Lajic was arrested, having been mistaken for the accused Goran Lajic, indicted by the ICTY in the Keraterm camp case (IT95-8-T). When the error was discovered, he was released (see Order for the Withdrawal of the Charges Against the Person Named Goran lajic (sic) and for His Release, 17 June 1996). His counsel, Toma Fila, requested compensation. This request was referred to the Under-Secretary-General for Legal Affairs and Legal Counsel of the UN who quite unequivocally replied that compensation by the United Nations was in these circumstances quite out of the question” (emphasis of the ICTR).148

Consequently, the two mistakenly arrested persons were denied the right to compensation. If the position adopted by the Under-Secretary-General for Legal Affairs and Legal Counsel of the UN was as reported, it contradicts Article 9 para. 5 of the International Covenant on Civil and Political

146 Ibid., para. 10.1. Esdras Twagirimana was arrested on 18 July 1997 and transferred to Arusha where the mistake was discovered within a few days of his arrival. He was detained in the Detention Unit of the Tribunal until 20 September 1997, a period during which neither the Registrar, nor the Office of the Prosecutor took the necessary steps to ensure his appearance before a judge. Ibid., para. 10.2. In this case the ICTR violated its own Rules. Rule 40bis ( J) of the ICTR provides as follows: “After his transfer to the seat of the Tribunal, the suspect, assisted by his counsel, shall be brought, without delay, before the Judge who made the order, or another Judge of the same Trial Chamber, who shall ensure that his rights are respected”. 147 There are several decisions of the ICTR Trial Chambers referring to the jurisprudence of the ICTY or vice-versa. It should be noted that it is not provided anywhere that the decisions of the two Tribunals are binding towards each other. Trial Chamber II of the ICTY held that “Prior decisions of a Trial Chamber in another case have no binding force per se in the case before us” (Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-T, Decision on the Motion To Allow Witness K, L, And M To Give Their Testimony By Means Of Video-Link Conference, 28 May 1997, para. 16). The right to compensation following the violation of the rights of the accused, was recognized by the ICTY Appeals Chamber (Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR-72, Judgement, 31 March 2000), where the Tribunal decided that “. . . for the violation of his rights, the Appellant is entitled to a remedy which shall be given when judgement is rendered by the Trial Chamber, as follows: (a) If he is found not guilty, the Appellant shall be entitled to financial compensation; (b) If he is found guilty, the Appellant’s sentence shall be reduced to take into account the violation of his rights, pursuant to Article 23 of the Statute” (Part VII(6) of the decision). The right to compensation was confirmed in the Semanza case; Prosecutor v. Semanza, ICTR-97-20-A, Decision, 31 May 2000. 148 ICTR Statement on Amnesty International’s Report, above note 61 at 5. It should be noted that the paragraphs relating to compensation in the Order for Withdrawal of Charges in the Lajic case (above note 143) were deleted before publication by electronic means.

the proceedings at the icty and ictr

39

Rights under which “[a]nyone who has been the victim of unlawful arrest and detention shall have an enforceable right to compensation”.149 The arrests occurred pursuant to orders of the Tribunals, the mistakes were in no way attributable to the arrested persons, damage was caused, yet nonetheless, the victims were deprived of the right to compensation. The absence of provisions on compensation in the Statute and the Rules of the ad hoc Tribunals led the President of the ICTY and the President of the ICTR to call for an amendment of the Tribunal’s Statutes to provide compensation to persons in case unlawful arrest or detention, unjust conviction or miscarriage of justice.150 As of July 2005, no such amendment was adopted. On this subject, Article 85 of the Rome Statute on “Compensation to an arrested or convicted person” adopts verbatim the wording of Article 9 para. 5 of the ICCPR.151 Whether an arrest was or was not in accordance with the national laws of the arresting state is not subject to review by an internal court or by the Tribunal. In the Kajelijeli case the Trial Chamber rejected the defence motion challenging the legality of the arrest and detention of the accused on the grounds that: “the Tribunal is not competent to supervise the legality of arrest, custody, search and seizure executed by the requested State. The laws of the requested State may not require an arrest warrant or impose other legal conditions” (para. 35).152

The situations described above cannot be seen as due process of law, and for several years there was no competent forum where claims for remedy or compensation could be filed. The fact that the Tribunals were not

149

ICCPR, above note 112. Address of ICTY President Judge Claude Jorda to the UN General Assembly, IT SB/S.I.P./512-e, 20 June 2000; Seventh Annual Report, UN Doc. A/55/273, 7 August 2000, para. 92 151 The Rules of Procedure and Evidence of the ICC (Rule 173 and 174) provide for the procedure to follow when compensation is sought. A proposal for the amendment of the ICTR Statute to allow for compensation for persons wrongfully detained, prosecuted or convicted by the Tribunal was submitted by Judge Navanethem Pillay, President of the ICTR, to the Secretary-General; see Sixth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994; UN Doc. No. S/2001/863, 14 Sept. 2001, para. 85 (hereinafter “Sixth Annual Report of the ICTR”). See UN Doc. No. S/2000/925 for the text of the proposal. 152 Prosecutor v. Kaljelijeli, Case ICTR-98-44, Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and to Supplement the Record of 8 December 1999, 8 May 2000. 150

40

chapter ii

willing to to look into the circumstances of the arrest of an accused once he was brought to it, lead to a situation were rights were violated and no remedy was available. The national authorities cannot invoke their internal laws or existing extradition treaties to avoid the surrender or transfer of the accused to the seat of the Tribunal.153 Even if the national laws of the arresting state provide for such a possibility, de facto the accused cannot challenge the legality of his arrest before a national court as he is transferred to the United Nations Detention Unit in The Hague, if the arrest warrant stems from the ICTY, or to the Detention Unit in Arusha if he is a suspect or an accused of the ICTR. In instances where the national authorities are unable to execute an arrest warrant, the authority has to report the inability, including its reason to the registrar of the Tribunal. In the absence of such a report and after the lapse of a reasonable time, if no action is taken, the relevant State is deemed to have failed to execute the warrant of arrest and the Security Council may be notified accordingly.154 In principle, trial proceedings cannot begin until the accused is physically present at the seat of the Tribunal. Under the Statutes of both Tribunals, the accused is entitled to be tried in his presence.155 In the event of the failure to execute a warrant of arrest or transfer order, a Trial Chamber may conduct a special procedure without the accused being present (the “Rule 61 proceedings”).156 Although these proceedings seem to constitute a substitute for trial in absentia,157 they are clearly distinguishable from regular trials and from trials in absentia as there is no judgement, there is no finding of guilt or innocence at the end of this procedure.158 Nevertheless,

153 Article 29 Statute of the ICTY, Article 28 Statute of the ICTR restated in Rule 58 of both Tribunals. The afore mentioned Articles of the Statutes impose an obligation on states to co-operate with the Tribunals in the investigation and Prosecution of accused persons and to comply without delay with any request for assistance or an order of arrest, detention, surrender or transfer of the accused issued by a Trial Chamber of the Tribunal. 154 Rule 59 (B) of both Tribunals. 155 Article 21 (4) (d) Statute of the ICTY; Article 20 (4) (d) Statute of the ICTR. See Mame Mandiaye Niang, Le Tribunal pénal international pour le Rwanda. Et si la contumace était possible! RGDIP, Vol. 103 (1999), at 379. 156 The Rule 61 procedure can be activated in the case of failure to execute a warrant of arrest or transfer order and a reasonable time has passed since. If the judge who confirmed the indictment is satisfied that the Prosecutor “has taken all reasonable steps to effect personal service” and has taken all measures provided by the Rules to locate the accused and have him arrested, an order that the indictment be submitted to the Trial Chamber of the confirming judge will be issued. 157 Hervé Ascensio, The Rules of Procedure and Evidence of the ICTY, above note 91, at 471–472. 158 The Rule 61 procedure does not change the status of the accused person. If arrested after the closing of a Rule 61 proceeding, the accused may contest the charges against him at a regular trial.

the proceedings at the icty and ictr

41

if the Trial Chamber is satisfied with the evidence submitted by the Prosecutor, and if it is demonstrated that there are reasonable grounds to believe that the accused has committed the crimes alleged against him in the indictment, an international arrest warrant may be issued by the Trial Chamber. The warrant is transmitted to all States,159 whereby the accused becomes subject to arrest wherever he goes in the world except perhaps,160 in States unwilling to co-operate with the Tribunal. The international warrant shall be executed as it stands; it does not require further action by a national authority to transform it into a legally binding decision.161 When States do not want to arrest accused persons, according to Judge Sidhwa: “. . . it is the International Tribunal’s painful and regrettable duty to adopt the next effective procedure to inform the world . . . of the terrible crimes with which the accused is charged” . . . .162

Means not explicitly provided by the Rules to induce compliance with arrest warrants, were sought by the Prosecutor and confirmed by the Judge in the case of Milosevic and Others. At the request of the Prosecutor, the Trial Chamber ordered that each State member of the United Nations adopt provisional measures to freeze the assets of the accused located in their territory “until the accused are taken into custody”.163

159

Rule 61 (D) of both Tribunals. International bodies such as IFOR, SFOR or UNTAES have, although after many hesitations of the commanders, arrested accused persons (SFOR: the Multinational Stabilisation Force which succeeded the NATO-led International Implementation Force (“IFOR”) deployed pursuant to Annex 1-A of the Dayton Peace Agreement of 14 December 1995; see UN Doc. S/1995/1021 (1995). These international bodies have the authority, but not necessarily the obligation to arrest indicted persons; see Richard Holbrooke, TO END A WAR, Random House (1998), at 222. See also Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, UN Doc. S/1998/737, 10 Aug. 1998, para. 114 (hereinafter Fifth Annual Report of the ICTY). In April 2000, Frenchled NATO troops arrested the accused Krajisnik allegedly implied in war crimes committed in Bosnia. 161 In the context of the ICTY as of May 2005, there are ten outstanding international arrest warrants against accused persons, see Assessment of Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, above note 139. 162 Prosecutor v. Rajic, ICTY Case No. IT-95-12-R61, Rule 61 Decision, 13 September 1996, Separate Opinion of Judge Sidhwa, para. 7. 163 Prosecutor v. S. Milosevic and Others, ICTY Case No. IT-99-37, Decision on Review of the Indictment on Application of Consequential Orders, 24 May 1999, para. 26. In his decision, the confirming Judge noted that the Federal Republic of Yugoslavia has consistently ignored the orders of the Tribunal to arrest indicted persons. The authority cited in the decision for the freezing of assets of the accused, was Article 19 (2) of the Statute of the ICTY which reads as follows: “Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial”. 160

42

chapter ii

Rule 61 proceedings may involve the calling of witnesses to present their evidence. This Rule does not explicitly provide for the protection of witnesses, nevertheless, such measures were ordered in Rule 61 proceedings in the Nikolic case.164 During Rule 61 proceedings the defence counsel of the accused is not permitted to be present as these proceedings are not considered a trial or a trial in absentia, they are ex-parte proceedings and do not culminate in a verdict. Such proceedings are held in circumstances where the accused was not arrested, nor did he surrender or ever appear before the Tribunal. It was held that Counsel for the accused may consequently not be present at the proceedings,165 and he may not file preliminary motions at the Rule 61 stage.166 Rule 61 proceedings are an exception. They constitute a last resort to counter the failure of states in searching for, arresting and transferring the accused to the Tribunal. According to data of May 2005 regarding the ICTY, ten accused are still at large,167 and as regards the ICTR, there are nine remaining fugitives.168

4. Initial Appearance of the Accused Under Rule 62, upon arrest and transfer of the accused to the Tribunal’s custody, he shall be brought before a Trial Chamber without delay and shall be formally charged.169 Pending trial, the accused is detained in the Tribunal’s detention unit.170 164 In the Nikolic case, the addresses of witnesses were not disclosed; one witness was granted confidentiality (protective screening from the public gallery when evidence was given, image and voice distortion during the broadcasting of the proceedings). Prosecutor v. Nikolic, ICTY Case No. IT-95-2-R61, Review of the Indictment Pursuant to Rule 61, 9–13 October 1995. 165 Counsel may observe the hearing from the public gallery, unless there is no room. One of the three courtrooms is so small that only half a dozed or so spectators may watch. 166 Prosecutor v. Karadic and Mladic, ICTY Case No. IT-95-5-R61/IT-95-18-R61, Decision Rejecting the Application Presented By Messrs Medvene and Hanley III Seeking Leave to File Briefs Challenging the Fairness of the Statute and the Rules of Procedure and Evidence, 24 July 1996. 167 ICTY Prosecutor’s Assessment, above note 139, at 17. 168 See ICTR Website, Status of Cases, updated 23 May 2005. 169 At the ICTY, the accused may be brought before a permanent judge of the Trial Chamber to which the case was assigned. In the case of Barayagwiza (ICTR), his right to be brought without delay before a Trial Chamber and the right to be promptly informed of the charges against him were clearly violated. He was detained for months without being notified of the charges against him. Barayagwiza v. Prosecutor, Case No. ICTR-97-19AR72, Decision, 3 Nov. 1999 and ibid., Case No. ICTR-97-19-AR72, Judgement, 31 March 2000. See William Schabas, International Decisions, Barayagwiza v. Prosecutor, Decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda on prolonged detention prior to indictment and appearance before the Tribunal, 94 A.J.I.L. ( July 2000), at 563. 170 In May 2005, 51 accused were awaiting trial at the ICTY, the trial of 9 accused

the proceedings at the icty and ictr

43

At the initial appearance of the accused, the Trial Chamber must ensure that his right to counsel is respected, and that he understands the charges against him after the indictment has been read to him in a language that he speaks and understands,171 unless he waived his right to a public reading which is often the case.172 It should be noted that during the pre-trial and part of the trial proceedings, there is no opportunity provided by the Statute or the Rules for the accused to challenge the lawfulness of his detention. On this issues, the Statute and the Rules of the ad hoc Tribunals fall below national and international standards.173 Nevertheless, in the Milosevic case, the Trial Chamber considered this right to be “one of the fundamental rights of an accused person under customary international law . . . One of the essential features of the right of an accused person to challenge the legality of his detention is that such a challenge should be heard as promptly as possible”.174

The length of pre-trial detention varies and depends on several factors. Amendments of the indictment, the number of Trial Chambers and courtrooms available and the case-load of that specific Trial Chamber are factors which, among others, influence pre-trial detention and the length of the trial. Delays or refusal to disclose documents and evidence (in view of the submission of the parties reflected in the decisions of both Tribunals, the Office of the Prosecutor is in the very large majority of cases the party delaying or refusing disclosure), as well as motions and interlocutory appeals

was in progress and 17 appeals were pending; see Prosecutor’s Assessment, above note 139, at 15, 18 and 22. Rule 65 bis requires a Trial Chamber or Trial Chamber Judge to convene a status conference within 120 days of the accused’s initial appearance and not less than every 120 days thereafter to organise exchanges between the parties and provide the accused with an opportunity to raise issues in relation to his or her case, including the accused’s mental and physical condition. 171 Article 21 (4)(a)(b) Statute of the ICTY; Article 20 (4)(a)(b) Statute of the ICTR. Rule 62 (ii) of both Tribunals. 172 The counsel for the accused informs the Trial Chamber that the accused received a copy of the indictment in a language he understands and that he comprehends its contents if this is the case. 173 Pursuant to Article 9 para. 4 of the ICCPR, above note 112. “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. See also United Nations Body of Principles for the Protection of all Persons under any Form of Imprisonment (Principle 37), U.N. Doc. A/43/173 (1988), reprinted in Christopher Gane and Mark Mackarel, HUMAN RIGHTS AND THE ADMINISTRATION OF JUSTICE, above note 112, at 411. Under Rule 40 bis of both Tribunals, only a suspect who has been provisionally arrested and detained in the United Nations Detention Unit (prior to the conformation of the indictment), is granted the right to challenge the legality of his arrest and detention. 174 Prosecutor v. S. Milosevic, Decision on Preliminary Motions, above note 72, para. 38 and 40.

44

chapter ii

filed by the parties, directly or indirectly influence the scheduling of the beginning of the trial and the trial itself. In view of the difficulties encountered by defence attorneys to gather evidence, the preparation of the case requires time. Change of defence counsel by the accused, sometimes more than once, may add a few more months. Joinder of trials may be a significant delaying factor. In some instances, accused persons are detained for several years before the start of the trial.175 At his initial appearance before the Trial Chamber, the accused must be informed that within thirty days, he will be called upon to enter a plea of guilty or not guilty on each count. The accused may request to enter a plea of guilty or not guilty immediately.176 The guilty plea must be voluntary, informed and non-equivocal. There must be sufficient factual basis for the crime and the accused’s participation in it “either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case”.177 An equivocal or ambiguous declaration of the accused may affect the validity of the plea.178 The accused who pleads guilty loses important protections: he relinquishes the presumption of innocence, forfeits the right to be tried, and cannot cross-examine the Prosecution’s witnesses. Neither the Statutes nor the Rules provided for

175

See for example the case of six accused persons tried jointly in the “Butare case” (ICTR), below at 58 and note 222. 176 If the accused does not enter a plea during the initial or any further appearance, the Trial Chamber enters a plea of not guilty on the accused’s behalf (Rule 62 of both Tribunals). Under the Rome Statute, the Trial Chamber may accept the plea of guilty and convict the accused, but it may, even if the accused pleaded guilty, order the trial to be continued under ordinary trial procedures. 177 Rule 62bis (ICTY only). See Claude Jorda and Jérôme de Hemptienne, Un Nouveau Statut pour l’Accusé dans la Procédure du Tribunal Pénal International pour l’ex-Yougoslavie, in ESSAYS ON THE ICTY PROCEDURE AND EVIDENCE IN HONOUR OF GABRIELLE KIRK McDONALD, Kluwer Law International (2001), at 216 (hereinafter “ESSAYS ON THE ICTY PROCEDURE”). In the Erdemovic case, the Trial Chamber held that “[t]he plea must be made voluntarily and in full cognisance of the nature of the charge and its consequences” Prosecutor v. Erdemovic, ICTY case No. IT-96-22-T, Sentencing Judgement, 5 March 1998, para. 11 (hereinafter the “Erdemovic Sentencing Judgement III”). The plea agreement might not be accepted by the Trial Chamber for reasons pertaining to its conditions or substance. In the Nikolic case “[T]he Trial Chamber raised multiple questions and concerns about various provisions of the plea agreement, particularly that the Prosecutor did not agree to dismiss the remaining charges until the time of sentencing. The Trial Chamber declined to accept the plea agreement and requested that the parties amend the agreement to take into account the observations of the Trial Chamber” Prosecutor v. M. Nikolic, Case No. IT-02-60/1-S, Sentencing Judgement, 2 December 2003, para. 11. See also Prosecutor v. Kambanda, Case No. ICTR-97–23–T, Decision Ordering Continued Detention, 1 May 1998. 178 Erdemovic Sentencing Judgement III, above note 177, para. 14.

the proceedings at the icty and ictr

45

guilty plea negotiations.179 In December 2001, a new ICTY Rule 62 ter was adopted providing that in case of a plea of guilty, the Prosecutor and the defence may reach a plea agreement which is, however, not binding on the Trial Chamber. In the case of a plea of not guilty, a date for the trial is set. After the initial appearance of the accused, and every four months thereafter, a status conference must be convened by a Trial Chamber or a Trial Chamber judge to ensure expeditious preparation for trial. In this context the accused is allowed to raise related issues, including his mental and physical condition.180

5. Defence Related Principles Applying Throughout the Proceedings Under Article 20 of the ICTY Statute and Article 19 of the ICTR Statute: “The Trial Chambers shall ensure that a trial is fair and expeditious and that the proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses”.

In view of its heading “Commencement and conduct of trial proceedings”, this provision, when it can be implemented, applies during all stages of the proceedings. The rights of the accused are explicitly provided for by Article 21 of the ICTY and Article 20 of the ICTR. Several Rules supplement or specify the basic safeguards granted to the accused. Together, their aim is to ensure due process of law and provide the guarantees to ensure fundamental fairness and substantial justice. 5.1

Equality of Arms

According to the Statute of the ad hoc Tribunals “All persons shall be equal before the International Tribunal”.181 Equal treatment before the Tribunal 179 In the Annual Report of the ICTY to the Security Council and to the General Assembly, it was stated that “the practice of plea-bargaining finds no place in the rules”; First Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, 28 July 1994 (para. 74), reprinted in ICTY Yearbook 1994; U.N. Doc. S/1994/1007, 29 August 1994. However the first guilty plea in the ICTY was the result of a plea agreement between the Office of the Prosecutor and the accused, where “[t]he parties themselves acknowledge that the plea agreement has no binding effect on this Chamber” (Erdemovic Sentencing Judgement III, above note 177, para. 18). 180 Rule 65bis of the ICTY only. 181 Article 21 (1) Statute of the ICTY; Article 20 (1) Statute of the ICTR. In the Milosevic case, the Appeals Chamber

46

chapter ii

implies, inter alia, that the Prosecutor and the accused must be put on the same footing (the principle of “equality of arms”), without any advantage accruing to the Prosecutor. One application of this principle is the obligation of disclosure of evidence at the pre-trial stage. Within thirty days of the initial appearance of the accused, the Prosecution is obliged to make available to the defence copies of the supporting material which accompanied the indictment when confirmation was sought, together with all prior statements obtained by the Prosecutor from the accused.182 Furthermore, the Prosecution must provide the defence with copies of the statements of all the witnesses that the Prosecutor intends to call to testify at trial as well as copies of all written statements which the Prosecutor intends to submit to the Tribunal in lieu of oral testimony.183 Specifically regarding the ICTY, disclosure of all the mentioned documents by the Prosecution to the defence “. . . once the indictment has been confirmed by a judge, and once the indictment has been filed, the Prosecutor becomes a party before the Tribunal, and thus subject to the power of a Chamber to manage the proceedings, in the same way as any other party before the Tribunal. It is erroneous to suggest that the Prosecutor has an independence in relation to the way in which her case is to be presented before a Trial Chamber which the accused person does not have. The Tribunal’s Statute itself provides to the contrary. Article 21 is stated in uncompromising terms: “All persons shall be equal before the International Tribunal.” That equality is fundamental to the fairness of the trials which are conducted before the Trial Chambers”. Prosecutor v. S. Milosevic, ICTY Case No. IT-02-4-AR73, Reason for Refusal of Leave to Appeal from Decision to Impose Time Limit, 16 May 2002, para. 13. 182 Rule 66 (A)(i) of both Tribunals. Prosecutor v. Kordic & Cerkez, IT-95-14/2, Order on Motion to Compel Compliance by the Prosecutor with Rules 66(A) and 68, 26 February 1999. See Vladimir Tochilovsky, Prosecution disclosure obligations in the ICTY and ICTR, Guest Lecture Series of the Office of the Prosecutor, 23 July 2004. On disclosure of prior statements, see Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Decision on the Defence Motion for Sanctions for the Prosecutor’s Failure to Comply with Rule 66(A) of the Rules and the Decision of 27 January 1997 Compelling the Production of All Statements of the Accused, 15 July 1998. Similarly, recordings of interviews of the suspect by the Prosecutor are to be disclosed; see Prosecutor v. Cermak & Markac, ICTY Case No. IT-03-73-PT, Decision Relating to Prosecutors’ Disclosure Obligation, 26 May 2004. On delayed disclosure for the protection of victims and witnesses, see Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54-T, First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses, 3 May 2002. For the criteria of delayed disclosure for the protection of witnesses, see Prosecutor v. Milutinovic and Others, ICTY Case No. IT-99-37-PT, Decision on Prosecution’s Motion for Protective Measures, 17 July 2003. 183 Rule 66 (A)(ii) of the ICTY only. See below note 380 on Rule 92bis on “Proof of facts other than by oral evidence”. Under Rule 66 (B) of both Tribunals, the defence may request to inspect the books, documents, photographs and tangible objects which are in custody of the Prosecutor which the defence intends to use as evidence at trial. The right and obligation of disclosure applies between the parties in a specific case. This does not signify that material not part of the case is inaccessible. In the Bralo case, the Trial Chamber recalled the principle and the conditions to be fulfilled by the defence to be granted access to material in another case pending before the Tribunal: “CONSIDERING that a party is entitled to seek material from any source to assist in the preparation of its case if the material sought has been sufficiently identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;

the proceedings at the icty and ictr

47

is to be made within a time-limit prescribed by the pre-trial judge and in a language which the accused understands.184 Should the Prosecution have knowledge of exculpatory evidence tending to suggest the innocence or mitigate the guilt of the accused, or affect the credibility of the Prosecution’s evidence, the Prosecutor must disclose such material.185 In the Furundzija CONSIDERING that the Defence has sufficiently identified the material it seeks access to and limited its request to material related to the Accused”. Prosecutor v. Bralo, ICTY Case No. IT-95-17-PT, Decision on Access to Confidential Testimony and Documents, 7 March 2005. See also Prosecutor v. Milan Martic ICTY Case No. IT-95-11-PT, Decision on Motion Filed by the Defence of Milan Martic for Access to Confidential Transcripts and Documents, 25 February 2004; Prosecutor v. Hadzihasanovic and Others, ICTY Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002. In the Cermak and Markac case, pursuant to Rule 66 (A)(i) of the Rules, the Prosecutor was required “to provide the Defence inter alia with copies of all prior statements of the accused; and pursuant to Rule 43(vi) audio or video recordings of interviews of a suspect with the Office of the Prosecutor are to be transcribed if the suspect becomes an accused. It is the position, therefore, that disclosure under Rule 66 (A)(i) has not been completed until the Prosecutor provides the Defence with written statements of all the Accuseds’ prior interviews with the Office of the Prosecutor”. Prosecutor v. Cermak and Markac, ICTY Case No. IT-03-73-PT, Decision Relating to the Prosecutor’s Disclosure Obligations, 26 May 2004. 184 Under Rule 66 (A)(ii) of the ICTR, the Prosecutor must provide copies of documents and supporting material no later than 60 days before the date set for the trial, but there is no requirement that the documents be provided in a language the accused understands. If the Prosecution foresees to amend the indictment, “the Accused is not entitled to supporting material for an amended indictment until leave was granted by the Trial Chamber to amend the indictment leading to a further appearance of the Accused to enter a plea on the new charges”. Prosecutor v. Niyitegeka, Case No. ICTR-96-14-I, Decision on the Defence Motion for Disclosure of Evidence, 4 Feb. 2000, para. 21. For a particular situation of non disclosure, see Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16, Decision on Communications Between the Parties and their Witnesses, 21 September 1998, where the Trial Chamber considered “that Defence Counsel has raised a genuine issue of importance since the aforementioned instances (evidence being adduced in court as a result of out-of-court communications between the Prosecutor and its witnesses during breaks in the witnesses’ testimony) have posed a problem for Defence counsel in that it has led to their being confronted during the trial with evidence which had not previously been disclosed to them”. For disclosure of documents confiscated by the Registrar, see Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21, Judgement, 16 November 1998. 185 Rule 68 of both Tribunals. The obligation of the Prosecution to disclose exculpatory evidence means that if evidence of this nature came to the knowledge of the Prosecutor during the investigations, he must disclose it. In the Kordic case, the Appeals Chamber stated: “Rule 68 of the Rules has an important function as it requires the Prosecution to disclose exculpatory material “because of its superior”—and sometimes even sole—“access to (this material)”. The Prosecution’s obligation pursuant to Rule 68 of the Rules to disclose exculpatory material continues during the post-trial stage and proceedings before the Appeals Chamber (footnote omitted) Prosecutor v. Kordic, ICTY Case No. Case No. IT-95-14/2-A Decision on Appellant’s Notice and Supplemental Notice of Prosecution’s Non-Compliance with its Disclosure Obligation under Rule 68 of the Rules, 11 February 2004, para. 17.

48

chapter ii

case, the Trial Chamber ordered the trial to be reopened since the Prosecution had failed to disclose to the defence, documents relating to one of its witness’s mental health.186 The Rules provide certain exceptions to the principle of disclosure.187 Under Rule 70, internal documents connected to the investigation and confidential information provided to the Prosecutor, are part of the material not subject to disclosure. If the person who provided the information agrees to its disclosure, the Prosecutor is entitled to use it as evidence, but the provider of the evidence may not be summoned as a witness. In such a case, the only means available to the defence is to challenge the Prosecutor over the material that is to be turned over. This provision is problematic on two counts: a) it grants an advantage to the Prosecution and is therefore inconsistent with the principle of equality enshrined in the Statute. The consequences of this provision are far-reaching as the right of the accused to a fair trial may be undermined; b) read In the context of the ad hoc Tribunals, the Prosecutor is not obliged to actively seek exonerating circumstances, this burden rests upon the defence. However, evidence known to the Prosecutor which tends to suggest the innocence or to mitigate the guilt of the accused has to be disclosed to the defence. In the Krstic case (Prosecutor v. Krstic, Case No: IT-98-33-A, Judgement, 19 April 2004), the Appeals Chamber stated that “The disclosure of exculpatory material is fundamental to the fairness of proceedings before the Tribunal” (para. 180). The difficulty is that unless the defence can show abuse of discretion, it is for the Prosecutor to determine whether or not evidence is exculpatory as the ICTY and ICTR Appeals Chamber recalled in several cases. For the ICTR, see Prosecutor v. Musema, ICTR-96-13-A, Arret (“Defence Motion Under Rule 68 Requesting the Appeals Chamber to Order Disclosure of Exculpatory Material and for Leave to File Supplementary Grounds for Appeal”), 18 May 2001; Prosecutor v. Rutaganda, ICTR-96-3-A, Décision Relative à la Requête Urgente de la Défense en Communication et Admission de Moyens de Preuve Supplémentaires et Ordonnance Portant Calendrier, 12 décembre 2002. For the ICTY, see Prosecutor v. Blaskic, ICTY Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 December 2000; Prosecutor v. Kvorka and Others, ICTY Case No. IT-98-30/1-A, Decision, 22 March 2004. On this issue, there are substantial differences between the common law and the civil law systems. In the latter, the investigative judge conducts the investigations and seeks all evidence, incriminating and exonerating, both must be included in the criminal dossier. 186 Prosecutor v. Furundzija, ICTY Case No. IT-95-17/1-T, Decision, 16 July 1998. The Trial Chamber concluded inter alia, that there had been serious misconduct on the part of the Prosecutor. In the Kupreskic case (above note 184), the Trial Chamber “noted that the Prosecutor of the Tribunal is not, or not only, a Party to adversarial proceedings but is an organ of the Tribunal and an organ of international criminal justice whose object is not simply to secure a conviction but to present the case for the Prosecution, which includes not only inculpatory, but also exculpatory evidence, in order to assist the Chamber to discover the truth in a judicial setting (para ii ). 187 The Prosecutor may apply to the Trial Chamber for relief from the obligation to disclose where disclosure may prejudice further investigations, be contrary to the public interest or affect security interests of any state (Rule 66 (C) of both Tribunals). The Prosecutor may, under given circumstances, apply for an order of non-disclosure of the identity of a victim or witness (Rule 69 (a) of both Tribunals). The ICTR Rules stipulate that “either of the parties may apply to the Trial Chamber” for such an order.

the proceedings at the icty and ictr

49

together, Rule 70 and Rule 67 (C) are more favourable to the Prosecutor who may withhold information from the defence under Rule 70, whereas if the defence uses its right to inspect the documents of the Prosecutor, the latter “shall be entitled to inspect any books, documents, photographs and tangible objects . . .” in the custody or control of the defence. ‘Any’ includes those exonerating the accused.188 The advantage, again, is given to the Prosecutor, and it jeopardizes the right to remain silent and the right against self-incrimination. There is no obligation of disclosure189 imposed on the defence unless it offers a defence of alibi or any special defence such as diminished or lack of mental responsibility.190 Under Rule 68bis of the ICTY, the pre-trial judge, or the Trial Chamber may impose sanctions on any party in case of failure to comply with disclosure obligations. In the preparation of the case, “equality of arms” seems to be a theoretical rather than an applicable principle. The contention here is not that there should be absolute equality of means and resources between the Prosecution

188 Under Rule 97 of both Tribunals, there is one category of information, which is not subject to disclosure to the Prosecution, namely communication between lawyer and client unless the latter consented or has voluntarily disclosed its content to a third party. On the matter of access to confidential material, see Prosecutor v. Blaskic, ICTY Case No. IT-9514-A, Decision on the Prosecution’s Motion for Clarification of the Appeal’s Chamber Decision dated 4 December 2002 on Pasko Ljubibi’s Motion for Access to Confidential Material, Transcripts and Exibits in the Blaskic Case, 8 March 2004; and ibid., Decision on Joint Defence Motion of Enver Hadzihasanovic and Amir Kubura for Access to Further Confidential Materials in the Appeal Proceedings of the Blaskic Case, 3 March 2004. 189 Under Rule 67(a)(i) (Reciprocal Disclosure), the Prosecutor must notify the defence of the names of the witnesses that he intends to call at trial. This obligation is not reciprocal as the defence is not obliged to disclose its witness’s names to the Prosecution; Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-PT, Decision on the Applications filed by the Defence for the Accused Zejnil Delalic and Esad Landzo on February 14, 1997 and February 18, 1997 respectively, 21 February 1997. 190 Rule 67 (A)(ii)(a) of both Tribunals. If the defence intends to offer the defence of alibi, it must specify the following: “the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of any witness and any other evidence upon which the accused intends to rely to establish the alibi”. If the defence intends to offer any special defence, the notification to the Prosecutor must contain: “the names and addresses of witnesses or any other evidence upon which the accused intends to rely to establish the special defence” (Rule 67(A)(ii)(b) of both Tribunals). For the standard of proof for an alibi, see Niyitegeka v. Prosecutor, Case No. ICTR-9614-A, Judgement, 9 July 2004, para. 57 to 64. See also Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement and Sentence, 27 January 2000, where the Court held that “In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful” (para. 108).

50

chapter ii

and the defence, but a defence counsel should at least be provided with the necessary means to prepare the case, be granted freedom of movement, have access to the site of the crime alleged in the indictment, and be in a position to request the necessary documents rather than to depend on luck or on favours. In the case of Kayishema, the Prosecutor had access to the site (obviously this should be so), whereas counsel for the accused was denied access by the Rwandan authorities.191 The affirmations of the Prosecutor could therefore not be verified nor challenged by the defence. Regarding the co-operation available to the sides in the preparation of the case, the principle of “equality of arms” seems to have been overlooked and discarded from a defence perspective. The Statutes of the ICTY and of the ICTR contain explicit provisions regulating the status, privileges and immunities of the Judges, the Prosecutor, the Registrar192 and their respective staff, whereas other persons required at the seat of the International Tribunal are accorded the treatment “necessary for the proper functioning of the International Tribunal”.193 The status of the defence counsel before the ICTY is dealt with by the Headquarters Agreement between the UN and the Netherlands, and an agreement between the UN and Tanzania provides for the status of the defence counsel before the ICTR,194 but the crimes within the jurisdiction of the ICTY, were not committed in Netherlands or in Tanzania but in the territory of other sovereign states. The Tribunals are based for the most part on the adversarial system in which the parties play a predominant role in the proceedings.195 The Prosecutor is not 191 Prosecutor v. Kaiyshema and Ruzindana, Case No. ICTR-95-1-T, Judgement and Sentence, 21 May 1999. It should be noted that investigators where made available to the defence; whether an investigator is competent to find exculpatory evidence cannot be taken for granted. In any case, the Trial Chamber was satisfied that “all of the necessary provisions for the preparation of a comprehensive defence were available, and were afforded to all Defence Counsel in this case” (para. 63). On this issue, the Appeals Chamber held that the simple fact for the defence not to enter Rwanda, is not sufficient to establish the existence of inequality of arms between the Prosecution and the defence; Kayishema and Ruzindana, Judgement (Reasons), above note 191. The inequality of arms is essentially, but not exclusively due to the Statute and the Rules which failed, ab initio, to provide rights strictly necessary for the defence to function effectively. Moreover, there seems to be an intrinsic misperception of the role of the defence counsel in the discovery of the truth and of his role in a criminal justice system. 192 The Judges, the Prosecutor and the Registrar enjoy the privileges and immunities accorded to diplomatic envoys under international law (Article 30 (2) Statute of the ICTY, Article 29 (2) Statute of the ICTR). Privileges and immunities accorded to UN officials are also granted to their respective staff; (Article 30 (3) Statute of the ICTY, Article 29 (3) Statute of the ICTR). 193 Article 30 (4) Statute of the ICTY, Article 29 (4) Statute of the ICTR. 194 Article XIX and XXIII of The Agreement Between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal, 27 May 1994, (hereinafter the “Holland Headquarter Agreement”) reprinted in Virginia Morris, Michael P. Sharf, 2 AN INSIDER’S GUIDE TO THE ICTY, above note 62 at 117. 195 In the system of the Tribunals, the judge plays a greater role in determining the truth of the charges than what is generally the case in an adversarial system.

the proceedings at the icty and ictr

51

obliged to actively seek exculpatory evidence; this is the responsibility of the defence.196 Consequently, proper fulfilment of the defence counsel’s duties requires, amongst other things, conducting investigations in the area or at the site of the crimes the accused has allegedly committed. For the discovery of relevant facts and circumstances, and for the gaining of access to the necessary documents, no tools and no rights are afforded to the defence counsel. In contrast, criminal investigations by the Office at the ICTY, multidisciplinary teams are assigned to specific cases, and for the most part, the evidence gathering is done in the former Yugoslavia. Three field offices located in Zagreb, Sarajevo and Belgrade provide support for investigators working in the field.197 At the ICTR, the defence counsel has very little at his disposal to aid him in the preparation of his case, compared to the aid provided to the Prosecution under the Memorandum of Understanding signed between the United Nations and Rwanda allowing the key representatives of the Prosecution to move freely anywhere in the territory of Rwanda, to have access to all necessary documents, “to have direct contact with national and local authorities and to question victims and witnesses”.198 As an arm of the Tribunal, the Prosecutor may seek the assistance of any state concerned commencing from the phase of the investigations.199 The provisions of the Tribunal’s

196 Concerning the collection of evidence, the Rome Statute shifts toward a civil law approach, the Prosecutor is to “extend the investigations to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally” (Article 54 of the Rome Statute). 197 Third Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, UN Doc. S/1997/729, 18 September 1997, 21 (hereinafter the “Third Annual Report of the ICTY”). 198 See Fourth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994; UN Doc. No. S/1999/943, 7 September 1999, para. 118–119 (hereinafter the “Forth Annual Report of the ICTR”). The Fifth Annual Report of the ICTR (above note 107), mentions the significant role played in the arrest of accused persons by the intelligence network established in 1999 by the Office of the Prosecutor of the ICTR, together with the tracking team (para. 135). It is stated that operations were conducted in Belgium, Cameroon, Denmark, France, Kenya, Tanzania, and in the United Kingdom which led to seven arrests; Ibid. 199 Rule 39(iii) of both Tribunals. In spite of the obligations of States in this matter, assistance was far from being always accorded to the ICTY Prosecutor. Concerning the ICTR, after a few difficult years where states failed to hand over suspects, the co-operation of states with the Office of the Prosecutor of the ICTR was defined as exemplary. See Fifth Annual Report of the ICTR, above note 107, para. 135. See also Fourth Annual Report of the ICTR, above note 198, para. 59. The duty to co-operate is reiterated in Article 29 of the ICTY Statute and Article 28 of the ICTR Statute which provide that States shall co-operate with the International Tribunal in the investigation and Prosecution

52

chapter ii

Statute are indeed valuable to the Prosecution in the investigation and search for evidence. The defence however, which to no lesser extent than the Prosecutor seeks to establish the truth, has no recognized right for the fulfilment of his/her obligations. In his opening statement, Mr. Wladimiroff, lead counsel in the Tadic case, related to this issue as follows: “The Defence has no power whatsoever to enlist anyone’s co-operation in providing relevant facts. The Defence’s activities preceding the trial depends solely upon the voluntary co-operation of others . . . the Tribunal and the Prosecution knew that the Defence would be working in a procedural vacuum; that the Defence had to prepare a case without a single legal instrument to support it. Everything, therefore, that the Defence has been able to achieve so far is the result of our own negotiations with authorities and individuals and not of any provision of the Tribunal. In the weeks to come we shall see how this lack of equality of arms at the pre-trial stage affects the trial itself ”.200

Until 2002, there was no structure whatsoever available for the defence. The absence of appropriate provisions in the Statute or in the Rules, and the absence of independent office of the defence to provide support and institutional protection of the rights of the defence, were serious shortcomings.201 Its consequences go far beyond simple difficulties in the defence’s functioning, it may undermine the right of the accused to an expeditious trial, or even harm the defence’s ability to defend the accused effectively. The lack of support for the defence to permit access to given areas or witnesses for example, leads it in the best scenario, to seek additional time to prepare the case and consequently delays the trial. The alternative would be to renounce evidence that might be vital in the determination of the case. In other of persons accused of committing serious violations of international humanitarian law, states are to comply with requests or orders issued by the Trial Chamber to identify and locate persons, to take testimony and produce evidence, to assist in the service of documents, to arrest or detain persons, to surrender or transfer the accused to the International Tribunal. 200 Prosecutor v. Tadic, ICTY Case No. IT-94-1, Transcript of Hearings, 7 May 1996, at 64–65. Tadic was charged with grave breaches of the Geneva Convention of 1949, violations of the laws and customs of war, and of crimes against humanity. 201 The Association of Defence Counsel Practicing before the International Tribunal for the Former Yugoslavia (ADC-ICTY), was established under Dutch Law on 20 September 2002, see for its composition, structure, objectives, activities, and recognition. See also amended ICTY Rule 44. An appropriate structure for training attorneys for international criminal cases should be established for defence attorneys representing suspects or accused persons before the ICC in order to provide them with the knowledge needed to represent the suspect or the accused effectively. This is practically the only means to ensure the right to counsel for the accused substantively. It should be noted that the International Criminal Defence Attorney Association (ICDAA), a UN recognized NGO based in Montréal (Canada), started working as of 1997 in order to organize and strengthen the defence and “to build visibility for defence-related issues”; see Elise Groulx, A Strong Defence Before the International Criminal Court, in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, Hans Bevers & Chantal Joubert eds. (2000), at 8.

the proceedings at the icty and ictr

53

instances, evidence might simply not be available. Lack of access to witnesses and evidence constitutes, together with unusual new procedures, one of the major challenges facing the defence counsel in ICTY and ICTR trials. Defence counsel may file a motion requesting a Trial Chamber to issue an order to a state or a witness. Besides the fact that there is no effective enforceability of such orders, Rule 54 of the ICTY explicitly states that an application for an order directed to states for the production of documents can be rejected if the Trial Chamber considers the document or information irrelevant to any matter at issue in the proceedings or “not necessary for the determination of any such matter”. Furthermore, under Rule 54 (ii) of the ICTY, such a motion may be rejected if “no reasonable steps have been taken by the applicant to obtain the documents or the information from the State”. The defence has therefore the duty to try to obtain the necessary documents directly from the state concerned. However, no means were provided to enable it to fulfil this duty. 5.2

A Fair and Public Hearing

Under the Statute of both ad hoc Tribunals: “In the determination of charges against him, the accused shall be entitled to a fair and public hearing”,202 which is an inseparable part of a fair trial. Seen from the aspect of the rights of the accused, a fair hearing is one where the accused’s rights are upheld. In most instances this will be the case when the hearing is held before a Tribunal composed of competent and impartial judges. Under the Statutes of both Tribunals “[t]he judges shall be persons of high moral character, impartiality and integrity”.203 The judge’s competence is determined 202

Article 21 (2) Statute of the ICTY; Article 20 (2) Statute of the ICTR. On the ICTY and the right to a fair trial, see Anne-Marie La Rosa, Réflexions sur l’Apport du Tribunal Pénal pour l’Ex-Yougoslavie au Droit à un Procès Equitable, R.G.D.I.P. (1997 # 4); at 945. For a different view, see Scott T. Johnson, On the Road to Disaster: the Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 International Legal Perspectives (1998), at 111. 203 Article 13 (1) Statute of the ICTY; Article 12 (1) Statute of the ICTR. Pursuant to the same Articles, the Judges qualified are those “who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law”. The ICTY Chambers are composed of sixteen permanent and nine ad litem judges (fourteen judges compose the ICTR chambers), the requirement of independence applies to all of them no two judges may be nationals of the same State. The ICTY Trial Chambers are composed of three permanent judges and a maximum of six ad litem judges, whereas the ICTR Trial Chambers are composed of three judges. Seven permanent judges are members of the ICTY Appeals Chamber, seven judges serve at the ICTR Appeals Chamber (Article 12, Statute of the ICTY, Article 11, Statute of the ICTR). On the issues whether to continue a part-heard case with a substitute judge or to restart the trial after one of the judges withdrew, see Prosecutor v. Krajisnik, ICTY Case No. IT-00-39-T,

chapter ii

54

on the basis of their qualifications in their respective countries, and due account is taken of the experience of the judges in specific branches of law. Concerning the right to a ‘public’ hearing, in principle all proceedings before the Trial Chambers of the ad hoc Tribunals are to be held in public “unless otherwise provided”.204 There are several reasons why the Trial Chamber may order session to be held in camera.205 5.3

The Presumption of Innocence

The Statutes of both Tribunals provide that the accused shall be presumed innocent until proven guilty.206 The accused who pleads guilty at his initial appearance is deemed to have renounced the right that his guilt be proven in a trial. The presumption of innocence ends once it is established that his plea of guilty was made voluntarily and in full cognisance of the nature of the charge and its consequences. Where an accused has pleaded not guilty and the trial is held, it is only at the stage of the conviction that it becomes known whether guilt was in fact proven. The detention of the accused appears incompatible with the presumption of innocence that is clearly stated in the Statutes of both Tribunals. By international standards, pre-trial detention is the exception to the general rule in favour of freedom. Until its amendment, Rule 65 of both Tribunals provided that “[r]elease may be ordered by a Trial Chamber only in exceptional circumstances”.207 Even after its

Decision Pursuant to Rule 15bis (D), 16 December 2004; or where a judge was not reelected, see Prosecutor v. Bagasora, Case No. ICTR-96-7-T, Decision on Continuation or Commencement de novo of the Trial, 11 June 2003. 204 Rule 78 of both Tribunals. 205 Rules 75 and 79 of both Tribunals. See below Chapter IV.1. 206 Article 2 1(3) Statute of the ICTY; Article 20 (3) Statute of the ICTR. In the Brdjanin case, the Chamber emphasized that the presumption of innocence “. . . places on the Prosecution the burden of establishing the guilt of the Accused, i.e. the burden of proving all the facts and circumstances which are material and necessary to constitute the crimes charged and the Accused’s criminal responsibility. That burden remains upon the Prosecution throughout the entire trial; it never changes”. Prosecutor v. Brdjanin, ICTY Case No. IT-99-36-T. Judgement, 1 September 2004, (para. 22). 207 Rule 65 (B) before its amendment. Provisional release was granted in very rare cases such as for instance, a state of health incompatible with any form of detention. Proof of the exceptional circumstances rested on the defence. The judges considered that: “. . . in certain circumstances, the gravity of the offence may justify pre-trial detention and the onus of showing exceptional circumstances to qualify for release is shifted to the accused . . . Such an exception to the general rule is particularly opposite in cases before the International Tribunal, where accused persons are charged with very grave crimes, and in view of the unique circumstances under which the International Tribunal operates. . . .” Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-T, Decision on a Motion for Provisional Release Filed by the Accused Esad Landzo, 16 January 1997, para. 26 (hereinafter “Motion for Provisional Release”).

the proceedings at the icty and ictr

55

amendment by the ICTY,208 pre-trial detention remained the principle, provisional release the exception. However, the amendment brought the pre-trial detention provision closer to international standards providing that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial . . .”.209 The gravity of the crimes for which the accused is being prosecuted, the absence of a police force that can exercise control over the accused and the reliance on states to turn over the accused, have been considered justifications for the provisions of Rule 65 on preventive detention. It is a fact that some states failed to comply with orders of the international Tribunals during the first years of the Tribunal’s existence. The situation has significantly improved and provisional release is granted more frequently not without guarantees and conditions ensuring the return of the accused when required by the Trial Chamber.210 The right to be presumed 208

ICTY Rule 65 (B) was amended on 17 November 1999 (ICTY Doc. No. IT/32/ Rev/17). Provisional release could still be ordered only in exceptional circumstances. ICTY Rule 65 (B) was further amended on 13 December 2001, and that “[r]elease may be ordered by a Trial Chamber only in exceptional circumstances” was deleted. On 27 May 2003, the same provision was deleted from ICTR Rule 86 (B). 209 Article 9 (3) of the ICCPR, above note 112. 210 The conditions set by the Trial Chamber in case of provisional release vary from case to case. In the Stanisic case for example, beyond the instructions issued national authorities elsewhere in the decision, the Trial Chamber decided that “d) during the period of his provisional release, the Accused shall abide by the following conditions the authorities of the governments of Serbia and Montenegro and the Republic of Serbia, including the local police, shall ensure compliance and with such conditions: (i) to remain within the confines of the municipality of Belgrade; (ii) to surrender his passport to the Ministry of Justice; (iii) to report each day to the police in Belgrade at a local police station to be designated by the Ministry of Justice; (iv) to provide the address at which he will be staying to the Ministry of Justice and the Registrar of the International Tribunal before leaving the United Nations Detention Unit in The Hague; (v) to consent to having the Ministry of Justice check with the local police about his presence and to the making of occasional, unannounced visits upon the Accused by the Ministry of Justice or by a person designated by the Registrar of the International Tribunal; (vi) not to have any contact with the co-accused in the case; (vii) not to have any contact whatsoever or in any way interfere with any victim or potential witness or otherwise interfere in any way with the proceedings or the administration of justice; (viii) not to discuss his case with anyone, including the media, other than with his counsel; (ix) continue to cooperate with the International Tribunal; (sic) to comply strictly with any requirements of the authorities of Serbia and Montenegro and the Republic of Serbia necessary to enable them to comply with their obligations under this Order and their guarantees; (xi) to return to the International Tribunal at such time and on such date as the Trial Chamber may order; and (xii) to comply strictly with any further Order of the Trial Chamber varying the terms of or terminating his provisional release . . .”

chapter ii

56

innocent applies throughout the proceedings. This presumption has important implication at a later stage as the onus is placed on the Prosecutor to prove the guilt of the accused beyond reasonable doubt.211 5.4

The Minimum Guarantees of the Accused

Under Article 21 of the ICTY Statute and Article 20 of the ICTR Statute, in the determination of any charge against the accused he is entitled to the following minimum guarantees: – to be informed promptly and in detail of the nature and cause of the charge against him in a language which he understands; – to have adequate time212 for the preparation of his defence and to communicate with the counsel of his own choosing;213 Prosecutor v. Stanisic, ICTY Case No. IT-03-69-PT, Decision on Provisional Release, 28 July 2004, para 43. 211 See below Chapter IV.5. 212 There is no set standard of what constitutes adequate time for the preparation of the accused’s defence, this depends on the particular situation of the case; Prosecutor v. Delalic, Decision on the Application for Adjournment of the Trial Date, ICTY Case No. IT-9621, 3 Feb. 1997. In the Mrksic case, the name and statements of five witnesses were to remain undisclosed until 30 days prior to the beginning of the trial (Prosecutor v. Mrksic and Others, ICTY Case No. IT-95-13/1-PT, Decision on Confidential Prosecution Motions for Protective Measures and Nondisclosure and Confidential Annex A, 9 March 2005); whether the time left before beginning of the trial for the preparation of the defence can be known by the defence only once the content of the witness’s names and statements are revealed. In the Bagasora case, The Trial Chamber held (i) That the non-disclosure of the witnesses statements by the Prosecution to the Defence Counsel is violative of rule 66 (A) (i) of the Rules. The mere fact of filing a motion by the Prosecution for protective measures for her witnesses does not in any way relieve it of the obligations for disclosure to the defence under rule 66 (A) (i) of the Rules. Prosecutor v. Bagasora, Case No. ICTR-96-7-T, Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997. See Eric Mose, Impact of human rights conventions on the two ad hoc Tribunals, in HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE DOWNTRODDEN, Morten Bergsmo (ed.), Essays in Honour of Asbjorn Eide, Martinus Nijhoff Publishers (2003), at 194. 213 Difficulties may arise concerning the choice of the assigned counsel. For example, during the period of detention, the accused Akayesu requested and was granted the right to change counsel several times. In some instances, detainees who requested counsel were being assigned a counsel who was discharged in another case before the Tribunal for misconduct or who falls outside the applicable guidelines for assignment of defence counsel to indigent accused; ICTR/INFO-9-2-148, 30 October 1998, at 1. In the Kupreskic case, on the basis of information received from the media, the Registrar withdrew the assignment of defence counsel for all accused. An auction of paintings by Croat detainees organised by a Croatian support group, had produced considerable revenues, and the Registrar concluded that the accused could afford to pay for their own counsel. The accused claimed that they had received no more than pocket money for the detention unit and support for their families. The Trial Chamber reversed the decisions since the burden of proof for the fact that the accused were no longer indigent was on the Registrar, and media reports alone “cannot by themselves be sufficient evidence for a

the proceedings at the icty and ictr

57

– to be tried without undue delay; to be tried in his presence and to defend himself in person214 or through the counsel of his own choice; if he does not have legal assistance, to be informed of this right; if the financial means of the accused are not sufficient to pay for counsel, to have counsel assigned to him215 at no cost; – to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf; – to have free assistance of an interpreter if the accused does not understand or speak the language used in the International Tribunal; – not to be compelled to testify against himself or to confess guilt. i) The right to be tried without undue delay—Under the Statute, the right to be tried without undue delay constitutes one of the minimum guarantees to which the accused is entitled.216 Pursuant to Article 9 (3) of the Covenant

court of law” Prosecutor v. Kupreskic and Others, ICTY No. Case IT-95-16, Decision on the Registrar’s Withdrawal of Assignment of Defence Counsel, 3 December 1999 (para. 7). See also Prosecutor v. Krajisnik, ICTY Case No. IT-00-39-PT, Decision on the Defence’s Motion for an Order setting Aside the Registrar’s Decision Declaring Momcilo Krajisnik Partially Indigent for Legal Aid Purposes, 20 January 2004. The decision of the Registrar was quashed. The qualifications and duties of the counsel chosen by a suspect or an accused are set out in Article 44 of the Rules of both Tribunals. His power of attorney has to be filed with the registrar without delay. The qualifications required to represent a suspect or an accused before the ICTY of the ICTR, are in addition to speaking one or both of the languages of the Tribunal, admission to practice of law in a State, or to be a professor of law. The relevant provisions of the Statute, the Rules of Procedure and Evidence, the Rules Governing the Detention of Persons Awaiting Trial or Appeal (see below note 245), the Host Country Agreement, the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (ICTY Doc. IT/125, 12 June 1997) as well as the “codes of practice and ethics governing their profession” apply in the performance of the duties of counsel (Rule 44 (C)) in both Tribunals. Further, the Directive on the Assignment of Defence Counsel will apply where Counsel was assigned. Compared to the first years of the Tribunal’s functioning, the situation of the defence counsel has improved. See David Tolbert, The ICTY and Defence Counsel: A Troubled Relationship, (The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal for the Former Yugoslavia), 37 New Eng. L. Rev. (Summer 2003), 975; Mark S. Ellis, The Evolution of Defence Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia, (The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal for the Former Yugoslavia), 37 New Eng. L. Rev. (Summer 2003), 949. 214 A suspect or an accused who chooses to conduct his own defence must notify the Registrar without delay (Rule 45 (G)). 215 Rule 45 requires that counsel be assigned to the suspect or the accused. Rule 44 provides the conditions to be fulfilled by counsel, including “reasonable experience in criminal and/or international law” and the willingness to be assigned by the Tribunal (ICTY Rule 45 (B)). The Registrar keeps a list of counsel meeting these criteria. An attorney who speaks the language of the suspect or the accused, but none of the languages of the Tribunal, may be authorized only in particular circumstances. 216 Article 21 (4)(c) of the ICTY; Article 20 (4)(c) of the ICTR. See ICCPR, above note 112.

58

chapter ii

on Civil and Political Rights “Anyone arrested or detained on a criminal charge . . . shall be entitled to trial within a reasonable time or to release”. The Human Rights Committee interpreted the right of the accused to be tried without undue delay as applying as of the beginning of the detention and not only as of the start of the trial and held that “[u]nreasonable delay during the course of the trial is just as much a violation of these standards as a delay in the beginning of the trial”.217 Neither the Statutes nor the Rules of the Tribunals provide for fixed time limits within which an accused person is to be tried. The reasonableness of the waiting-period and of the duration of the trial has consequently to be assessed on a case-by-case basis. In the Kamuhanda case,218 the Trial Chamber granted the defence motion requesting a separate trial for the accused and held that “insisting in trying Jean de Dieu Kamuhanda jointly with his co-accused would probably result in a significant delay in the start of his trial, which would violate his fundamental right to be tried without undue delay”.219

In the Kupreskic case, the Trial Chamber rejected the defence motion for separate trials and held that the right of those accused to a fair and expeditious trial would not be advanced by ordering separate trials.220 In the Delalic case, the Trial Chamber underlined the difficulties caused by separate trials, including the long delays.221 However, in other instances for example the “Butare” case, requests for separate trials were denied, as a joint trial might cause longer delays.222 Even in the absence of any fixed 217 Centre for Human Rights, Human Rights and Pre-trial Detention, A Handbook on International Standards Relating to Pre-trial Detention, Professional Training Series No. 3, United Nations, 1994 at 17 (hereinafter “Human Rights and Pre-Trial Detention”). See also Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment, A/43/173, 9 December 1988, principle 38. In reviewing the national legislation of a country, the Committee of Human Rights found that a six-month limit on pre-trial detention was too long to be compatible with Article 9 (3) of the ICCPR. Official Records of the General Assembly, Forty-Fifth Session, Supplement No. 40 (A/44/40), Vol. I, para. 47. 218 Prosecutor v. Kamuhanda, Decision on the Motion for Severance and Separate Trial Filed for the Accused, Case No. ICTR-99-54-T, 7 November 2000. 219 Ibid., para. 6. On the amendment of indictments leading to undue delay of the trial, see Prosecutor v. Bizimungu and Others, Case No. ICTR-99-50-AR5, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004, which was rejected by the Trial Chamber on the basis of prejudice to the Defence and upheld on appeal. 220 Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16-PT, Decision on Defence Motion For Separate Trials, 15 May 1998. 221 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-T, Decision on the Motions for Separate Trials Filed by the Accused Delalic and the Accused Mucic, 25 September 1996. 222 For reasons inherent in the burden of the Trial Chamber caused by pre-trial motion, due to change of defence counsel by two of the accused, pending motions filed by some

the proceedings at the icty and ictr

59

time limit in the Statute or Rules and whatever the advantages of joint trials may be, a waiting-period of five years for one of the six accused and of four years for three of the accused is not compatible with the right to be tried without undue delay.223 The appointment of ad litem judges and the granting of interim release not only in exceptional circumstances (ICTY only), are means to shorten the waiting periods for the accused. Stricter adherence by the Office of the Prosecutor’s to his disclosure obligation, would constitute a significant contribution to the same end. The extent of the right of the accused to be tried in his presence was clarified by the Trial Chamber in the Blaskic case.224 The issue was raised in the context of a Prosecutor’s motion requesting an ex parte hearing in order to protect the witnesses. The Prosecution submitted that the accused’s right to be present at the trial did not constitute a right to be present at every aspect of the trial. The Trial Chamber denied the motion on the grounds that an ex parte hearing was not consistent with the rights of the accused under Rule 75 (A).225 The Chamber considered that “The right of the accused to be present at his trial obviously includes every one of its stages, commences from the time the indictment is served, and must be respected both during preliminary proceedings and the trial itself before the appropriate court”.226 of the accused and not related to other accused, the start of the trial was delayed for years. The trial started on 12 June 2001 after the accused Kanyabashi (ICTR-96-15) had already been in detention five years, the accused Nsabimana (ICTR-97-29), Nyiaramasuhuko (ICTR97-21) and Ntahaboli (ICTR-97-21) had been detained for over four years, Nteziryayo (ICTR-97-29) and Nzirorera (ICTR-98-44) had been in detention for three years. See ICTR Detainees at the ICTY Website . See also Fifth Annual Report of the ICTR, above note 107, para. 8. At the ICTY, some defendants have been in detention awaiting trial over two and a half years; Patricia M. Wald, To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings, 42 Harv. Int’l L.J. (2001), at 536 (hereinafter “The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings”). 223 Amnesty International related to the long pre-trial detentions in the Summary of its April 1998 Report as follows: “Some of the accused have been in custody for more than 30 months and some may spend several years in detention before their trials are complete, potentially compromising their right under international law to be tried within a reasonable time. Some of the delays are the responsibility of the Tribunal, including delays in indicting suspects, delays in hearing applications for orders and the fact that the Tribunal was in recess over a 12 month period in 1997–1998” (emphasis of Amnesty International). Amnesty International, International Criminal Tribunal for Rwanda, Trials and Tribulations, above note 61. 224 Prosecutor v. Blaskic, ICTY Case No. IT-95-14-PT, Decision of Trial Chamber I on the Application of the Prosecutor dated 24 June and 30 August 1996 in Respect of the Protection of Witnesses, 2 October 1996 at 4 (hereinafter “Decision of Trial Chamber I”). 225 Ibid. 226 Ibid. Mid-trial ex parte application by the prosecution imply that the accused and counsel are ushered out of the court-room for reasons they are not informed of and can therefore not challenge.

60

chapter ii

(ii) Under the Statute of both Tribunals,227 the right of the accused to have counsel assigned to him in case of indigency constitutes a minimum guarantee. The determination of indigency should consequently trigger the right to have counsel appointed, but under the same provision, legal assistance is assigned “in any case where the interests of justice so require”. It is not clear whether the interests of justice could set further conditions for the assignment of counsel. During the first seven years of the ICTY and the first six years of the ICTR, the counsel approval requirements did not ensure that the indigent defendants received competent representation. There was no requirement that defence attorneys on the Registar’s list demonstrate any experience in criminal law, international law or international humanitarian law. However, ICTY Rule 45 as amended,228 requiring reasonable experience in criminal and/or international law, constitutes an improvement. Likewise ICTR Rule 45 as amended229 requires ten years ‘relevant experience’ but there is still no requirement in the Rules of the Tribunals that an assigned counsel show any knowledge of international humanitarian law. On the procedural level, some degree of knowledge of the procedure in common law systems should be a requirement. (iii) One of the minimum guarantees accorded to the accused under the Statutes is his right “to examine, or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.230

Rule 85 (A) entitles each party “to call witnesses and present evidence”. Rule 85 (B) provides that “examination in chief, cross-examination and reexamination shall be allowed in each case”. The rights provided by Rule 85 are not made subject to any condition. Under Rule 69 (C), the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for the preparation of the defence. The essential issue is whether it is possible to reconcile inconsistencies between the defendant’s rights and the victims’ and witnesses’ right to be protected pursuant to Rule 69 and Rule 75 respectively. Under Rule 69 (A) the Prosecution may, in exceptional circumstances, request to withhold the identities of witnesses “who may be in danger or at risk, until such person is brought under 227

Article 21 (4)(d) Statute of the ICTY, Article 20 (4)(d) Statute of the ICTR. ICTY Doc. IT 32.Rev. 18, 14 July 2000. 229 ICTR Rule 45 (D) as amended on 21 February 2000. 230 Article 21 (4)(e) Statute of the ICTY, Article 20 (4)(e) Statute of the ICTR. Witnesses for the defence are entitled to protection to the same extent as witnesses for the Prosecution. See, e.g., Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Decision on the Defence Motion to Protect Defence Witnesses, 16 August 1996. 228

the proceedings at the icty and ictr

61

the protection of the Tribunal”. Although rare, the Prosecution’s motions for non-disclosure of the identity of certain witnesses have been granted on a permanent basis.231 Of the four witnesses who have been granted anonymity by the Trial Chamber, ultimately only one witness testified under the conditions of anonymity.232 In that case, the accused was deprived of his right to cross-examine that witness; there was no way to demonstrate, for instance, that the declarations were erroneous, unreliable, prejudiced, inconsistent or hostile.233 This should in no way imply that the rights and the interests 231

Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995 in 1 JUDICIAL REPORTS, above note 62 at 199. In the latter case, amongst other protective measures, anonymity for four witnesses was granted. In the Blaskic case, although the Prosecutions’ motion was denied, the Tribunal reviewed which factors must be met for a grant of anonymity: “. . . There must be real fear for the safety of the witness or her or his family . . . the testimony of the particular witness must be important to the Prosecutor’s case . . . the Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy . . . the ineffectiveness or non-existence of a witness protection program is another point . . . that has considerable bearing on any decision to grant anonymity . . . Finally, any measure taken should be strictly necessary. If a less protective measure can secure the required protection, that measure should be applied”. Prosecutor v. Blaskic, ICTY Case No. IT-95-14-T, Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, 5 Nov. 1996 para. 62–66. The ICTR ordered a range of measures stopping short of full anonymity, the names of the witnesses were to be disclosed in sufficient time to allow the defence to prepare for trial; Prosecutor v. Rutaganda, ICTR-96-3-T, Decision on the Preliminary Motion by the Prosecutor for Protective Measures for Witnesses, 26 September 1996. 232 Gabrielle Kirk McDonald, Trial Procedures and Practices, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16 at 564–565. On evidence and anonymity of witnesses see below at 000. For various means of protection granted to potential witnesses and to the victim’s (non disclosure of their names, whereabouts, statements and confidential documents to anyone beyond defence counsel, the Court, and the Prosecution ), and in parallel protect the rights of the defence, see Prosecutor v. Cesic, ICTY Case No. IT-95-10/1-PT, Order on Prosecution’s Motion for Protective Measures. 19 July 2002. See also Fatema E. Fallahnejad Burkey, The Prosecutor v. Aleksovsky, 30 May 2001, Judgement on Appeal by Anto Nobilo Against Finding of Contempt: A Critical Analysis of the ICTY Appeals Chamber’s Abandonment of Witness Protection Measures, 82 Wash. U. L. Q. (Spring 2004), 297. 233 The consequences which can result from non-disclosure to the defence of the witnesses’ identity became glaringly apparent in the Tadic trial. The Trial Chamber ordered that the name of witness L (Dragan Opacic) not be disclosed to the defence counsel or to the accused until thirty days before the trial date. Further, witness L was granted confidentiality namely, non-disclosure of his name, address and whereabouts to the public or to the media, hearings were to be held in closed sessions, the pseudonym L was to be used in all oral and written proceedings before the Tribunal; Prosecutor v. Tadic, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, ICTY Case No. IT94-1-T, 14 November 1995 in 1 JUDICIAL REPORTS, above note 62 at 327. Witness L was a witness of the Prosecution and testified that he had seen Tadic commit murders, rapes and beatings. The Defence discovered that the witness had lied. The Prosecution withdrew the request for protective measures; Prosecutor v. Tadic, Decision on the Prosecutor’s Motion to Withdraw Protective Measures for Witnesses L, ICTY Case No. IT-94-1-T, 5 December 1996. There was other strong evidence to convict Tadic and the impact of

62

chapter ii

of the victims and witnesses do not merit protection nor that the rights of the accused have priority over those of the former. After all, the Tribunals were established to do justice first and foremost for the victims. In instances where doing justice endangers the victims or exposes them to real fear, or where measures other than non-disclosure of their identity to the accused are insufficient for their protection, alternatives must be found. The real alternative would be to strengthen the witness protection program,234 but until this can be achieved, the Prosecution would have to forego the testimony of a witness whose identity is to remain undisclosed beyond the pre-trial phase. Another yet untried solution that has been proposed is that the Tribunal “. . . allow for the use of statements obtained in evidence at the pre-trial stage, where the defence can be given an adequate and proper opportunity to challenge and question the witness without jeopardizing sufficient and proportional protection for them” (footnote omitted).235

There is no doubt that in the present situation of inadequate funding for more far-reaching protective measures, witnesses may be exposed to significant risks, or refuse to come forth, unless their identity is protected. As a result, some cases of grave violations of international humanitarian law might go unpunished. At this point, the choice seems to be between the latter and the disregard of a fundamental component of the right to a fair trial. (iv) Under the Statute, the accused may not be compelled to testify against himself or to confess guilt.236 The corresponding Rules237 provide that this allowing even temporary anonymity was less detrimental as it might have been in different circumstances. Where other evidence is not so strong, the granting of anonymity may result in a miscarriage of justice. 234 The Security Council acted in the name of the international community when it decided to establish the Tribunals so that the perpetrators of the crimes within the competence of the Tribunals will be brought to justice. This was not intended and cannot be at the moral or physical risk of the victims and witnesses. The funding of an effective witness protection program should be no less obligatory for States than the obligation to comply with the Tribunal’s requests and decisions. 235 Michaïl Wladimiroff, Rights of Suspects and Accused, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 448. 236 Article 21 (4)(g) Statute of the ICTY, Article 20 (4)(g) Statute of the ICTR. In the Naletilic and Martinovic case the Trial Chamber stated that “Article 21 (4)(g) of the Statute provides that no accused shall be compelled to testify against him or herself. Mladen Naletilic and Vinko Martinovic decided not to testify at trial. In line with Article 21(4)(g), the Chamber has not attached any probative value to their decisions”. Prosecutor v. Naletilic and Martinovic, ICTY Case No. IT-98-34-T, Judgement, 31 March 2003, para. 9. 237 Rule 42 (A)(iii), Rule 55, Rule 63, and Rule 90 (E). These Rules are identical for both Tribunals.

the proceedings at the icty and ictr

63

right applies: during the investigation, upon the execution of an arrest warrant, during questioning of the accused by the Prosecutor before or after the initial appearance, and during the trial. Under Rule 42 (A)(iii) in instances where the suspect is interrogated by the Prosecutor, the suspect has to be informed of his right to remain silent prior to questioning. Neither the Statute nor the Rules clarify whether such silence is a factor to be taken into consideration in the determination of guilt or innocence. It is clear however, that the exercise of the right of the accused to remain silent deprives him of a mitigating circumstance in the determination of the sentence.238 There is no indication in the Rules as to whether the right to remain silent applies in cases of questioning by someone other than the Prosecutor of the ICTY, such as persons mandated by the Prosecution to act on its behalf or by representatives of the state authorities.239 There is no sanction, such as exclusion of statements from evidence in circumstances where the suspect was not informed by the prosecuting authorities or the arresting entity of his right against self-incrimination. In the instance where a warrant of arrest is executed by state authorities, the Rules of the Tribunals are more explicit: by means of the statement of rights of the accused attached to the warrant, he must be informed of his rights, including the right to remain silent. If the accused does not waive this right, disregard of the right against self-incrimination by State authorities, will only come to the attention of the Tribunal after incriminating statements have been made by the accused. Whether such self-incriminating statements may be excluded from evidence, remains an open question. However, the ICTY Tribunal found inadmissible a statement obtained by the national authorities in violation of the fundamental rights enshrined in the Statute and the Rules.240 If a warrant of arrest is transmitted to a national authority, an international body or the Prosecutor pursuant to Rule 59bis of the ICTY,241 there is no obligation upon the arresting person or body to inform the accused of his right to remain silent. In this context the accused is not even entitled to a copy of either the indictment or the statement of the rights of the accused. He has to be informed only of the charges against him and of his transferral

238

Pursuant to Rule 101 (B)(II) of both Tribunals, the substantial co-operation with the Prosecutor by the convicted person before and after conviction is a factor to be taken into account by the Trial Chamber in the determination of the sentence. 239 The interrogation of an accused by a state authority is effectuated according to municipal law which does not necessarily provide for the right against self-incrimination. 240 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-T, Decision on Zdavko Mucic’s Motion for the Exclusion of Evidence, 2 September 1997. 241 No such arrest procedure is provided for in the Rules of the ICTR.

64

chapter ii

to the Tribunal. It is only upon transfer that he is to be served with these documents in a language he understands or is able to read.242 Rule 67 on reciprocal disclosure raises difficulties in relation to the right against self-incrimination. If the defence uses its right to inspect the documents of the Prosecutor, the latter has unrestricted access to any document of the defence. Despite the fact that there might be documents in the file of the defence leading to the incrimination or even directly incriminating the accused, such documents are not excluded from inspection by the Prosecutor. Although the obligation of reciprocal disclosure is limited to instances where a defence of alibi or a special defence is offered by the defence, in such cases, the right to remain silent, and consequently the right to a fair trial, is affected. The Statutes of the Tribunals do not leave room for exceptions to the principle that the accused shall not be compelled to testify against himself. Nevertheless, under Rule 90 (E) of both Tribunals, in such cases where a witness objects to making a statement “which might tend to incriminate” himself/herself, “the Chamber may compel the witness to answer the question”. Although the same Rule limits the consequences of the witness’s statement, compelled testimony may not be used against the witness, Rule 90 (E) allows precisely what Article 21 (4)(g) of the Statute of the ICTY and Article 20 (4)(g) of the Statute of the ICTR prohibit.

242 It should be noted that in this instance, an accused person can be taken in to custody and flown to another country without a written document informing him of the fact that he has been accused, of the grounds of the charges, and stating by whom he has been accused.

CHAPTER III

PRE-TRIAL PROCEEDINGS

During the pre-trial phase, the defence, the Prosecutor, or the Trial Chamber on its own motion may raise pre-trial matters. The Statutes of the Tribunals do not contain substantive or procedural guidelines concerning pre-trial issues, and if specific matters are addressed by the Rules, none of the basic documents impose limitations on the type of issues which may be raised. It is at the pre-trial stage that the issue of the attendance of witnesses is to be discussed and the necessary documents are to be secured. A pre-trial matter is brought before a Trial Chamber for consideration by way of motion. The procedural rights and obligations of the parties, the time limits imposed, and the possibility of interlocutory appeal depend on the subject matter of the motion. A request for provisional release may be submitted pursuant to Rule 65. A defined category of preliminary motions may be brought under Rule 72; other motions may be brought pursuant to Rule 73.

1. Pre-Trial Detention and Provisional Release Once the accused has been transferred to the seat of the Tribunal, he is detained in “facilities provided by the host country”, under exceptional circumstances in facilities in another country.243 The Statute of the Tribunals is silent concerning pre-trial detention. Nonetheless, the Secretary General’sReport244 emphasized the importance of ensuring full respect of international human rights standards regarding the rights of the accused at all stages of the proceedings which includes pre-trial detention.245 The detained suspects 243

Rule 64 of both Tribunals. See Report of the Secretary-General Pursuant to Resolution 808, above note 65, para. 106. 245 International standards for the treatment of detained or imprisoned persons can be found in instruments elaborated under the auspices of the United Nations: Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111 (1990); Body of Principles for the Protection of all Persons under Any Form of Detention of Imprisonment, G.A. Res. 43/173 (1988); Standard Minimum Rules for the Treatment of Prisoners (First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. No. 1956.IV.4, and Economic and Social Council Res. 663 C XXIV of July 1957, and 2076 (LXII) of 13 May 1977; see also HUMAN RIGHTS AND PRE-TRIAL DETENTION, A Handbook of International Standards Relating to Pre-Trial Detention, Centre for Human Rights, United Nations 1–6 (1994). 244

66

chapter iii

and accused persons are subject to the Rules Governing the Detention of Persons awaiting Trial before the Tribunal.246 These Rules contain the basic principles, and include provisions regarding the administration and management of the detention facility, the rights of detainees and their removal and transport. Rule 65 (B) establishes criteria authorizing the Trial Chamber to grant provisional release. The four-fold criteria which must be established by the defence for a provisional release to be granted, were enumerated by the Trial Chamber in the Delalic case: “. . . The defence must establish that there are exceptional circumstances, that the accused will appear for trial, and that if released, the accused will not pose a danger to any victim, witness or other person. Additionally the host country must be heard . . . If any of these requirements are not met, the Trial Chamber is not authorized to grant provisional release and the accused must remain detained”.247

Rule 65 (B) of the ICTY was amended and no longer requires a show of ‘exceptional circumstances’, while the other conditions remain unchanged. Several defendants who had surrendered voluntarily and been in detention for two years, were allowed to return to the Republika Srapska.248

246

Pre-trial detention is a matter dealt with for the ICTY by the Rules Governing the Detention of Persons awaiting Trial before the Tribunal or Otherwise Detained on the Authority of the Tribunal, ICTY Doc. No. IT38/REV.7, (hereinafter the “ICTY Detention Rules”); for the ICTR: Rules Governing the Detention of Persons awaiting Trial before the Tribunal or Otherwise Detained on the Authority of the Tribunal, ICTR Doc. No. ICTR/2/L.3, Rule 65 (hereinafter the “ICTR Detention Rules”). At the ICTY, the issue of pre-trial detention has undergone significant changes. In Prosecutor v. Stanisic, (ICTY Case No. IT-03-69-PT, Decision Against on Provisional Release, 28 July 2004), the Trial Chamber noted that the European Court of Human Rights has “repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand” (and citing Ilijkov v. Bulgaria, European Court of Human Rights, Judgement of 26 July 2001, para. 81). See also Prosecutor v. Lazarevic, Case No. IT-03-70-PT, “Decision on Defence Request for Provisional Release”, 14 April 2004. 247 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-T, Decision on Motion for Provisional Release filed by Accused Landzo, 16 January 1997, para. 1. 248 The provisional release was granted after the Republica Srapska provided guarantees that its police would monitor the accused and return them for trial; Prosecutor v. Simic and Others, ICTY Case No. IT-95-9-PT, Decision on Miroslav Tadic’s Application for Provisional Release, 4 April 2000; Prosecutor v. Simic and Others, ICTY Case No. IT-95-9-PT, Decision on Simo Zaric’s Application for Provisional Release 4 April 2000. For other examples where release was granted, see Prosecutor v. Halilovic (ICTY Case No. IT-01-48), the accused was temporarily released on 14 December 2001, and Prosecutor v. Hadsihasanovic and Others, (ICTY Case No. IT-01-47), where the three accused were temporarily released on 13 December 2001; ICTY Press Release 14 December 2001. It should be noted that the accused had voluntarily surrendered to the Tribunal and had provided guarantees and undertakings to uphold the conditions of release. Contrary to the two previously mentioned cases, the four accused were released on 13 December 2001 after a few months of pretrial detention.

pre-trial proceedings

67

ICTR Rule 65 (B) was not amended; consequently the existence of exceptional circumstances are still a condition for temporary release. This rule is inconsistent with the principle that anyone shall be presumed innocent unless proven guilty. Under Rule 65 (C) of both Tribunals, the Trial Chamber may impose conditions for the release of the accused such as the execution of a bail bond as well as other condition the Trial Chamber deems necessary to ensure the presence of the accused for trial and the protection of others. Any decision, whether it authorizes or denies provisional release, is subject to appeal where leave is granted by the Trial Chamber. Under Rule 65 (D) of both Tribunals, application for leave to appeal must be filed within seven days from the date of the challenged decision. Under specific conditions, the ICTY Appeals Chamber may grant provisional release to convicted persons pending an appeal.249 Rule 65 allows for the modification of conditions of detention subject to an order of the President of the Tribunal. 250 Applications for provisional release or modifications of conditions of detention are not limited to the pre-trial phase, they may be filed commencing from the pre-trial phase and “can indeed be brought at any time”.251

2. Pre-trial Orders for the Appearance of Witnesses and the Production of Evidence Pursuant to Rule 54, the Trial Chamber is authorized to issue any pretrial order that is requested by either party or proprio motu “necessary for the investigation or the conduct of the trial”. During the investigation phase and until the initial appearance of the accused, the defence cannot rely on this provision. Although the provision does not explicitly refer to pre-trial orders of the defence, once the accused has appeared before the tribunal,

In the Hadsihasanovic case “Judge Schomburg pointed out that the detention is the exception and release is the rule from a legal perspective which must be applied in all cases . . . The Judges stressed that the provisional release will not influence future rulings”. ICTY Press Release 14 December 2001. See Gregory P. Watson, The Changing Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, (The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Last Decade), New Eng. L. Rev. (Summer 2003), at 881. 249 Rule 65 (I) of the ICTY. There is no equivalent Rule for the ICTR. 250 Prosecutor v. Blaskic, ICTY Case No. IT-95-14-T, Decision of the President on the Defence Motion Filed Pursuant to Rule 64, 17 April 1996. 251 Prosecutor v. Hazim Delic, ICTY Case No. IT-96-21-AR72.4, Decision on Application for Leave to Appeal (Provisional Release), 22 November 1995, para. 22.

68

chapter iii

it is clear that orders necessary for the preparation and presentation of the defence may be requested by either party,252 particularly due to the largely adversarial nature of the proceedings before the Tribunals. Depending on the circumstances of the case, applications may be brought to summon witnesses that refuse to appear and to subpoena the production of documents or other binding orders. The issuing of subpoenae duce tecum253 by the confirming judge in the Blaskic case,254 was the subject of intensive and prolonged litigation. The essential question was whether the Tribunal had the authority to issue compulsory orders to states or state officials. At the request of the Prosecution, subpoenae were addressed to the Republic of Croatia, its Minister of Defence, to the Federation of Bosnia and Herzegovina and the Custodian of the Records of the Central Archive. After the Republic of Croatia challenged the authority of the Tribunal to issue subpoenae duces tecum, the Trial Chamber held that the Tribunal had inherent and express powers to issue such orders and that States and their officials were under an obligation to comply with such subpoenae.255 The Republic of Croatia challenged the orders of the Trial Chamber. The Appeals Chamber quashed the subpoenae addressed to the Republic of Croatia and its Defence Minister256 and ruled that under international law, States cannot be subject to penalties or sanctions imposed by an international court. States can therefore not be subject to subpoenae, which, by their very nature, are issued under threat of sanctions, but they may be addressed by binding orders or requests.257 Concerning individuals acting in their private capacity, the Chamber stated that “[i]ndividuals are 252 See, e.g., Prosecutor v. Tadic, ICTY case No. IT-94-1-T, Decision on the Defence Motion to Protect Defence Witnesses, 16 August 1996. 253 The term sub poenae duces tecum literally means ‘under penalty bring (carry) with you’, Article 54 of the French version of the Rules, uses the term ‘assignation’ which does not as such imply that a penalty may be imposed in case of non compliance. In common law systems, subpoenae duces tecum is normally understood as a compulsory order which comprises a threat of penalty in case of non-compliance. The person is to be held in contempt of court in the event of non-compliance. 254 Prosecutor v. Blaskic, ICTY Case No. IT-95-14-PT, Subpeona Duces Tecum to the Republic of Croatia and to the Defence Minister Gojko Susak, 15 January 1997. For a commentary of the powers of the Tribunal see Yves Nouvel, Précisions sur le Pouvoir du Tribunal pour l’Ex-Yougoslavie d’Ordonner la Production des Preuves et la Comparution des Témoins: l’Arrêt de la Chambre d’Appel du 29 Octobre 1997 dans l’Affaire Blaskic, R.G.D.I.P. (1998–1), 157. 255 Prosecutor v. Blaskic, ICTY Case No. IT-95-14-PT, Decision on the Objection of Republic of Croatia Subpeona Duces Tecum, 18 July 1997. 256 Prosecutor v. Blaskic, ICTY Case No. IT-95-14-AR 108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997. 257 Ibid., see para. 25. The Appeals Chamber noted that: “the International Tribunal does not possess any power to take enforcement measures against States. Had the drafters of the Statute intended to vest the International Tribunal with a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in

pre-trial proceedings

69

bound to comply with orders of the International Tribunal”.258 A new Rule259 concerning ‘Orders Directed to States for the Production of Documents’ has been adopted. Under this Rule the requested State has an opportunity to be heard on the matter and may request the Trial Chamber to have the order set aside on the grounds that disclosure would prejudice national security interests. In the Akayesu case, the defence filed three motions for the issuance of subpoenas, one of the motions sought the appearance of an expert witness who was accused of crimes related to those for which Akayesu was charged. The motion was dismissed on the grounds that the impartiality of the potential witness could not be assured and consequently he failed to qualify as an expert witness.260 Furthermore, the Trial Chamber held that to compel this witness to testify in Akayesu’s defence, could prejudice the potential witness’s rights as an accused person.261

3. Preliminary Motions Under Rule 72 of both Tribunals, four issues may be raised by way of preliminary motions.262 These matters are of particular relevance for the defence. In the Delalic case, the Appeals Chamber held that they are “by their very nature important matters which must be decided upon at an early stage”.263 In this context, the jurisdiction of the Tribunal can be challenged, defects in the form of the indictment can be raised, application for severance of counts joined in one indictment or for the separate trial of the accused can be sought and objections to the denial of a request for assignment of counsel can be brought.

its function. Under current international law States can only be subject of countermeasures taken by other States or of sanctions visited upon them by the organized international community, i.e. the United Nations or other intergovernmental organizations” Ibid. 258 Ibid., para. 87. 259 Rule 54bis. ICTY Doc. No. IT/32/REV17, 17 November 1999. There is no equivalent rule for the ICTR. 260 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness (hereinafter the “Defence Motion for Accused as Expert Witness”), 9 March 1998. See also Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998. 261 Prosecutor v. Akayesu, Defence Motion for Accused as Expert Witness, above note 260. 262 Preliminary motions shall be in writing and must be brought within thirty days at the ICTY (within sixty days at the ICTR) of the disclosure by the Prosecutor to the defence of the material which accompanied the indictment as well as statements obtained by the Prosecutor from the accused (Rule 72 (A) and Rule 66 (A)(i) of the ICTY and the ICTR). The Trial Chamber is to decide on preliminary motions within sixty days after they were filed and before the opening statement, namely the beginning of the trial proper. 263 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-AR72.1-A, Decision on Application for Leave to Appeal (Separate Trials), 14 October 1996, para. 18.

70

chapter iii

a) Challenge to Jurisdiction—Both Tribunals were established with specific substantive, territorial and temporal jurisdiction. In the Tadic case,264 the defence argued that the Tribunal was illegally established, that the primacy of the Tribunal over competent national courts was unjustified, and that the Tribunal had no subject matter jurisdiction over the case. The motion was denied.265 In the event of a case where the challenge to jurisdiction is upheld, the accused must be released unless the Prosecution informs the Trial Chamber of its intention to appeal.266 Another issue which may be raised in this context is the application of non bis in idem, in cases where the Prosecution violates this principle which is explicitly provided for by the Statutes and aims to protect the defendant against double jeopardy. Pursuant to the Statutes of the Tribunals,267 a person shall not be tried by a national court for acts which he has already been tried for by the Tribunal. More complex is the issue where an accused is tried by a national court. The Tribunals have primacy over national courts and may “[a]t any stage of the procedure” request deferral.268 Even if a person was tried by a national court for crimes within the competence of the Tribunals, a subsequent trial by the Tribunal is allowed if the crimes were considered ordinary crimes, and for reasons inherent in the proceedings of the national court namely, lack of impartiality or independence or where the proceedings “were designed to shield the accused from international criminal responsibility”.269 In the Tadic case, the Trial Chamber held that the deferral of the accused to the Tribunal “did not raise a genuine issue of non-bis-in-idem and found this principle applicable “only in cases where a person has already been tried”.270

264 Prosecutor v. Tadic, ICTY Case No. IT-94-T, Decision on the Defence Motion on Jurisdiction, 10 August 1995. 265 Ibid. In the appeal on jurisdiction, the decision of the Trial Chamber was revised in respect of the competence of the Tribunal and confirmed in all other respects. Since the amendment of Rule 72 on 1 and 13 of December 2000 (ICTY Doc. No. IT-32/REV/19), motions challenging jurisdiction will be dismissed unless their purpose is to challenge the indictment on the ground that it does not relate to persons, or territory, or period, or violations indicated in the Statute of the Tribunal. For a more recent case challenging the jurisdiction of the ICTY for alleged lack of territorial and temporal jurisdiction, see Prosecutor v. Tarculovski, ICTY Case No. IT-04-82-PT, Decision on Johan Tarculovski’s Motion Challenging Jurisdiction, 1 June 2005. 266 Rule 99 of the ICTY; see below at 71. Rule 99 of the ICTR does not provide for immediate release in the instance where a challenge to jurisdiction is upheld. 267 Article 9 of the ICTR, Article 8 of the ICTR. 268 Ibid. 269 Article 10 (2)(b) of the ICTY, Article 9 (2)(b) ICTR. 270 See Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Principle of nonbis-in idem, 14 November 1995. In this case, the accused was transferred from Germany where proceedings against him had already started but had not yet reached the trial stage. The motion was dismissed.

pre-trial proceedings

71

b) Challenge of the Form of the Indictment—It is only at the pre-trial stage that the possibility is granted to the accused to challenge the form or the content of the indictment. The confirmation of an indictment is not subject to appeal. Pursuant to Rule 47 (C) restating the relevant Article of the Statue of the Tribunals,271 an indictment must contain “[t]he name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged”.

The Blaskic decision on the form of the indictment, summarizes the previous jurisprudence of the Tribunal.272 It also adds criteria to be met by the indictment and outlines the limits as to what can be achieved by means of preliminary motions. In this decision, the Trial Chamber held that: “1) the principal function of the indictment is to notify the accused in a summary manner as to the nature of the crimes of which he is charged and to present the factual basis for the accusations. 2) the indictment must contain certain information which permits the accused to prepare his defence (namely the identity of the victim, the place and approximate date of the alleged crime and the means used to perpetrate it. 3) a preliminary motion on the form of the indictment is not an appropriate framework for contesting the facts”273 (footnotes omitted).

The indictment was not dismissed but the Tribunal ordered that it be amended where vague phrases such as “including but not limited to”, “attacks in, among others, the following towns and villages . . .”, were used.274 The Trial Chamber held that expressions such as “from about May 1992 to April 1994” lack specificity and “make it impossible for the accused to prepare his defence properly, particularly, as regards the establishment of an alibi”. The adverb “about” was ordered to be stricken.275 271 Article 18 (4) Statute of the ICTY, Article 17 (4) Statute of the ICTR. In the Statutes, the indicted person is referred to as “the accused”, whereas in the Rules he is related to as “the suspect”. 272 Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Decision on the Defence Motion to Dismiss the Indictment Based upon Defects in the Form Thereof (Vagueness/Lack of Adequate Notice of Charges), 4 April 1997 (hereinafter “the Blaskic Decision on the Motion to Dismiss the Indictment’). See also Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Defence Motion on the Form of the Indictment, 14 November 1995; Prosecutor v. Djukic, ICTY Case No. IT-96-20, Decision by Trial Chamber I on Preliminary Motions, 26 April 1996. Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21, Decision on the Motion by the Accused Delalic based on Defects in the Form of the Indictment, 15 November 1996. 273 The Blaskic Decision on the Motion to Dismiss the Indictment, above note 272, para. 20. 274 Ibid., para. 22. 275 Ibid., para. 23. In the Nyiramashuhuko case, the Trial Chamber ordered the Prosecutor to provide the defence with the identity of persons and dates lacking in the Indictment; Prosecutor v. Nyiramashuhuko and Ntahobali, Case No. ICTR-97-21-T, Decision on Nyiramashuhuko’s Preliminary Motion Based in the Form and the Substance of the Indictment, 1 November 2000.

72

chapter iii

The content of a preliminary motion, just as for other motions, has to be related to the subject matter of the actual request filed. For instance in the Akayesu case a motion entitled “Preliminary Motion Submitted by the Defence on the Form of the Indictment and Exclusion of Evidence”276 included a request for provisional release of the accused. The Trial Chamber did not relate to the latter request and held that the defence raised issues beyond the framework of the motion submitted.277 c) Challenge of Joint Trial Decisions—Under Rule 49 of both Tribunals, several crimes may be joined in one indictment “if the series of acts committed together form the same transaction and the crimes were committed by the same accused”. The test applied by the Tribunal in the Tadic case was whether the acts alleged in the indictment appeared to be part of a common scheme, strategy or plan, and if the fairness of the trial would be affected by a failure to sever the charges of the indictment.278 In the Kamuhanda case,279 the Trial Chamber granted the defence motion requesting a separate trial for the accused and emphasized that “The purpose of Rule 82(B) is in particular to protect the right of the Accused to be tried expeditiously and fairly, taking into consideration the interests of justice . . . (para. 4) . . . the Prosecutor has not provided any information indicating that the said co-accused could be arrested in the near future (para. 5) . . . the Trial Chamber finds that insisting in trying Jean de Dieu Kamuhanda jointly with his co-accused would probably result in a significant delay in the start of his trial, which would violate his fundamental right to be tried without undue delay (para. 6) . . . the Trial Chamber finds that the specific circumstances of the instant case, . . . constitute good cause to believe that a joint trial for the Accused may deprive him of the right to be tried without undue delay, and that, therefore, a severance and a separate trial for the Accused are justified in the interests of justice” (para. 7).

An accused in a joint trial “shall be accorded the same rights as if he were being tried separately”280 Rule 82 (B) provides that trials of persons accused jointly may take place separately if the Trial Chamber considers it necessary to avoid a conflict of interests that might cause serious prejudice to

276 Prosecutor v. Akayesu, Decision on Preliminary Motion Submitted by the Defence on the Form of the Indictment and Exclusion of Evidence, Case No. ICTR-96-4-T, 27 September 1996. 277 Ibid. 278 Prosecutor v. Tadic, Decision on the Defence Motion on Severance of the Indictment, ICTY Case No. IT-94-1-T, 3 May 1996. 279 Prosecutor v. Kamuhanda, Case No. ICTR-99-54-, Decision on the Motion for Severance and Separate Trial Filed for the Accused, 7 November 2000. T (due to the severance and separate trial, this case became Case No. ICTR-99-54A). 280 Rule 82 (A) of both Tribunals.

pre-trial proceedings

73

an accused or to protect the interests of justice. In the Kupreskic case, the Trial Chamber rejected the defence motion on separate trials on the grounds that it had failed to establish that a conflict of interests might arise during a joint trial which would seriously prejudice the accused. The Trial Chamber held that the right of the accused to a fair and expeditious trial would not be advanced by ordering separate trials.281 In the Delalic case, the Trial Chamber underlined the difficulties caused by separate trials, namely the long delays, repetition of evidence and great hardship for already traumatized victims.282 In principle motions brought pursuant to Rule 72 or 73 are without interlocutory appeal,283 unless jurisdiction is challenged in which case appeal lies of right.284 In other cases, a bench of three judges of the appeals chamber may grant leave to appeal upon good cause being shown.285 A “good cause” is where the challenged decision would cause a prejudice to the applicant that could not be cured by the final decision of the trial, or if the issue “is of general importance to proceedings before the Tribunal or in international law generally”.286 This rule was intended to create a “filter” for appeals relating to matters other than jurisdiction, in order to prevent the appeals chamber from being flooded with unimportant or unnecessary appeals which unduly prolong the pre-trial phase. An expedited procedure is provided by the Rules of both Tribunals for interlocutory appeals on decisions on preliminary motions challenging jurisdiction,287 and in exceptional cases from decisions of the ICTY on other motions involving evidence or procedure.288

281 Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16-PT, Decision on Defence Motion for Separate Trials, 15 May 1998. 282 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-T, Decision on the Motions for Separate Trials Filed by the Accused Delalic and the Accused Mucic, 25 September 1996. 283 In the context of the Tribunals, an interlocutory appeal is a provisional appeal that may be brought on against a decision rendered by a Trial Chamber on a party’s motions filed during the pre-trial or at the trial stage. No additions may be filed to preliminary motions. After a response to the motion was filed by the other party, a reply to the response may be filed by leave of the Trial Chamber. Prosecutor v. Tarculovski, ICTY Case No. IT-04-82-PT, Decision on Johan Tarculovski’s Motion Challenging Jurisdiction, 1 June 2005. 284 Rule 72 (B)(i) of both Tribunals. 285 At the ICTY and at the ICTR, applications for leave to appeal must in principle be brought within seven days of the filing of the challenged decision, where the decision was rendered orally, different time limits may apply. 286 Rule 73 (B) of both Tribunals. 287 Rule 116bis of the ICTY; Rule 117 of the ICTR. The expeditiousness of the appeal lies in the fact that it is heard on the basis of the original record of the Trial Chamber and may be determined entirely on the basis of written submissions. 288 See Rule 73 (B) of the ICTY.

74

chapter iii 4. Other Motions

Upon assignment of a case to a Trial Chamber, either the accused or the Prosecutor may file motions with the Trial Chamber requesting any ruling or relief that may be appropriate before the actual beginning of the trial. Rule 73 does not contain restrictions as to the subject matter of the motions which may be filed, however, an application for provisional release may not be brought under this Rule.289 Preliminary motions must be brought “before the hearings on the merits”.290

5. Deposition Evidence and Video-Link Testimony In principle the parties have the right to call, examine and have witnesses examined during the trial; nonetheless, the Trial Chamber may order proprio motu or at the request of a party,291 that depositions be taken for use at trial. The criteria is whether it is in the interest of justice that evidence be taken by deposition and whether the person whose deposition is sought is able and willing to appear before the Tribunal to give evidence. A presiding officer is appointed by the Trial Chamber to oversee this out-ofcourt procedure.292 Beyond the name and whereabouts of the person whose deposition is sought, the motion must state the place and date at which the requested deposition is to be taken, on which subject the person will be examined and indicate the circumstances justifying the taking of the deposition. There is no indication in the Rules as to which circumstances justify taking testimony by deposition. If the motion is granted, the other party has the right to attend the taking of the deposition and to crossexamine the person whose deposition is taken.293

289

Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-AR72.2, Decision on Application for Leave to Appeal (Provisional Release), 15 October 1996. Under Rule 73 (E) of the ICTR only, “a Chamber may impose sentences . . . if Counsel brings a motion, including a preliminary motion, that in the opinion of the Chamber is frivolous, or is an abuse of procedure”. For the ICTY, see Rule 46 (C). Motions, or any request filed by a party, should not be designated as confidential unless contains “information which, if disclosed, might cause prejudice, concerns about safety, or serious embarrassment to a party or a witness . . .” (para. 6); Prosecutor v. Stakic, ICTY Case No. IT-97-24-A (Before the Pre-Appeal Judge, Decision on the Defence Motion for Extension of Time, 26 April 2004. 290 Prosecutor v. Deliæ, ICTY Case No. IT-96-21-AR72.4, Decision on Application for Leave to Appeal (Provisional Release), 22 November 1995, para. 22. 291 See Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Decision on the Joint Application of the Prosecutor and the Defence for Depositions, 19 February 1998. 292 Rule 71 (A) of both Tribunals. 293 Rule 71 (C) of both Tribunals.

pre-trial proceedings

75

Under Rule 71 (D) of both Tribunals, “Deposition evidence . . . may also be given by means of a video-conference”. In the Tadic case,294 the Trial Chamber interpreted this rule and set forth the criteria for allowing videolink testimony: “Rule 71 (D) is not intended to provide for the giving of testimony by videolink but is concerned with the admission of evidence taken by deposition for subsequent trial. However, because of the extraordinary circumstances attendant upon conducting a trial while a conflict is ongoing or recently ended, it is in the interest of justice for the Trial Chamber to be flexible and endeavor to provide the Parties with the opportunity to give evidence by video-link (para. 18) . . . The Trial Chamber will . . . only allow video-link testimony if certain criteria are met, namely that the testimony of a witness is shown to be sufficiently important to make it unfair to proceed without it and that the witness is unable or unwilling to come to the International Tribunal” (para. 19).

To these two criteria, a third was added by the Trial Chamber in the Blaskic decision295 namely that the accused would not be prejudiced in the exercise of his right to confront the witness. Either party may file a request for an order that testimony be received via video-conference link.296 Here too, the Trial Chamber may grant the motion if it considers that it is in the interest of justice to do so.

6. The Preparation of the Case for Trial In order to improve judicial management of cases and to ensure a fair and expeditious trial, new rules were adopted providing for a pre-trial judge, a pre-trial conference for the Prosecution and pre-defence conference for the defence.297 The pre-trial judge is mandated to supervise the preparation of the case for trial and to ensure that the proceedings are not unduly delayed. He may set deadlines for the submission of documents, record points of agreement and disagreement between the parties on matters of fact and law, and he may hear the parties. When he considers the case ready for 294

Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Defence Motion to Summon and Protect Defence Witnesses and on the Giving of Evidence by Video-Link, 25 June 1996. 295 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21, Decision on the Motion to Allow Witnesses K, L and M to Give their Testimony by Means of Video-Link, 28 May 1997. 296 Rule 71bis of the ICTY only. See Megan A. Fairlie, Due Process Erosion: The Diminution of Live Testimony at the ICTY, 34 Cal. W. Int’l L.J. (Fall 2003), 47. 297 The pre-trial judge was instituted by Rule 65ter of the ICTY, the pre-trial and predefence conferences by Rule 73bis and Rule 73ter adopted on 17 December 1998 (ICTY Doc. IT/32/Rev.14). The Rules of the ICTR do not contain a specific rule providing for a pre-trial judge.

76

chapter iii

trial, he must report to the Trial Chamber which will hold a pre-trial conference so as to be informed of the factual and legal issues of the case before the beginning of the trial. At the close of the Prosecution’s case, and before the start of the defence’s case, a pre-defence conference may be held for the Trial Chamber to be informed of the outline and evidence of the defence.298

298

In the framework of the pre-trial conference, the Prosecution, and within the predefence conference, the defence may be requested to file the admissions by the parties and matters not in dispute, contested matters of fact and law, the list of witnesses intended to be called, a summary of facts and points of the indictment on which each witnesses will testify, the estimated length of time required for each witness and a list of exhibits each party intends to offer, and the eventual objections of the other party concerning the authenticity of the exhibits (Rule 73bis and Rule 73ter). Both parties may be requested to shorten the length of the examination in chief, or to reduce the number of witnesses whom may be reinstated under specific conditions. Upon request, a witness may be added to the list, see Prosecutor v. Kamuhanda, Case No. ICTR-99-54A-T, Decision on Kamuhanda’s Extremely Urgent Motion for Leave to Vary the List of Defence Witnesses (Rule 73ter), 15 April 2003.

CHAPTER IV

THE TRIAL BEFORE THE AD HOC TRIBUNALS

The trial starts with the opening statement of the Prosecution followed by the opening statement of the defence if the parties elect to make such statements. If the accused wishes to make a statement, he may do so upon the decision and under the control of the Trial Chamber.299 The trials at the ICTY and at the ICTR are perceived as longer than the average criminal trial, but they are by no means average trials since they involve some of the most serious crimes known to mankind. Besides scarce courtroom resources,300 there are several other substantive and material reasons for the lengthy nature of the trials: “There is scant precedent for the law to be applied by the Tribunals and the proof of crimes is more complex. For example, establishing—or defending against claims—that the conflict was widespread or systematic (as required for crimes against humanity), that there was intent to destroy in whole or in part a national, ethnical, racial, or religious group (as required for grave breaches) necessarily requires considerable evidence. Interpretation of witnesses’ testimony slows the proceedings; eliciting direct testimony from and the cross-examination of witnesses is compounded by language difficulties”.301

Persons accused jointly are tried jointly, unless the Trial Chamber ordered that they be tried separately.302 In case of joint trials, Rule 82 provides that 299

The accused is not required to make a solemn declaration and may not be examined about the contents of the statement. The Trial Chamber will evaluate the probative value, if any, of the statement. 300 The ICTY functioned with one courtroom until May 1998 when two additional courtrooms were added. The ICTR had a third Trial Chamber added in April 1998. 301 Gabrielle Kirk McDonald, Trial Procedures and Practices, 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 616. Translations into English or French and into the language of the accused, require that any one who speaks in the court-room speak slowly. 302 The Trial Chamber may order separate trials in order to avoid conflict of interests “which might cause serious prejudice to the accused or to protect the interests of justice” (Rule 82 of both Tribunals). Separate trials may be requested by a preliminary motion under Rule 72. Concerning joint trials in the context of the ICTR “the Office of the Prosecutor continued to pursue the strategy of joint trials of multidefendant cases by filing joint indictments . . . or by filing motions for joinder of accused to consolidate several indictments in a single proceeding for trial. The objective is to maximize efficiency in the use of judicial resources, to spare victims and witnesses, the inconvenience, exposure and emotional burden of having to repeat their testimony in several trials, and to facilitate proof of the conspiracy to commit genocide, the theory that undergrids the Prosecution”.

78

chapter iv

“each accused shall be accorded the same rights as if he were being tried separately”. After the presentation of all the evidence, a closing argument may be presented by the Prosecution, followed by the defence’s closing argument. The Prosecution may present a rebuttal argument, to which the defence may rejoin. A brief overview of general rules applicable throughout the proceedings,303 will be followed by evidentiary matters.

1. Principles and Rules a) Open Proceedings—Rule 78 of both Tribunals requires that all proceedings before the Trial Chamber be held in public.304 Nonetheless, Rule 79 authorizes the Trial Chamber to order that the press and the public be excluded from all or part of the proceedings for reasons of public order or morality, safety, security, non-disclosure of the identity of a victim or witnesses,305 or for the protection of the interests of justice. Should a Trial Chamber decide that the proceedings shall be behind closed doors, a public order must be issued stating the reasons. This is intended to compen-

Fifth Annual Report of the ICTR, above note 107, para. 138. For joinder of accused in one indictment see Fourth Annual Report of the ICTR, above note 198, para. 60. The applications of the Prosecution for joint trials and for consolidation of indictments are often, but not always granted; see Fifth Annual Report of the ICTR, para. 139; see also Annex III of the same Report, No. 2, 11, 12, and 21. Joinder of the accused may contribute to delays in the commencement of the trial (the Barayagwiza joinder for example), Ibid., Annex II, No. 5. 303 Where relevant, these principles and rules apply as of the pre-trial stage. 304 With respect to Rule 78, Trial Chamber II stated “. . . The preference of the Trial Chamber is to have open sessions so as not to restrict unduly the accused’s right to a public hearing and the public’s right to information and to ensure that closed sessions are utilized only when other measures will not provide the degree of protection required”; Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness ‘R’, 31 July 1996, para. 7. See also Article 20 (2) Statute of the ICTY and Article 19 (2) Statute of the ICTY providing that the accused is entitled to a public hearing. 305 Pursuant to Rule 75, there are several other measures which may be ordered by a Chamber for the privacy and protection of victims and witnesses: non-disclosure of the identity or whereabouts of victims and witnesses; names and identifying information may be expunged from the public records of the Chamber; records identifying the victim may be withheld from the public; testimony may be given by means of image or voice altering devices or through closed circuit television; in order to avoid harassment or intimidation, the Chamber may control the manner of questioning. Further, witnesses may be granted “safe conduct” by the Trial Chamber which is a different sort of protection, namely that the witnesses shall not be arrested while physically in the host country of the Tribunal; Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Decision on the Defence Motion to Summon and Protect Defence Witnesses, 25 June 1996.

the trial before the

AD HOC

tribunals

79

sate for the vagueness of the provisions allowing closed sessions. Should the behavior of an individual be threatening, or not in conformity with the dignity and decorum of the courtroom, the Trial Chamber may have him removed. If the accused disrupts the proceedings, he may also be removed from the courtroom following a warning.306 b) The Participants in the Proceedings—The trial is held before a Trial Chamber composed of three judges. In any case in which a judge has a personal interest or any association which might affect his or her impartiality, he or she may not sit on that trial or appeal. The judge who reviewed the indictment is not disqualified to sit as a member of the Trial Chamber for the trial of that accused.307 Under Rule 9 of both Tribunals, where a national court was requested by a Trial Chamber to defer a case to the competence of the Tribunal, no subsequent trial shall be held before the Trial Chamber which issued the formal request of deferral. In the Yugoslavia and Rwanda Tribunals, victims cannot participate in the proceedings, they can enter the courtroom only as witnesses for the purpose of providing accurate information.308 Nonetheless, the Rules provide the possibility to establish the basis for compensation of the victims which is to be sought outside the Tribunals.309 Besides the Prosecutor, the accused and the counsel for the accused present at the trial,310 other persons or entities may by leave be requested to 306

Rule 80 of both Tribunals. Rule 15 (C) of both Tribunals, but see amended Rule 15 (C) of the ICTY which adds that a judge who reviews an indictment may sit as a member of the Appeals Chamber for the purposes of substantive appeals or as a member of a bench of three judges pursuant to Rule 65 (D) (provisional release), 72 (B)(ii) (preliminary motion challenging jurisdiction), Rule 73 (B) (other motions) or Rule 77 ( J) (contempt of the Tribunal). ICTR Rule 15 (C) does not contain this addition. 308 See Vladimir Tochilovsky, Rules of Procedure for the International Criminal Court: Problems to Address in the Light of the Experience of the Ad Hoc Tribunals, XLVI Netherlands International Law Review (1999), 349. 309 See below note 431. 310 Under Rule 46 (A) of the ICTR, the defence counsel as well as the counsel for the Prosecution, may be refused audience, after having been warned by the Trial Chamber, and “if in its opinion, his conduct is offensive, abusive or otherwise obstructs the proper conduct of the proceedings or is otherwise contrary to the interests of justice”. ICTY Rule 46 (A) contains the same motives for removal of defence counsel, but is not applicable to counsel for the Prosecution. ICTY Rule 46 does not provide what the rights of the accused would be, should his counsel be refused audience. However, Rule 46 (C) of the ICTR provides that in the case of assigned counsel, the counsel shall be replaced in case of misconduct. If the counsel chosen by the accused is refused audience for misconduct, it can be assumed that the accused is likewise entitled to replace him. Pursuant to Rule 83 of the ICTY, handcuffs or other instruments of restraint are to be used only during transfer for security reasons and are to be removed when the accused appears before a Chamber or a judge. Rule 83 of the ICTR is worded differently and requires the removal of instruments of restraint “when the accused appears before a Chamber”. 307

80

chapter iv

appear as amicus curiae311 before a chamber. They may be invited to make submissions on issues specified by the Trial Chamber, if it considers it desirable for the proper determination of the case.312 During the pre-trial stage in the Milosevic case, the accused informed the Tribunal that he had no intention of engaging a lawyer to represent him. In order to secure a fair trial, the Trial Chamber issued an order inviting the Registrar to designate counsel not for the representation of the accused, but to appear before it as amicus curiae and to assist it in the proper determination of the case.313 c) Contempt of the Tribunal—Rule 77 of both Tribunals, contains a list of acts constituting contempt of the Tribunal, list which is not identical for both Tribunals.314 Under ICTY Rule 77 (A) “The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and willfully interfere with its administration of justice”.

This provision contains a list of specific acts for which may constitute contempt of the Tribunal: the obstinate refusal by a witness before a chamber to answer a question; disclosure of information relating to proceedings in violation of an order of the chamber; unjustified failure to comply with an order to attend before a chamber or produce documents; threats, intimidation or other interference with a potential or actual witnesses, or a witness who gave evidence in the past; threats, intimidation, bribery or coercion with the intention to prevent a person to comply with an obligation under

311 In relation to the trial, an amicus curiae is a third party which submits its views in writing or appears before a Chamber. In the Tadic case for example, leave to submit an amicus curiae brief was granted to Juristes sans Frontières. In the same case the Government of the Federal Republic of Germany appeared as amicus curiae; see John R.W.D. Jones, THE PRACTICE OF THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, above note 62, at 273–275. 312 Rule 74 of both Tribunals. On the issue of subpoenae duces tecum for example (see above notes 254, 255 and 256), the Trial Chamber invited amicus curiae. The question to be dealt with by the amicus curiae briefs was essentially whether a judge or Trial Chamber of the ICTY has the power to issue subpoenae duces tecum to a sovereign state or to a high government official of a state. Persons, associations and institutes filed motions and were granted leave to appear as amicus curiae. Prosecutor v. Blaskic, ICTY Case No. IT-95-14-PT, Order Submitting the Matter to Trial Chamber II and Inviting Amicus Curiae, 14 March 1997. 313 Prosecutor v. S. Milosevic, ICTY Case No. IT-99-37, Order Inviting Designation of Amicus Curiae, 30 August 2001. 314 Pursuant to Rule 77 of the ICTR, a Trial Chamber may impose a fine not exceeding USD 10,000 or a term of imprisonment not exceeding six months in the following instances: a) if a witness “refuses or fails contumaciously to answer a question relevant to the issue before a Chamber” (Rule 77 (A)) and b) if a person attempts to interfere or to intimidate a witness. There are no other cases of contempt provided by the relevant Rule of the ICTR. Failure of the defence counsel to appear at a hearing is not considered as contempt of Tribunal but may lead to a warning; see Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Warning Against Defence Counsels, 18 March 1998.

the trial before the

AD HOC

tribunals

81

an order of a judge or chamber.315 Incitement or attempt to commit any of the aforementioned acts is punishable with the same penalties. The maximum penalty which may be imposed by a Trial Chamber of the ICTY on a person found to be in contempt, is “a term of imprisonment not exceeding seven years or a fine not exceeding Euro 100,000, or both”.316 Former Rule 77 (C) of the ICTY317 provided that the Trial Chamber could proprio motu initiate proceedings, however, it was not clear from the Rules whether anyone else was empowered to prosecute contempt. This issue has been clarified by new ICTY Rule 77 (C), under which the Trial Chamber may direct the Prosecutor to investigate the matter and prepare the submission of an indictment. In case of conflict of interest between the Prosecutor and the relevant conduct, an amicus curiae may be appointed by the Trial Chamber to investigate the matter, or initiate proceedings itself. In case of proven indigency of the person indicted or charged with contempt, he is entitled to be assigned counsel.318

2. Evidence During this phase of the trial, each party has the right to present testimonial, documentary or physical evidence in support of its case to the Trial Chamber. Evidence at the trial is presented in the following order: “(i) evidence for the Prosecution; (ii) evidence for the defence; (iii) Prosecution evidence in rebuttal; (iv) defence evidence in rejoinder;

315

Rule 77 (A) of the ICTY. Rule 77 (G) of the ICTY. 317 Rule 77 as amended, entered into force on 28 Dec. 2001, ICTY Doc. IT/32/Rev. 22. In the Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic (ICTY Case No. IT-96-21, 11 Nov. 1996), President Cassese reminded that “the Statute does not contain any article conferring on the Prosecutor the ultimate responsibility for bringing a contempt action”. For a case before the ICTR rejecting allegations of contempt, see Prosecutor v. Nyiramasuhuko and Others, Case No. ICTR-97-21-T, Decision on the Prosecutor’s Allegations of Contempt, the Harmonisation of the Witness Protection Measures and Warning to the Prosecutor’s Counsel, 10 July 2001. 318 ICTY Rule 77 (F). Any decisions rendered in matters of contempt of the Tribunal is subject to appeal. Notice of appeal is to be filed within fifteen days of the impugned decision (ICTY Rule 77 ( J)). It should be noted that where a defence counsel is found guilty of contempt of tribunal, the Trial Chamber may “also” (in addition to the applicable penalties) determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal, or that his/her conduct constitutes misconduct of counsel, or both (ICTY Rule 77 (I)). 316

82

chapter iv (v) evidence ordered by the Trial Chamber pursuant to Rule 98;319 (vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment”.320

The Trial Chamber may, in the interest of justice, direct that a different sequence be followed. At every stage of the presentation of evidence, Rule 85 (B) allows for examination-in-chief, cross-examination and re-examination of each witness.321 In the Delalic case, the Trial Chamber clarified the meaning and the extent of the right of re-cross-examination.322 From the

319 Since these powers are stated in generic terms and do not refer to results achieved by the parties, they may be seen as inquisitorial. 320 Rule 85 (A) of both Tribunals. Rule 85 (A)(vi) conflicts with the principle that the accused shall be presumed innocent until proved guilty. Possible sentencing seems to be envisaged as of the presentation of evidence. The deliberations of the Trial Chamber have not yet taken place nor the finding of guilt which may be reached “only when a majority of the Trial Chamber is satisfied that guilt has been proven beyond reasonable doubt” (Rule 87). Rule 85 (A) was amended on 10 July 1998 (ICTY Doc. No. IT/32/REV/13), where sub-rule (vi) was added. Previously the issue of relevant information for the determination of the appropriate sentence was governed by Rule 100 on pre-sentencing procedure which reads: “If the accused pleads guilty or if a Trial Chamber finds the accused guilty of a crime, the Prosecutor and the Defence may submit any relevant information that may assist the Trial Chamber in determining the appropriate sentence”. The sentencing procedure might have been less expeditious, but had the merit to be in strict conformity with the Statute. The presentation of evidence by the parties is based on the adversarial model, whereas the powers of the Tribunal under Rule 85 (A)(v) may be seen as inquisitorial. Rule 85 (A)(vi) too is reminiscent of the inquisitorial model where at the end of the pleadings, acquittal is requested by adding that only if acquittal should be impossible, sentencing should take mitigating circumstances into account. 321 Examination in chief is effectuated by the party calling the witness. 322 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21, Decision on the Motion on Presentation of Evidence by the Accused Esad Landzo, 1 May 1997. The Trial Chamber found that the International Tribunal’s Rules of Procedure and Evidence do not envisage re-cross examination and refused to permit it. In this case, the Chamber interpreted the terms of Rule 85 (B) as follows: “Examination in chief is the process whereby a party who has called a witness to give evidence in support of his case elicits from such witness through questions evidence relevant to the issue favorable to his case . . . Cross-examination, on the other hand, is the examination of a witness by questions by the adversary against whom the witness has testified. The object of cross-examination is twofold, first to elicit information concerning facts in issue, or relevant to the issue that is favorable to the party on whose behalf the cross-examination is conducted, and secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such party. Re-examination is the process whereby a party who examined a witness-in-chief is allowed to put questions to correct matters or new facts arising out of cross-examination”; Ibid., para. 22. Further, The Trial Chamber specified under which circumstances re-cross examination may be allowed: “. . . [W]here during re-examination new material is introduced, the opposing party is entitled to further cross-examine the witness on such new matters . . . to deny further cross-examination when new material is raised in re-examination is tantamount to denial of the right to cross-examination on such new material.” Id., para. 30.

the trial before the

AD HOC

tribunals

83

sequence of the presentation of evidence, it appears that the major role is played by the parties.323 However, the Trial Chamber controls the mode and order of the interrogation of witnesses and presentation of evidence so as to “make the interrogation and presentation effective for the ascertainment of the truth and avoid needless consumption of time”.324 The judges may question witnesses at every stage of the examination and intervene in case of abusive questioning by counsel. The Trial Chamber may proprio motu summon witnesses, order their attendance and rule on the relevance and admissibility of any evidence according to criteria that ensure broad discretion. 2.1

Admissibility and Relevance of Evidence

The general rules of evidence are contained in Rule 89, providing basic standards for the admissibility of evidence at trial or on appeal. However, there are no technical rules for the admission of evidence and the judges are solely responsible for weighing its probative value. The Trial Chamber rules on the relevance and admissibility of evidence according to criteria that ensure broad discretion and leave room for further rulings “to aid in the adjudication before the Trial Chamber”.325 There are no pre-determined On the issue of alleged irregularities in the examination and cross-examination and prohibition from asking leading questions in the cross-examination, see Prosecutor v. Akayesu, ICTR-96-4, 1 June 2001, Judgement (Appeals Chamber), para. 310–326. 323 In the absence of prior training, defence counsel practicing in the context of a civil law system and accustomed to the inquisitorial approach, will encounter difficulties during the examination and cross-examination phase of the proceedings. In the civil law system the judge, and not the parties examines the witnesses. The presentation of evidence at the International Tribunals follows the adversarial model under the control and with the active participation of the Trial Chamber. 324 Rule 90 F of both Tribunals. 325 Unless otherwise provided by the Tribunal’s Rules of Evidence “. . . the Chamber is bound to apply rules of evidence which best favour a fair determination of the matter before it and which are consonant with the spirit of the Statute and the general principles of Law”. Prosecutor v. Ntagerura and Others, Case No. ICTR-99-46-T, Judgement and Sentence, 25 February 2004, para. 25. In the Tadic case, Judge McDonald stated: “The international Tribunal has ten rules of evidence which are designed only to provide a framework for the conduct of the proceedings. Certainly our Rules could not anticipate every trial procedure that litigants from a variety of countries may expect to utilize and the International Tribunal did not establish hyper-technical detailed rules typical of a jury system to cover every such possibility. In civil law systems technical rules are not available, and all evidence that aids in the search of the truth is allowed. Our Rules provide the Judges with the power to review all relevant evidence, and when necessary, to make further rulings to aid in the adjudication before the Trial Chamber. Because of the absence of specific rules, the Trial Chamber has made rulings which it considers would best facilitate the process . . .”. Separate and Dissenting Opinion of Judge McDonald, Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Decision on Prosecution Motion for Production of Defence Witness Statements,

84

chapter iv

rules,326 and national rules of evidence do not bind the Trial Chamber. It “may admit any relevant evidence which it deems to have probative value”,327 and may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”.328 The tendency is to admit rather than exclude evidence, including hearsay evidence.329 In considering the admission of hearsay evidence, the Trial Chamber held that: 27 November 1996 para. 34. The matter at issue was whether the defence had an obligation to disclose to the Prosecution a witness’s prior statement. The Trial Chamber held that it was not subject to disclosure to the Prosecution. 326 In the Bagasora case (Prosecutor v. Bagasora, Case No. ICTR-96-7-T, 8 July 1998), the defence requested the Trial Chamber to predetermine the rules of evidence and contended that “those rules of evidence which will best favor a fair determination of the matter before it” are not set out in detail and that they should be known by both parties (p. 2). The Trial Chamber held that: “[t]he basic rule is to allow flexibility and efficacy in order to permit the development of the law and not to have pre-determined Rules. This flexibility is permitted under Rule 89 (B) of the Rules which empowers the Trial Chamber to determine given evidential issues in the best way possible and to arrive at a fair and just decision under given circumstances” (p. 4). 327 Rule 89 (C) of both Tribunals. In view of the case law established by the ICTY Trial Chamber, additional conditions have to be met for rebuttal evidence to be admissible: “[R]ebuttal evidence must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated”. Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-A, 20 February 2001 (para. 273) (see below note 403). In the Kordic case, the Trial Chamber emphasized that “the Tribunal practice has been to limit such evidence strictly to matters which were not already covered in the Prosecution case . . . only highly probative evidence on a significant issue in response to Defence evidence and not merely reinforcing the Prosecution case in chief will be permitted”; Prosecutor v. Kordic & Cerkez, ICTY Case No. IT-95-14/2-T, Oral Decision, see Transcript of 18 October 2000, at 26646–7. See also Prosecutor v. Krstic, ICTY Case No. IT-9833-T, Decision on the Defence Motions to Exclude Exhibits in Rebuttal and Motion for Continuance, 4 May 2001. 328 Rule 89 (D) of the ICTY only, Rule 89 (E) of the ICTR. In the Kamuhanda case, the Trial Chamber of the ICTR noted that “. . . the interpretation of the equivalent Rule 92 bis of the ICTY Rules in the Galic Appeals Chamber Decision, which was quoted in its recent Decision of 22 January 2003 in the Nyiramasuhuko and Others Case finding that, “[t]he general requirement under Rule 89 that admissible evidence be relevant and probative applies in addition to, and not in lieu of, the more specific provisions of Rule 92 bis of the Rules . . .”. Prosecutor v. Kamuhanda, Case No. ICTR-99-54A-T, Decision on Kamuhanda’s Motion to Admit Evidence Pursuant to Rule 89 of the Rules of Procedure and Evidence, 10 February 2003 (para. 12). In the Oric case, the Trial Chamber clarified that even when there is no objection, ‘[T]his Trial Chamber has an inherent right and duty to ensure that only evidence which qualifies for admission under the Rules, will be admitted. For this purpose, as may turn out to be necessary from time to time, the Trial Chamber will intervene ex officio to exclude from these proceedings those pieces of evidence which, in its opinion, for one or more of the reasons laid down in the Rules, ought not to be admitted in evidence”. Prosecutor v. Oric, ICTY Case No. IT-03-68-T, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, 21 October 2004, Part III (xii) of the Order. 329 For an inquiry to what extent hearsay testimony should be excluded from war crime

the trial before the

AD HOC

tribunals

85

“[n]either the rules issuing from the common law tradition in respect of the admissibility of hearsay evidence nor the general principle prevailing in the civil law systems, according to which, barring exceptions, all relevant evidence is admissible, including hearsay evidence, because it is the judge who finally takes the decision on the weight to ascribe to it, are directly applicable before this Tribunal. The International Tribunal is, in fact, a sui generis institution with its own rules of procedure which do not merely constitute a transposition of national legal systems. The same holds for the conduct of the trial which, contrary to the Defence arguments, is not similar to an adversarial trial, but is moving towards a more hybrid system”.330

Tadic was accused, inter alia, of killing four prisoners. The Trial Chamber was faced with the question as to the standard and nature of proof required for conviction on this count. The Trial Chamber considered that:

trials, see Kenneth Mann, Hearsay Evidence in War Crime Trials, in WAR CRIMES IN INTERNATIONAL LAW, above note 76, at 351. On contentions related to hearsay evidence that were rejected by the Tribunal, see Prosecutor v. Akayesu, ICTR-96-4, Judgement (Appeals Chamber), 1 June 2001, para. 277–306. On extrinsic evidence see ibid., para. 148–170. It is submitted that the professional background of the judges influences how the Rules of Evidence are followed or applied: “The Trial became one in which all evidence was admitted . . . Although there was an evidence code, very few rules of evidence were followed, and fewer yet were followed consistently.” Robert A. Stein, Life in a Bubble: The International Criminal Tribunal for the Former Yugoslavia, International Society of Barrister’s Quarterly (2001), at 394. 330 Prosecutor v. Blaskic, ICTY Case No. IT-95-14-T, Decision on the Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its Reliability, 21 January 1998, para. 5. In the Aleksovski case, the Appeals Chamber held that: “. . . Trial Chambers have a broad discretion under Rule 89 (C) to admit relevant hearsay evidence. Since such evidence is admitted to prove the truth of its contents, a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful, and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose, or as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are also relevant to the probative value of the evidence . . .” (footnotes omitted) Prosecutor v. Aleksovski ICTY Case IT-95-14/1, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (para. 15). On the admissibility and weight of hearsay evidence, the Trial Chamber stated that it “. . . has accepted hearsay evidence as being generally admissible under the Rules. It has however taken into account that the weight or probative value to be afforded to hearsay evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined” (para. 11) (footnotes omitted). Prosecutor v. Naletilic and Martinovic, ICTY Case No. IT-98-34-T, Judgement, 31 March 2003. See Brian Beller, Issue 14, A Comparative Study of Exclusion of Evidence on the Grounds of the Means by which it was Obtained, Memorandum for the Office of the Prosecutor, Case Western Reserve University School of Law, International War Crimes Project (Spring 2003), at http://www.nesl.edu/center/wcmemos.

chapter iv

86

“Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof of death. However, there must be evidence to link injuries received to a resulting death. This the Prosecution has failed to do”.331

The Prosecution had failed to establish beyond reasonable doubt that the four prisoners had died as a result of injuries they had received, and therefore the accused was acquitted on charges of having killed them.332 2.2

Corroboration

In the same case, the Chamber had to deal with the question whether there is a general requirement of corroboration in cases where only one witness testifies. The defence, argued that the principle of unus testis, nullus testis 333 should be respected by the Tribunal and therefore as only one witness testified in support of the specific charges of beatings and kicking of prisoners at the Omarska Camp, the accused cannot be found guilty. The Tribunal found that “. . . there is no ground for concluding that this requirement of corroboration is any part of customary international law and should be required by this Tribunal”.334

331 Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Opinion and Judgement, 7 May 1997 (hereinafter “Tadic Opinion and Judgement). It should be noted that the inadequacy of the evidence was raised by the Trial Chamber and not by the defence. The Trial Chamber held that “[w]hen there is more than one conclusion reasonably open on the evidence, it is not for this Trial Chamber to draw the conclusion least favourable to the accused, which is what the Trial Chamber would be required to do in finding that any of the four prisoners died as a result of their injuries or, indeed, that they are in fact dead” (para. 240). See also ibid., Judgement, 14 July 1999. 332 Ibid. 333 See Prosecutor v. Akayesu, ICTR-96-4, 2 September 1998, Judgement, para. 132–135. In civil law systems the jurisprudential principle of unus testis, nullus testis (one witness, no witness) required testimonial corroboration of a single witness’s evidence as to a fact in issue. Applied in the 19th century, corroboration is not any more a general requirement in civil law codes or jurisprudence (an exception is the Netherlands Code of Criminal Procedure), the norm tends towards free evaluation of the evidence and the judges decide on the basis of their personal intimate conviction. 334 Tadic Opinion and Judgement, above note 331, para. 539. In the Krnojelac case (Prosecutor v. Krnojelac, ICTY Case No. IT-97-25, Judgment, 15 March 2002), only one witness had given evidence and some of the crimes the accused has been charged. Referring to the Aleksovski case (Prosecutor v. Aleksovski, ICTY Case No. IT-95-14/1-A, Judgment, 24 March 2000), the Trial Chamber restated the Appeals Chamber’s finding that “the testimony of a single witness on a material fact does not, as a matter of law, require corroboration” (para. 71) (footnote omitted). Nevertheless, the Trial Chamber emphasized having “scrutinised the evidence of the Prosecution witness with great care before accepting it as sufficient to make a finding of guilt against the Accused”. Ibid.

the trial before the

AD HOC

tribunals

87

Rule 96 (i) deals with the issue of corroboration in cases of sexual assault and states that no corroboration of the victim’s testimony is required. The principle underpinning this Rule is not that in cases of crimes, other than sexual assault, corroboration is required, but rather that the victim of sexual assault is granted the same presumption of reliability as the testimony of victims of other crimes, something long denied to victims of sexual assault in both civil and common law systems.335 The defence may challenge the accuracy or the credibility of the testimony during the cross-examination of the witness, except where anonymity is granted, in which case it is difficult to see how the right of the accused to a fair trial can be ensured. In light of the non-corroboration rule, in a situation where the identity of the single prosecuting witness is concealed from the defence, there is not much left with which the accused can defend himself. After all, a witness may choose not to testify, while the accused does not decide whether or not to be tried. 2.3

Witness Testimony

During the first seven years of the ICTY, Rule 90 provided that “[w]itnesses shall in principle, be heard directly by the Chambers . . .” unless the Chamber ordered or authorized receipt of testimony by other means. The part of the Rule under which witnesses were to be heard directly has since been deleted, and Sub-rule 89 (F) added: “A Chamber may receive the evidence of a witness orally or, where interests of justice allow, in written form”.336 The equivalent ICTR Rule has not been amended. 335 In the Furundzija case, the judgement was based in part on non-corroborated testimony of rape victim A, part of her testimony was corroborated by victim D.; Prosecutor v. Furundzija ICTY Case No. IT-95-17/1, Judgement, 10 December 1998. 336 Rule 90 (A) has been amended more than once. For the amendment of ICTY Rule 90 (A) deleting that “[w]itnesses shall, in principle be heard directly by the Chambers”, see ICTY Doc. No. IT-32/REV.19, 13 Dec. 2000. Consequently, the requirement that witnesses appear before the ICTY is no longer enshrined in the Rules but derives from the right of the parties to call, to examine and to have witnesses examined. Rule 90 of the ICTR on the principle that witnesses be heard directly by the chambers, was not amended. Article 69 (2) of the Statute of the ICC allows exceptions, but the principle is maintained since “testimony of a witness at trial shall be given in person”. On the probative value of evidence given in person versus evidence submitted by other means, the Trial Chamber unequivocally stated that “In cases where evidence given during deposition proceedings or contained in trial transcripts conflicted with evidence given by viva voce witnesses at trial, the Chamber has carefully scrutinised all evidence presented. The Chamber finds it generally appropriate to attach the highest probative value to evidence submitted by such witnesses who appeared before the Chamber in personam” (para. 12). Prosecutor v. Naletilic and Martinovic, ICTY Case No. Case No. IT-98-34-T, Judgement, 31 March 2003.

88

chapter iv

Where the witness appears before a Chamber, before giving evidence he or she is required to make the following solemn declaration: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth”.337 A witness who has not yet testified is not to be present during the testimony of another witness. The Trial Chamber directs witnesses not to discuss testimony with other potential witnesses be it prior or during the trial, nor to watch or read media coverage of proceedings before giving evidence.338 A child may be permitted to testify, even if he does not understand the meaning of the solemn declaration, if the Trial Chamber considers the child to be mature enough to be able to report facts known to him/her and if he/she understands the duty to tell the truth. However, a judgement cannot be based on the testimony of a child alone.339 An accused person may appear as a witness in his own defence.340 A witness may be compelled to answer questions which might be selfincriminating, but such testimony may “not be used as evidence in subsequent prosecution against the witness341 “except in the case of false testimony. A Trial Chamber may request the personal appearance and transfer of a witness detained outside the host country, unless the detained witness is required for criminal proceedings in progress in the territory of the requested State. 337 ICTY Rule 90 (A), ICTR Rule 90 (B). The Trial Chamber of the ICTY ordered that after the witness started testifying “The Prosecution and Defence henceforth must not communicate with a witness, once he or she has made the Solemn Declaration provided for in Rule 90 (B) and commenced testifying, on the subject of the content of the witness’s testimony except with the leave of the Chamber” Prosecutor v. Kupreskic and Others, ICTY Case IT-95-16, Decision on Communications Between the Parties and their Witnesses, 21 September 1998. (para. 1). 338 Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Notice to Witnesses Appended to Decision on Defence Motion to Prevent the Contamination of Witnesses, 3 May 1996. 339 Rule 90 (B) of the ICTY. Rule 90 (C) of the ICTR. 340 See Prosecutor v. Tadic, ICTY Case No. IT-94-1, Transcript of Hearing, 25 October 1996. Before the accused appeared as a witness, he took the oath prescribed for witnesses. 341 Rule 90 (E) of both Tribunals. It should be noted that under ICTR Rule 77 (B) and ICTY Rule 90 (E), a witness may be relieved of the duty to answer a question before the Trial Chamber if the answer might be self-incriminating. In relation to a witness-suspect, the Trial Chamber recalled that “[A]s is laid down by many jurisdictions and Rules 90 (E) and 91 (A) of the Rules, a witness-suspect has the right not to make any statement which might tend to incriminate him and must therefore be informed of his rights by investigators at the start of any proceedings, in particular when he is giving written evidence, if it is not inconceivable that he may later be prosecuted by the Prosecution or by the Prosecutor’s Department of his State of origin; where the witness-suspect has not been informed of his rights, leave to present any document during his oral testimony may not be granted as it might later be used to prosecute him” (footnote omitted); Prosecutor v. Hadzihasanovic & Kubura, ICTY Case No. IT-01-47-T, Decision on the Refreshment of a Witness’s Memory and on a Motion for Certification to Appeal, 19 December 2003.

the trial before the

AD HOC

tribunals

89

The transfer must also be within the limits of the period of detention foreseen by the requested State.342 Testimony may be received via video-conference link.343 The evidentiary value accorded by a Trial Chamber to testimony by video-link might be less than to testimony given before the Tribunal.344 In the Tadic case,345 the Trial Chamber issued Guidelines to be followed in the case of videolink testimony: such testimony should be taken preferably in an embassy or consulate, in an office of the International Tribunal in Zagreb or Sarajevo or in a court facility,346 and a presiding officer appointed by the Chamber is to ensure that the testimony is given freely and voluntarily. After identifying the witness, he will inform the witness of the obligation to speak the truth as well as the consequences in the event of lying and he will administer the taking of oath.347 In addition, “[T]he witness must by means of monitor be able to see, at various times, the Judges, the accused and the questioner; similarly the judges, the accused and the questioner must be able to observe the witness on their monitor”.348

The tendency is that the parties call as many witnesses as possible to prove their case which has obvious consequences on the duration of the trial and the presentation of evidence. In the Tadic case, the Prosecutor called seventy-six witnesses, forty-one were called by the defence. In the Akayesu case,349 forty-one witnesses were called, twenty-eight by the Prosecution, thirteen, including the accused, by the defence.350 In the Dokmanovic case,351 the trial began on 19 January 1998. Eighty-five witnesses testified, thirty-five during the presentation of the Prosecution’s case-in-chief and thirty-five for the defence, including the accused.352 Thereafter the Prosecution presented eight witnesses in rebuttal and the defence presented a total of seven rejoinder and character witnesses.353 Over 360 exhibits were introduced.354 342

Rule 90bis of both Tribunals. See above Chapter III.6. 344 Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Defence Motion to Summon and Protect Defence Witnesses and on the Giving of Evidence by Video-Link, 25 June 1996. 345 Ibid. 346 Para. 1 of the Guidelines. 347 Ibid., para. 2. 348 Ibid., para. 4. 349 Prosecutor v. Akayesu, Judgement, ICTR-96-4, 2 September 1998. 350 Beyond the witness’s evidence, permitted deposition evidence and exhibits were introduced, including vide-tapes. 351 Prosecutor v. Dokmanovic, ICTY Case No. 95-13a. 352 Fifth Annual Report of the ICTY, above note 160, para. 62. 353 Ibid. 354 Gabrielle Kirk McDonald, Trial Procedures and Practices, 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 607. 343

90

chapter iv

Seven witnesses were authorized to give evidence via video-conference link (from Belgrade and Vukovar), six witnesses testified in closed sessions.355 The hearing was closed on 25 June 1998, after the closing arguments were presented by the parties. The judgement was due at a later date.356 Three days after the closing of the hearings, Dokmanovic committed suicide and the Trial Chamber ordered the proceedings against him terminated.357 In the Kambanda case, the accused pleaded guilty on 1 May 1998 and was convicted four months later on 4 September. He appealed the conviction, which was confirmed on 19 October 2000.358 Faced with a significant increase in the number of cases on trial and of detainees awaiting trial, Rule 90 was amended in July 1998 to ensure the effectiveness of the presentation of evidence at the ICTY and the ICTR.359 As a result, the Trial Chamber must exercise control over the mode and order of the examining of witnesses and the presenting of evidence to increase the effectiveness and efficiency of the proceedings.360 A Trial Chamber may refuse to hear a witness who was not mentioned in the list of witnesses submitted in the context of the pre-trial conference or predefence conference.361 Cross-examination is limited to subjects covered by the evidence-in-chief and issues affecting the credibility of the witness.362 A witness may be cautioned of the duty to tell the truth and of the consequences for failure to do so.363 If a Trial Chamber has strong grounds to believe that a witness has “knowingly and willfully given false testimony”,364 the witness concerned is liable to face prosecution for perjury.365 On this issue, a witness giving testimony by video-link is treated “as if he had given evi355

Fifth Annual Report of the ICTY, above note 160 para. 62. Ibid. 357 Prosecutor v. Dokmanovic, ICTY Case No. 95-13a-PT, Order Terminating the Proceedings Against Dokmanovic, 15 July 1998. 358 Prosecutor v. Kambanda, Case No. ICTR-97-23-A, Judgement, 19 October 2000 (hereinafter the “Kambanda Appeals Chamber Judgement”). For a survey of terminated and ongoing proceedings before the ICTR, see its Annual Report available at the ICTR Website . 359 ICTY Doc. N. IT/32/REV.13, 9–10 July 1998. Rule 90 of the ICTR is similar but not identical to the amended ICTY Rule. 360 Rule 90 (F)(i) and (ii) of both Tribunals. 361 Rule 90 (G) of the ICTY only. 362 Rule 90 (H)(i) of the ICTY, Rule 90 (G) of the ICTR. Under both Rules, the Trial Chamber may decide to permit inquiry on additional matters. 363 Rule 91 (A) of both Tribunals. 364 Rule 91 (B) of both Tribunals. See Order for the Prosecution to Investigate the False Testimony of Dragan Opacic rendered in the Tadic case (IT-94-1-T, 10 December 1996). 365 In the case of false testimony under solemn declaration, the maximum penalty which may be imposed by a Trial Chamber of the ICTY is a fine of 100,000 Euro or a term of seven years imprisonment or both. The same penalty may be imposed in case of false statement which the person knows may be used as evidence before the Tribunal (ICTY Rule 91 (H)). Decisions rendered by the Trial Chamber are subject to appeal (ICTY Rule 91 (I)). The maximum penalty provided for false testimony under solemn declaration in 356

the trial before the

AD HOC

tribunals

91

dence at the seat of the International Tribunal”366 and may consequently be prosecuted in case of false testimony.367 A witness giving false evidence in the form of a written statement may be subject to the same proceedings.368 2.4

Confidentiality and Anonymity of Witnesses

As mentioned previously, the Tribunal may adopt measures to protect witnesses.369 Such measures may vary from the presentation of evidence by electronic or other special means to the admission of anonymous testimony. In the Tadic case, the Trial Chamber found that when anonymity is granted, certain guidelines must be followed in order to ensure a fair trial.370 The special concerns of victims and witnesses of sexual assault have to be taken into consideration, but as explicitly provided by Rule 75, measures for the privacy and protection of victims and witnesses must be consistent with the rights of the accused. Confidentiality, namely non-disclosure to the public or to the media, should be granted every time a victim and witness of sexual assault is not ready to have the details of what was allegedly endured exposed to the public or to the media. The right to privacy of such victims outweighs the benefits derived from the presence of the context of the ICTR is a fine of USD 10,000 or a term of imprisonment of twelve months or both (ICTR Rule 91 (D)). The ICTR Rules do not contain explicit provisions on penalties for false statements or on appeals against decisions on false testimony. 366 Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Decision on the Defence Motion to Summon and Protect Defence Witnesses and on the Giving of Evidence by Video-Link, 25 June 1996, para. 22 (hereinafter the “Decision on Protection of Defence Witnesses and Video-Link Evidence). Although a witness is physically absent from the courtroom, evidence given by video-link does not prevent the defence from confronting the witness and consequently does not affect the right of the accused to cross-examine witnesses against him; Prosecutor v. Delalic, Decision the Motion to Allow Witnesses K, L, and M to Give Evidence by Video-Link Conference, ICTY Case No. IT-96-21-T, 28 May 1997. 367 Tadic case Decision on Protection of Defence Witnesses and Video-Link Evidence, above note 366. 368 Rule 92bis (B)(b)(iii) of the ICTY. 369 See above at 40 and note 372. Rule 75 of the ICTY provides the procedure to follow for a party seeking to vary or rescind protective measures which have been ordered. Such orders may be changed or rescinded by the Trial Chamber if the proceedings are at the trial stage, by the Appeals Chamber during appeal proceedings. 370 The guidelines set by the Trial Chamber are as follows: “Firstly, the Judges must be able to observe the demeanor of the witness, in order to determine the reliability of the testimony . . . Secondly, the Judges must be aware of the identity of the witness in order to test the reliability of the witness . . . Thirdly, the defence must be allowed ample opportunity to question the witness on issues unrelated to his or her identity or current whereabouts, such as how the witness was able to obtain the incriminating information but still excluding information that would make the true name traceable. Finally, the identity of the witness must be released when there are no longer reasons to fear for the security of the witness”. Prosecutor v. Tadic, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, ICTY Case No. IT-94-1, 10 August 1995, para. 71 (hereinafter the “Decision on Protective Measures for Victims and Witnesses”).

92

chapter iv

the public and the press at the trial,371 and even the right of the accused to a public trial. The trial must in principle be public, but it is mentioned nowhere in the Statute or in the Rules that it must be public all the time. On the contrary, the Statute and the Rules explicitly provide that proceedings may be held in camera.372 Confidentiality of witnesses does not jeopardize the proper preparation of a defence case, or the possibility to challenge the witness as the defence counsel and the accused know the identity of the witness. Therefore, confidentiality does not affect the fairness of the trial, whereas the anonymity of witnesses does. The reasons underlying disclosure of the identity of witnesses were clearly stated by the European Court of Human Rights: “If the defence is unaware of the identity of a person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author’s reliability or cast doubt on his credibility The dangers inherent in such a situation are obvious”.373

In the Tadic case,374 of the fourteen measures requested by the Prosecution, the defence agreed to all but four of them limiting disclosure of information about witnesses and victim’s identity.375 Faced with the issue of balancing the rights of the accused against the protection of witnesses and victims of sexual assault, the Trial Chamber held that “In determining where the balance lies between the right of the accused to a fair and public trial and the protection of victims and witnesses, consideration has been given to the special concerns of victims of sexual assault. . . . The

371 The benefits of public hearings were summarized in the Tadic case, namely that public access and the presence of the press, help to ensure that a trial is fair, and to see that it is fair. See Decision Protective Measures for Victims and Witnesses, above note 370, para. 32. 372 Article 22 Statute of the ICTY, Article 21 Statute of the ICTR. These Articles explicitly provide that the measures for the protection of victims and witnesses to be provided in the rules of procedure and evidence, “shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity”. It is clear from the context of this provision that the identity of the victim is to be protected against the public, but it is far from obvious that, as a protective measure, the victim’s identity can be protected against the accused. See Rule 75 (B)(ii) and Rule 79 (A)(ii) of both Tribunals. For the difficulties used by the “confidential witness” (their identity is allowed to be known only to a limited number of the defence team), see Robert A. Stein, Life in a Bubble: The International Criminal Tribunal for the Former Yugoslavia, above note 329, at 325. 373 Kostovski v. The Netherlands, Judgment, ECHR Case No. 10/1988/154/208, 20 November 1988, para. 42. 374 Prosecutor v. Tadic, Decision on Protective Measures for Victims and Witnesses, above note 370. 375 Ibid.

the trial before the

AD HOC

tribunals

93

measures sought by the Prosecutor are appropriate to protect the privacy rights of witnesses F, G, H, and I. These measures in no way affect the accused’s right to a fair and public trial . . .”.376

The Trial Chamber’s conclusion is clear, but it is equally clear that the accused would have been denied the minimum guarantee provided by Article 21 (4)(e) of the ICTY Statute to examine, or have examined the witnesses that were granted full anonymity.377 The credibility and the motives of those witnesses could consequently not have been attacked. Witness “I” was not granted anonymity but full confidentiality. In the same case, witnesses “J” and “K” were granted non-disclosure concerning their identity and identifying information. Some of these witnesses were never called to give evidence and ultimately only one witness testified under conditions of anonymity.378 2.5

Evidence Other than Testimony of Witnesses

i) Confessions and written statements—Under the condition that the right to counsel was respected, confessions by the accused are presumed to have been free and voluntary if they were given during questioning by the Prosecutor, unless the contrary is proven.379 Concerning evidence not related to an act or to the conduct of the accused, a Trial Chamber may allow proof of the fact to be admitted in the form of a written statement.380 Rule 92bis 376

Ibid., para 50. On the issue of the anonymous witnesses and the right to a fair trial see: Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against the Accused, 90 A.J.I.L. 235 (1996); Sara Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, 31 International Law and Politics New York University Journal of International Law and Politics 535 (1999); Mercedeh Momeni, Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An Examination of the Anonimity Rules of the International Criminal Tribunal for the Former Yugoslavia, 41 Howard Law Journal 155 (1997). Kelly L. Fabian, Proof and Consequences: an Analysis of the Tadic & Akayesu Trials, 49 DePaul Law Review (2000), at 981. 378 Gabrielle Kirk McDonald, Trial Procedures and Practices, in 1 SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 566. 379 Rule 92 of both Tribunals. Under the Rules of Procedure and Evidence of the ICC, previous statements recorded by the Prosecutor are considered as being proven if the defence agreed to their content (Rule 69 of the ICC). 380 Rule 92bis of the ICTY only. This new Rule was added in December 2000 after sub-Rule 90 (A) on the principle that witnesses be heard directly by the Chambers was deleted. Evidence in the form of a written statement is admissible “if it attaches a declaration of the person making the written statement that the contents of the statement are true and correct to the best of that persons knowledge” and if it meets specific formal conditions (see Rule 92bis (B)). These conditions are not peremptory as the Trial Chamber may admit such evidence if it is satisfied of the statement’s reliability, even in the absence of formal requirements in instances such as for example, the subsequent death of the person who made the statement (Rule 92bis (C)). See Patricia M. Wald, The Use of Affidavit Testimony in 377

94

chapter iv

(A) contains an open list of factors for and against admitting evidence in the form of a written statement. For example, “an overriding public interest in the evidence in question being presented orally”,381 constitutes a factor against its admission in the form of a written statement. Evidence in the form of a written statement at trial requires that a fourteen days’ notice be given to the opposing party which may object within seven days.382 Finally, the Trial Chamber will decide whether or not to admit the written statement and may require that the witness be called for cross-examination.383 Testimony of expert witnesses is admissible if the opposing party accepts the statement of the expert witness and does not file a notice requesting the cross-examination of the witness. In such a case the witness is not

Yugoslavia War Crimes Tribunal Proceedings, above note 222, at 542. See also Prosecutor v. Aleksovski, ICTY Case No. IT-95-14/1-A, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999; Prosecutor v. Galic, ICTY Case No. IT-95-14/2, Decision on Interlocutory Appeal Concerning Rule 92bis (C) of the Rules, 7 June 2002. The ICTR Trial Chamber held that “. . . under Rule 90 (A) of the Rules it is provided that, “[w]itnesses shall in principle, be heard directly by the Chambers [. . .]”. In the instant case, the Defence has not provided the Chamber with sufficient reasons why Witness ALA should not be heard directly. Accordingly the Chamber directs the Defence to take the necessary measures to ensure the appearance of Witness ALA before the Tribunal” (para. 17); Prosecutor v. Kamuhanda, Case No. ICTR-99-54A-T, Decision on Kamuhanda’s Motion to Admit Evidence, 10 February 2003. 381 Rule 92bis (A)(ii)(a). 382 In principle, the same time limits apply where a party seeks to adduce transcripts of evidence given by a witness in other proceedings before the Tribunal. Such transcripts may be admissible as evidence before the Trial Chamber pursuant to Rule 92bis (D) of the ICTY. 383 Rule 92bis (E). This Rule replaced Rule 94ter on affidavit evidence (ICTY Doc. No. IT/32/REV.19, 1 and 13 December 2000) which constituted “part of the ongoing effort of the Tribunal to speeding up the trial process whilst providing for the proper protection of the rights of the accused and the obligation of the Tribunal to the international community to conduct trials fairly and expeditiously”. Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/1998/846, 25 August 1999, para. 117 (hereinafter the “Sixth Annual Report of the ICTY”). Rule 92bis was a step in this direction. For a decision rendered on Rule 94ter, but which remains relevant for Rule 92bis that replaced it, see Prosecutor v. Kordic & Cerkez (ICTY Case No. IT-95-14/2, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and one Formal Statement, 18 September 2000), the Appeals Chamber directed the Trial Chamber to exclude the seven affidavits and the formal statement from evidence as “The Appellant was deprived of the opportunity to challenge and cross-examine a live witness on the facts alleged in the seven affidavits. The terms of Rule 94ter should not be extended so that it becomes a general mechanism by which a party may file unchallenged affidavit evidence to support oral testimony which has already concluded. Departure from the terms of the Rule deprived the Appellant of the right to consider the affidavit evidence before the testimony of the live witness, to cross-examine that witness on the issues raised and thereafter to make his submissions as to whether or not he needed to cross-examine the makers of the supporting affidavits” (para. 33).

the trial before the

AD HOC

tribunals

95

called to testify in person.384 Should the opposing party not accept the statement of the expert-witness, the witness may be called to testify and the Trial Chamber will decide on the admissibility of the testimony. ii) Consistent pattern of conduct—Pursuant to Rule 93, the Trial Chamber may admit evidence of a “consistent pattern of conduct” in the interest of justice. Although the admissibility of this evidence is limited to conduct “relevant to serious violations of international law under the Statute”, its aim might be to prove that the accused had a propensity to act in a certain manner when committing crimes not covered by the indictment. In this case its admission would be incompatible with the right of the accused to be presumed innocent until proven guilty.385 However, the purpose of evidence of a consistent pattern of conduct might be to prove a fact, for example, that attacks directed against the civilian population were systematic in a case where the accused was indicted for crimes against humanity. In this case, the use of pattern of conduct would not affect the rights of the accused. iii) Judicial notice—Facts of common knowledge do not require formal evidence and the Trial Chamber “shall take judicial notice thereof ”.386 Such facts may be entered in the records of the proceedings without further proof.387 The Trial Chamber, after hearing the parties, may also take judicial notice of “adjudicated facts or documentary evidence from other proceedings of 384 Rule 94bis of both Tribunals. The full statement of an expert witness is to be disclosed to the opposing party and must be filed within the time limit prescribed by the Trial Chamber (ICTY Rule 94bis (A)). At the ICTR, the time limit for disclosure is of twenty-one days before the date on which the expert will testify. The opposing party has thirty days, or as prescribed by the Trial Chamber (ICTY), (fourteen days at the ICTR), to file the non-acceptance of the expert witness’s statement or to indicate that it wishes to cross-examine the expert witness (Rule 94bis (B) of both Tribunals). See Prosecutor v. Krajisnik, ICTY Case No. IT-00-39-T, Decision on Two Expert Witnesses (Nielsen & Riedelmayer), 31 March 2004. See below Chapter IV.2.5 on expert witnesses. In the Stakic case, the Trial Chamber considered “that the Defence should, in principle, have the opportunity to present expert evidence in relation to issues addressed by Prosecution expert witnesses, . . . however, that a second expert on an identical issue may only be called to testify where it can be shown that he or she possesses superior knowledge, expertise or methods of working, . . . that it is for the moving party to substantiate and demonstrate this, . . . that the Defence, in its Request, has not met this requirement . . .” Prosecutor v. Stakic, ICTY Case No. IT-97-24, Decision on Request for Approval of Defence Experts, 8 October 2002. 385 There is no provision in the Rome Statute or in the Rules of Procedure and Evidence of the ICC on the admissibility of evidence of a consistent pattern of conduct. 386 Rule 94 (A) of both Tribunals. 387 Further, the Trial Chamber after hearing the parties, may take judicial notice of “adjudicated facts and documentary evidence from other proceedings of the Tribunal . . .” (Rule 94 (B) of both Tribunals).

96

chapter iv

the Tribunal relating to matters at issue at the current proceedings”. This might shorten trials, but even if the defence is to be heard before such judicial notice is taken, the defendant was not a party in the ‘other proceedings’ and is consequently denied the right to challenge this evidence. In its submission to the Tribunal on judicial notice in international law, the Prosecution suggested that: “It may be necessary . . . as a criminal tribunal to be perhaps more conservative with regard to judicial notice in a criminal tribunal than the ICJ might be with regard to civil litigation between governments . . . We would submit that it must in the interest of fairness and justice take judicial notice of facts which it regards as notorious in the context which it is adjudicating, and that is the context of the Former Yugoslavia . . . certainly this court can for certain purposes take notice of United Nations documents . . .”.388

Under Rule 98 of both Tribunals, the Trial Chamber may order the production of additional evidence by either party as well as summon witnesses and order their appearance for questioning. 2.6

Rules Applicable in the Absence of Provisions

Where the Rules do not provide otherwise, the rules of evidence to be applied by the Trial Chamber will be those “which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”.389 There is little guidance in the decisions or judgements of the Tribunals as to the meaning of “the general principles of law” relating to evidence. Judge Stephen in his Separate Opinion held that “It is clear from Sub-rule 89 (A) that national rules of evidence are not binding; however such rules of evidence as prove to be very commonly adopted in adversarial systems will necessarily be of strong persuasive authority when it becomes necessary to determine what should be done in instances not legislated for by the International Tribunal’s own Rules, Sub-rule 89 (B) with its reference to “general principles of law” provides additional support for this approach, where a substantial number of well-organized legal systems adopt a particular solution to a problem it is appropriate to regard that solution as involving some quite general principle of law such as referred to in Sub-rule 89 (B)”.390 388 Prosecutor v. Tadic, Transcript of Hearing in an Interlocutory Appeal before the Appeals Chamber, 7 September 1995, ICTY Case No. IT-94-1AR72, quoted in John R.W. Jones, PRACTICE OF THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, above note 62, at 310. 389 Rule 89 (D) of the ICTY only. Presumably, the purpose of the inclusion of “the general principles of law” was to avoid a situation of non-liquet, namely to avoid a situation where there is no applicable legal rule. 390 Prosecutor v. Tadic, ICTY Case No. IT-94-1, Prosecution Motion for Production of

the trial before the 2.7

AD HOC

tribunals

97

Exclusion of Evidence

Under Rule 95 of both Tribunals, evidence shall not be admissible “if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings”.

What appears clear from this Rule is that evidence obtained by methods casting substantial doubt on its reliability is inadmissible without further condition. Rule 95 was amended in 1995 on the basis of proposals from the Governments of the United Kingdom and the United States.391 The amended Rule replaced the former rule under which evidence obtained by means “which constitute a serious violation of internationally protected human rights” are inadmissible. The admissibility or the inadmissibility of evidence is no longer a matter of means but one of result. The former rule had the merit to discourage human rights violations in the gathering of evidence ab initio. As the present Rule stands, evidence obtained by an antithetical method can still be admitted unless it ‘seriously’ damages the integrity of the proceedings. Whether a method employed ‘seriously’ damages the integrity of the proceedings, is a decision left to the discretion of the Tribunal. In the case of Delalic and Others, the Trial Chamber held that

Defence Witness Statements, 27 November 1996, Separate Opinion of Judge Stephen, at 6. It should be noted that the content of “the general principles of law” in Rule 89 (B) in relation to the Tribunal as defined by Judge Stephen, is precisely what the general principles of law recognized by civilized nations constitute for the International Court of Justice. Article 38 (1) of its Statute provides that “[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: . . . c) the general principles of law recognized by civilized nations”. In the Erdemovic case, Judge Mc Donald and Judge Vohrah, thoroughly reviewed the issue of duress as a defence under international law and in the light of the general principles of law which “are to be derived from existing legal systems, in particular, national systems of law”; Prosecutor v. Erdemovic, ICTY Case No. IT-96-22, Judgement II, above note 76, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 57. 391 Second Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, reprinted in ICTY Yearbook, 287 (note 9) (1995) U.N. Doc. S/1994/728, 23 August 1995. For the amendment see ICTY Doc. No. IT/32/REV.6, 6 October 1995. Article 69 (7)(b) of the ICC is similar to the second part of Rule 95 of both Tribunals with one important difference, namely that the exclusionary rules for evidence in the Rome Statute are based on clear foundations: “Evidence obtained by means of a violation of this Statute or of internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings”. Under the Rome Statute, the violation of a legal prescription does not as such suffice to exclude evidence, only a violation having specific effects.

98

chapter iv “statements obtained from suspects which are not voluntary, or which seem to be voluntary but are obtained by oppressive conduct, cannot pass the test under Rule 95”.392

In the same case, the Trial Chamber considered inducement to confess as such not to be sufficient reason to require exclusion of the statement.393 In cases of sexual assault, consent is not allowed as a defence in inherently threatening or coercive situations.394 However, if the accused is able to prove to the Trial Chamber that evidence relating to consent is relevant and credible, evidence of the victims consent may be admitted.395 Pursuant to Rule 96 (iv) of both Tribunals, prior sexual conduct of the victim is not to be admitted as evidence. In the Delalic case, the Tribunal clarified the nature of this Rule: “Sub-rule 96 (iv) is an exclusionary rule which totally forbids the introduction of evidence concerning prior sexual conduct in sexual assault cases and there can be no waiver of its imperative application”.396

In principle, all communications between lawyer and client are considered privileged and may therefore not be used at trial; nevertheless, a third party may give evidence on the content of the communication which a client voluntarily disclosed to that third party.397 Another relevant privilege is that the accused may not be compelled to incriminate himself.

3. Motion for Judgement of Acquittal At the stage of the trial where the Prosecution concludes it’s case-in-chief, the defence may challenge the lawfulness of the Prosecution and show that there is no prima facie case against the accused. If the Trial Chamber is

392 Prosecutor v. Delalic, ICTY Case No. IT-96-21, 2 September 1997, Decision on Zdavko Mucic’s Motion for the Exclusion of Evidence, para. 41. On this matter see also Prosecutor v. Oric, ICTY Case No. IT-03-68-T, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, 21 October 2004, where the Trial Chamber stated that “[t]he burden of proof in establishing that a statement was voluntary lies on the party seeking to introduce it . . .” Part III (x) of the Order. 393 Ibid., para. 55. 394 Pursuant to Rule 96 (ii)(B) of both Tribunals “In cases of sexual assault . . . [c]onsent shall not be allowed if the victim . . . [h]as been subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression”. 395 Rule 96 (iii) of both Tribunals. 396 Prosecutor v. Delalic, Decision on the Prosecutor’s Motion for the Redaction of the Public Record, ICTY Case No. IT-96-21, 5 June 1997, para. 58. On the assessment and credibility of evidence, see Prosecutor v. Kajelijeli, ICTR-98-44A-T, Judgement and Sentence, 1 December 2003, para. 36–40. 397 Rule 97 of both Tribunals.

the trial before the

AD HOC

tribunals

99

convinced that the evidence presented by the Prosecution is insufficient to convict the accused on one or more counts contained in the indictment, it may whether by motion of the defence or proprio motu “order the entry of a judgement of acquittal in respect of those counts”.398 In practice, motions to dismiss counts of the indictment were filed even before a rule expressly allowed for such a procedure.399 The standard of proof to be met by the Prosecution for the Trial Chamber to deny a defence motion to dismiss specific counts is not guilt beyond reasonable doubt but some evidence which could support a conviction. The test to be applied is “whether there is some evidence which could support a conviction of the accused with respect to the charge as contained in the indictment. This question is separate from whether the Prosecution will satisfy the Trial Chamber at the conclusion of the trial that the accused is actually guilty beyond reasonable doubt with respect to that count” (footnote omitted) (emphasis in original).400

In the Blaskic case, the Motion to Dismiss was based on Rule 54 as Rule 98bis did not exist when the motion was filed. The Trial Chamber ruled on the admissibility of the motion after Rule 98bis was adopted:401 “The required standard is that the evidence presented by the Prosecution be insufficient to justify from this time forth a conviction for all or part of the counts concerned . . . the Trial Chamber could grant the request of the accused and order the dismissal of some of the counts of the indictment solely on the basis of Rule 54, only if it deemed that the Prosecution has so clearly failed to satisfy its obligations as the prosecuting party, that, commencing with this stage of the proceedings, it is no longer even necessary to review the Defence evidence regarding the counts covered in the Motion”.402

398 Rule 98bis (B) of the ICTY, Rule 98 of the ICTR. In the event of acquittal, the accused is to be released immediately unless the Prosecutor intends to appeal in which case the Trial Chamber may issue a warrant of arrest and further detention of the accused. See below Chapter IV.3. 399 Before the adoption of Rule 98bis in July 1998, motions to dismiss counts of the indictment were filed on the basis of Rule 54 under which the Trial Chamber “may issue orders . . . for the conduct or the preparation of the trial”. See Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Decision on the Defence Motion to Dismiss Charges, 13 September 1996 (the motion was dismissed). 400 Gabrielle Kirk McDonald, Trial Procedures and Practice, above note 59 at 571. In the Kordic case, the Trial Chamber held that: “the true test to be applied on a motion for acquittal under Rule 98bis is not whether there is evidence which satisfies the Trial Chamber beyond reasonable doubt of the guilt of the accused, but rather, whether there is evidence on which a reasonable Trial Chamber could convict”. Prosecutor v. Kordic & Cerkez, ICTY Case No. IT-95-14/2, Decision on Defence Motions for Judgement of Acquittal, 6 April 2000, para. 26. See also Prosecutor v. Sikirica and Others, ICTY Case No. IT-95-8, Judgement on Defence Motions to Acquit, 3 September 2001. 401 The Trial Chamber motivated its reliance on the new Rule by the principle generalibus derogant specialia, namely that the new specific rule sets the former general rule aside. 402 Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Decision of Trial Chamber I on the

100

chapter iv

The standard that ‘evidence presented by the Prosecution be insufficient to justify from this time forth a conviction’ appears to be more favorable to the accused than ‘some evidence which could support a conviction’. Therefore Rule 6 (C) according to which an amendment “shall not operate to prejudice the rights of the accused in any pending case” was upheld. In the Delalic Judgement,403 a procedural issue relating to motions of acquittal was restated: “In its Decision on these motions, the Trial Chamber observed that the submission of a motion for judgement of acquittal constituted an effective closing of the Defence case, thereby entitling the Trial Chamber to determine the guilt or innocence of the accused, whereas a request for dismissal of the Indictment, if unsuccessful, would permit the accused to continue with their respective cases”.404

The intention of the defence counsel was to request the dismissal on all counts of the indictment and not to seek to close the case on each count. The Trial Chamber dismissed the motion and held that there was sufficient evidence to allow a reasonable tribunal to convict, should the evidence be admitted.405 In the event of acquittal, the accused is to be released immediately unless the Prosecution intends to appeal.406 One of the very few instances where the acquitted person was released despite the notice of appeal filed by the Prosecutor against a judgement of acquittal, is the Bagilishema case.407

Defence Motion to Dismiss, 3 September 1998 pp. 2 and 3. See also Prosecutor v. Galic, ICTY Case No. IT-98-29-T, Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002. On the meaning of insufficient evidence, see Prosecutor v. Jelisic, ICTY Case No. IT-95-10-A, Judgement, 5 July 2001 (hereinafter “Jelisic Appeal Judgement”). 403 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21, Judgement, 16 November 1998 (hereinafter referred to as the “Celebici Camp Judgement”). Joint trials are often referred to by the name of the first accused in the indictment. To refer to this case as the “Delalic Judgement” might create wrong impressions as Zejnil Delalic was found not guilty by the Trial Chamber, and his acquittal was confirmed by the Appeals Chamber (Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-A, Judgement, 20 February 2001 (hereinafter the “Celebici Camp Appeal Judgement”). At the conclusion of the case of the prosecution before the Trial Chamber, the defence filed a “Motion for Judgement of Acquittal or in the Alternative Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case” (Case No. IT-96-21-T, 20 February 1998). 404 Celebici Camp Judgement, above note 403, para. 82. 405 Ibid. Rule 98bis as amended on the 8 December 2004 reads: “At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count, if there is no evidence capable of supporting a conviction.” For the implications of new Rule 98bis, see Prosecutor v. Oric, ICTY Case No. IT-03-68, Transcript of 8 June 2005, 8981 to 9036. 406 See above at 98 and accompanying notes. 407 Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001. On

the trial before the

AD HOC

tribunals

101

There is no provision in the Statute of the ad hoc Tribunals authorizing the Prosecutor to appeal against acquittal, or authorizing the Appeals Chamber to reverse a decision of acquittal of the Trial Chamber. In practice appeals against acquittal are filed by the prosecution.408

4. Closing Arguments At the conclusion of the presentation of evidence, the hearing reaches the final phase where each party may present a closing argument which may include both factual and legal arguments related to the case. If the Prosecution decides to present a closing argument, its aim will be to show that the evidence presented supports the charges contained in the indictment and that the burden of proof has been met. The defence may make a closing argument regardless of whether or not the Prosecution did so.409 In the closing arguments of the defence, facts as presented by the Prosecution can be challenged, weaknesses and inconsistencies in the testimonies presented by the Prosecution at trial may be pointed out, or it may be questioned whether the Prosecution has sufficiently established the elements of the crime with which the accused has been charged. Depending on the circumstances of the case, the defence may ask the Trial Chamber to acquit the accused. If a party decides to present a closing argument, a final trial brief addressing matters of sentencing, must be filed five days before the presentation of the closing argument.410 In cases where the accused has not pleaded guilty, relating to matters of sentencing prior to conviction might prejudice the outcome on the merits. The Trial Chamber has not

3 July 2002 the Appeals Chamber dismissed the Prosecution’s appeal, affirmed the acquittal of the Trial Chamber, and ordered Bagilishema’s immediate release. In the Delalic case, the Prosecution made an oral application for the continued detention of the accused which was denied, see above note 403. 408 See for example Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001. See also below Chapter V; see Part II. Chapter IV.12 for the ICC. 409 Before Rule 86 was amended, the defence could not make a closing argument where the Prosecution did not do so. The defence could only respond to the closing argument of the Prosecution, however there was no requirement to file a trial brief or to address matters of sentencing. For an example of closing submission of the parties at the sentencing hearing, see Prosecutor v. Plavsic, Case No. IT-00-39&40/1 Sentencing Judgement, 27 February 2003. 410 Rule 86 of both Tribunals. The requirement that matters of sentencing be addressed at the stage of the closing arguments might be expedient, it is however problematic as the accused is to be presumed innocent until found guilty, a finding which is reached at the deliberations after the closing of the hearings. In the context of the International Criminal Court, after the completion of the trial, a further hearing on additional evidence or on submissions relevant to the sentence may be held proprio motu by the Trial Chamber or at the request of the of the Prosecutor or the defence; see Article 76 and Rule 143 of the ICC.

102

chapter iv

yet rendered its verdict; it is not known if the Chamber will find that guilt has been proved and to which extent it will be proved. The defence is nonetheless required to put all mitigating evidence. Upon completion of the presentation of the case, the presiding judge declares the end of the hearing and the judges commence their deliberations.

5. Deliberations The deliberations are held in private and must remain secret,411 and “[a] finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt”.412 The Rules of the Tribunals do not define the meaning of “beyond reasonable doubt”.413 The same standard of proof was used by the Nuremberg and Tokyo Tribunals, and the same standard will be required for conviction by the International Criminal Court. If the Prosecutor failed to meet this burden, the Trial Chamber is to enter a judgement of not guilty. Each charge in the indictment must be voted upon separately, and in the case of joint trials, separate findings are to be made for each of the accused.414 Under Rule 87 (C) of both tribunals, if the accused is found guilty on several charges contained in the indictment, the Trial Chamber “shall at the same time determine the penalty to be imposed in respect of each finding of guilt”.415 An amendment from December 2000 to ICTY Rules 87 (C) adds “and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its powers to impose a single sentence reflecting the totality of the criminal conduct of the accused”.416 411

Rule 87 (A) and Rule 29 of both Tribunals. Rule 87 (A) of both Tribunals. 413 On the tests of guilt beyond reasonable doubt, see the Jelisic Appeal Judgement, above note 402. In its Comment on the Draft Rules, the American Bar Association (ABA) proposed the following definition: “It is not required that the [prosecutor] prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense-the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon in the most important of his or her own affairs”. Report of the American Bar Association Task Force on War Crimes in the Former Yugoslavia, Commenting on the United States Draft Rules of Procedure and Evidence for the International Tribunal, U.N. Doc. IT/INF.6/Rev.2, 18 January 1994 cited in Virginia Morris and Michael P. Sharf, 1 AN INSIDERS’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, above note 62, at 271. 414 Rule 87 (B) of both Tribunals. 415 Rule 87 (C) of both Tribunals before its amendment. 416 Amendment of 1 and 13 December 2000, ICTY Case. No. IT/32/REV.19. Under 412

the trial before the

AD HOC

tribunals

103

Rarely were single sentences imposed by the ICTY prior to the amendment of Rule 87 (C).417 Though this Rule has not been amended by the ICTR, single sentences have been pronounced for multiple convictions.418 Single sentences may have negative consequences from a defence perspective in the context of the appeal.419 The basis for a single sentence for multiple counts is often stated in the judgement. In the Krstic case for example, the Prosecution submitted that the accused should be sentenced to consecutive life sentences for each count on which he was found guilty. The Trial Chamber held that “in view of the fact that General Krstic is guilty of crimes characterized in several different ways but which form part of a single campaign or strategies of crimes committed in a geographically limited territory over a limited period of time, the Trial Chamber holds it preferable to impose a single sentence . . .”.420

In the context of the ICC, in cases of conviction for more than one crime, the Statute requires the Court to pronounce “a sentence for each crime and a joint sentence specifying the total period of imprisonment”421 (emphasis added). Rule 101 (C) of the ICTR, the Trial Chamber must indicate whether multiple sentences shall be served consecutively or concurrently. 417 Prosecutor v. Jelisic, Judgement, ICTY Case No. IT-95-10-T, 14 December 1999 (hereinafter the “Jelisic Judgement”); Prosecutor v. Blaskic, ICTY Case No. IT-95-14-T, Judgement, 3 March 2000 (hereinafter the “Blaskic Judgement”); Prosecutor v. Krstic, ICTY Case No. IT-98-33, Judgement, 2 August 2001 (hereinafter the “Krstic Judgement”). 418 In the Kambanda case, a global sentence was imposed for convictions on multiple counts. The defence challenged the failure of the Trial Chamber to pronounce and impose a separate sentence for each finding of guilt. The Appeals Chamber dismissed this ground of appeal and found “. . . in this regard that the Statute is sufficiently liberally worded to allow for a single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the Chamber. The Appeals Chamber upholds the argument of the Prosecution that a Chamber is not prevented from imposing a global sentence in respect of all counts for which an accused has been found guilty” (footnote omitted). Kambanda Appeals Chamber Judgement, above note 358, para. 103. For the Sentence rendered by the Trial Chamber in the same case, see Prosecutor v. Kambanda, Case No. ICTR-97-23, Judgement and Sentence, 4 September 1998 (hereinafter the “Kambanda Judgement and Sentence”). For other judgements imposing a single sentence for convictions on multiple counts, see Prosecutor v. Rutaganda, Case No. ICTR-96-3, Case No. ICTR-96-13, Judgement and Sentence, 6 December 1999 (hereinafter the “Rutaganda Judgement and Sentence”); Prosecutor v. Musema, Judgement and Sentence, 27 January 2000 (hereinafter the “Musema Judgement and Sentence”); Prosecutor v. Serushago, Case No. ICTR-98-39-S, Sentence, 5 February 2000 (hereinafter the “Serushago Sentence”). 419 See below Chapter V. 420 Krstic Judgement, above note 417, para. 725. See also Blaskic Judgement, above note 417. The Trial Chamber noted “that genocide, being the gravest offence under Yugoslav law, would have permitted its highest sentence, up to forty years, and that the sentence will fall near that range”; Ibid. para. 717. Krstic was sentenced to forty-six years by the Trial Chamber, his sentence was revised to 35 years by the Appeals Chamber on 19 April 2004. 421 Article 78 (3) of the Rome Statute.

104

chapter iv 6. The Judgement

The power to pronounce judgements, and to impose sentences and penalties “on persons convicted of serious violations of international humanitarian law”,422 is explicitly provided by the Statutes of the Tribunals. Pursuant to Article 23 (2) of the ICTY Statute,423 “[t]he judgement shall be rendered by a majority of the judges of the Trial Chambers” to which separate or dissenting opinions may be attached. The judgement must be delivered in public424 and be accompanied by a reasoned written opinion.425 Prior to the amendment of Rule 108, the accused was entitled to a copy of the judgement or sentence in a language he understands,426 though this is no longer the case. The accused is to be released immediately if a judgement of acquittal is rendered,427 unless the Prosecution informs the Trial Chamber at the time the judgement is announced, of its intention to file a notice of appeal. In this case, the Trial Chamber may “issue a warrant for the arrest and further detention of the accused to take effect immediately”.428 The issuance of such a warrant, reinstates the charges and the status of the acquitted person becomes again that of an accused. The possibility for the Prosecution to appeal a judgement of acquittal is problematic on several counts. It is is sustained that an appeal by the Prosecutor may necessitate a new trial for the same offence, thereby exposing the accused to double jeopardy.429

422

Article 23 (1) of the ICTY Statute; Article 22 (1) of the ICTR Statute. Article 22 (2) of the ICTR Statute. 424 Under Rule 100 of both Tribunals, if the accused is convicted on a guilty plea, the sentence is to be pronounced in a judgement in public and in the presence of the accused. 425 Ibid. In the Furundzija case, the Appeals Chamber considered the right of an accused to a reasoned opinion “to be an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute”. Furundzija Appeal Judgement, above note 425, para. 37. 426 Amendment of 4 Dec. 1998, ICTY Doc. No. IT-Rev.14. 427 Rule 99 (A) of both Tribunals. 428 Rule 99 (B) of both Tribunals. 429 Jerome J. Shestack, A Review and Critique of the Statute of the International Tribunal, in WAR CRIMES IN INTERNATIONAL LAW, Yoram Dinstein & Mala Tabori eds., above note 76, at 208. Scott T. Johnson, On the Road to Disaster: the Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 International Legal Perspectives (1998), 191. Vincent M. Creta, The Search for Justice in the Former Yugoslavia and Beyond: Analyzing the Rights of the Accused Under the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 20 Houston Journal of International Law (1998), 411. In the Aleksovski case the Appeals Chamber while increasing the sentence of the accused, referred to the element of double jeopardy in that the accused had to appear twice to be sentenced for the same conduct with the anxiety and distress entailed, and is detained for a second time after a period of release; Prosecutor v. Aleksovsky, Judgement, IT-95-14/1, 24 March 2000 (hereinafter the “Aleksovsky Appeal Judgement”). 423

the trial before the

AD HOC

tribunals

105

7. The Sentence a) Penalties—The Statutes of both Tribunals430 limit penalties to imprisonment,431 the ICTY and the ICTR may not impose the death penalty, forced labor or fines. Pursuant to Rule 101 (A) of both the ICTR and the ICTY “[a] person convicted by the Tribunal may be sentenced to imprisonment for a fixed term or the remainder of his life”.432 The ‘remainder of his life’ does not seem to be the equivalent of a ‘life sentence’. In the Kayishema case, the Trial Chamber imposed four concurrent remainderof-his-life sentences for the accused and held that “the “remainder of his life” sentence is distinct from a “life sentence” under the laws of most national jurisdictions. This Chamber gives the phrase “remainder of his life” under Rule 101 (A) its plain meaning”.433

In the context of the ICTY, when determining punishment the Trial Chamber “shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”. The ICTR, the Trial Chamber “shall have recourse to the general practice regarding prison sentences in the courts of Rwanda”.434 In the Krstic case for instance,435 the Trial Chamber reaffirmed the nonbinding character of the sentencing practice of the former Yugoslavia for 430

Article 24 (1) Statute of the ICTY; Article 23 (1) Statute of the ICTR. It should be noted that under Article 24 (3) of the ICTY and 23 (3) of the ICTR, the Trial Chamber may, in addition to imprisonment, order the “return of any property and proceeds acquired by the criminal conduct . . . to their rightful owners”. Rule 105 of both Tribunals provides the conditions and modalities of restitution, but the claim for compensation is to be brought before a national court or other competent body. For a claim of compensation, “the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person . . .”; Rule 106 of both Tribunals. See Susanne Malstrom, Restitution of Property and Compensation to Victims, in ESSAYS ON THE ICTY PROCEDURE, above note 177, at 374. On applicable and inapplicable penalties, see Prosecutor v. Tadic, ICTY Case No. IT-94-1-T, Sentencing Judgement, 14 July 1997 (hereinafter the “Tadic Sentencing Judgement’. 432 The wording of Rule 101 (A) of the ICTY is slightly different: “[a] convicted person may be sentenced to imprisonment for a term of up to and including the remainder of the convicted person’s life”. 433 Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1, Judgement and Sentence, 21 May 1999, para. 31 (hereinafter the “Kayishema & Ruzindana Judgement and Sentence”). 434 Article 24 (1) Statute of the ICTY, Article 23 (1) Statute of the ICTR; Rule 101 (B) (iii) of both Tribunals. 435 Krstic Judgement above note 417. The Trial Chamber referred to sentencing practice as follows: “Sentencing by the courts of the former Yugoslavia was based on the provisions of Chapter XVI, “Criminal Acts Against Humanity and International Law” and Article 41 (1) of the SFRY criminal code. The death penalty could be imposed for war crimes and genocide, while a minimum prison sentence of ten years and a maximum of fifteen years were stipulated as the penalty to be imposed for aggravated murders. Article 38 (2) of the SFRY criminal code permitted courts to hand down a sentence 431

106

chapter iv

the Tribunal,436 but noted that it should nonetheless take it into account. There are no guidelines in the Statutes or in the Rules of the Tribunals concerning the length of imprisonment for the commission of crimes falling within the jurisdiction of the Tribunals, or detailing which crimes are or are not to be punished with imprisonment for life. In the Erdemovic case, the Appeals Chamber held that the accused, when entering his initial plea, should have been informed of the difference between a war crime and a crime against humanity, as a crime against humanity is more serious and ordinarily entails a more severe sentence.437 Four years later, on the ranking of crimes the Trial Chamber stated: “Assessing the seriousness of the crimes is not a mere matter of comparing and ranking the crimes in the abstract. It has been argued that crimes against humanity and war crimes are equally serious and that “there is in law no distinction between the seriousness of a crime against humanity and that of a war crime”. No Chamber has yet ruled on the ranking of crimes in a case where an individual has been found guilty of genocide. It can also be argued, however, that genocide is the most serious crime because of its requirement of the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such. . . . A murder, whether qualified as a crime against humanity, a war crime or an act of genocide, may be a graver offence than imposing serious bodily or mental harm upon an individual. In this regard, the Trial Chamber ascribes to the approach taken by the Appeals Chamber that “[t]he level [of penalty] in any particular case [be] fixed by reference to the circumstances of the case”.438

In the case of Delalic and Others, the Trial Chamber set forth the four parameters to be taken into account in fixing the length of the sentence: retribution, protection of society, rehabilitation and deterrence.439 In view of of twenty years in prison in lieu of the death penalty. In 1998, Bosnia and Herzegovina abolished the death penalty and introduced in its place a long-term imprisonment of 20–40 years “for the gravest forms of criminal offences [. . .] committed with intention” . . . The sentence imposed by the Trial Chamber in this case thus falls near the range of sentence afforded by the FRY for the most severe war crimes” (para. 697) (footnotes omitted). For the general practice regarding prison sentences in Rwanda, see the Kambanda Judgement and Sentence; above note 418. 436 In the Blaskic case for example, on the general practice regarding prison sentences in the courts of the former Yugoslavia, the Trial Chamber held that “[r]eference to the practice is only indicative and not binding.” (para. 759), and the Trial Chamber “may draw upon other legal sources in order to determine the appropriate sentence” (para. 760), Blaskic Judgement, above note 417. 437 Erdemovic Judgement II, above note 76. 438 Krstic Judgement, above note 417, para. 700. The approach of the Appeals Chamber cited in the judgement can be found in Prosecutor v. Tadic, ICTY Case No. IT-94-1A, Judgement in Sentencing Appeals, 26 January 2000, para. 69 (hereinafter the “Tadic Judgement in Sentencing Appeals”). 439 Celebici Camp Judgement, above note 403. For a case referring to the case law of the ICTY until 2005 on retribution, deterrence, and rehabilitation as the three primary

the trial before the

AD HOC

tribunals

107

the case law of the ad hoc Tribunals, genocide is often, but not always sentenced with imprisonment for life. Crimes against humanity are rarely punished with life imprisonment, except for the crime of extermination, and in each case the length of imprisonment depends on whether there are aggravating and/or mitigating circumstances. In the case of Akayesu, the accused was found guilty on several counts of genocide and of crimes against humanity. Three consecutive life terms plus eighty years were imposed by the Trial Chamber which decided that the sentences be served concurrently. Therefore, the actual sentence was imprisonment for life.440 The Statute and the Rules are silent on the issue of minimum sentences which was raised in the Tadic case: “The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules. However, the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness”.441

Further guidelines for sentencing call for the taking into account of such factors “as the gravity of the offence and the individual circumstances of the convicted person”.442 Under Rule 101 (B) of both Tribunals, any aggravating

objectives of sentencing, see Prosecutor v. Babic, ICTY Case No. IT-03-72-S, Sentencing Judgement, 29 June 2004. 440 Prosecutor v. Akayesu, Case No. ICTR-96-4, Sentence, 2 October 1998 (hereinafter the “Akayesu Sentence”). Akayesu was sentenced to life imprisonment for the crime of genocide, life imprisonment for direct and public incitement to commit genocide, life imprisonment for crimes against humanity (extermination), three 15 year prison terms for crimes against humanity (murder), 10 years of imprisonment for crimes against humanity (torture), 15 years imprisonment for crimes against humanity (rape), 10 years of imprisonment for crimes against humanity (other inhumane acts). See also Akayesu Judgement, above note 260. In the case of Kayishema and Ruzindana, the accused. Kayishema was sentenced to imprisonment for life on four counts of genocide and crimes against humanity, whereas upon the accused Ruzindana was imposed a sentence of 25 years for one count of genocide. Kamuhanda was sentenced to imprisonment for the remainder of his life for genocide and imprisonment for the remainder of his life for extermination as a crime against humanity, the sentences are to run concurrently, Prosecutor v. Kamuhanda, Case No. ICTR-99-54A-T, Judgement, 22 January 2004. The accused Kambanda found guilty on four counts of genocide and two counts of crimes against humanity, was sentenced to imprisonment for life; Kambanda Judgement and Sentence, above note 418. In the Serushago case, the accused cooperated with the Prosecutor and this led to the arrest of several suspects. Serushago pleaded guilty to genocide and to three crimes against humanity: murder, extermination and torture. He was found guilty on all four counts and was sentenced to a single term of fifteen years of imprisonment. For a case where particularly savage acts were committed by the accused, and where the Trial Chamber found no mitigating circumstances, see Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, Judgement and Sentence, 28 April 2005. Muhimana was sentenced on the count of genocide, of rape and murder as crimes against humanity, for the remainder of his life (para. 619). 441 Tadic Judgement in Sentencing Appeals, above note 438, para. 28. 442 Article 24 (2) of the ICTY; Article 23 (2) Statute of the ICTR.

108

chapter iv

or mitigating circumstances are to be taken into account by the Trial Chamber in determining the sentence. Neither the Statutes, the Rules of the ad hoc Tribunals define ‘aggravating’ or ‘mitigating’ circumstances. In the Krstic case, the Trial Chamber noted that “[a] definition of what is a mitigating circumstance is provided in fact by the SFRY Criminal Code.443 b) Aggravating Circumstances—In the Blaskic case, the Trial Chamber held that “[t]he cruelty of the attack is clearly a significant consideration when determining the proper sentence (para. 783). The number of victims has been raised on several occasions as an aggravating circumstance . . . By noting that the crimes were committed systematically, the Trial Chambers also took into account as aggravating circumstances the recurrence of the crimes . . . the fact that they were repeated, discriminatory and systematic (para. 784) . . . The motive of the crime may also constitute an aggravating circumstance when it is particularly flagrant. Case law has borne in mind the following motives: ethnic and religious persecution, desire for revenge and sadism (para. 785) . . . The status of the victims may be taken into account as an aggravating circumstance. This Trial Chamber notes that in this case many crimes targeted the general civilian population and within that population the women and children. These acts constitute an aggravating circumstance (para. 786) . . . The physical and mental effects of the bodily harm meted out to the victims were also seen as aggravating circumstances” (para. 787).444

In the same case, the Trial Chamber held that failure of a commander to prevent the crime or to punish the perpetrators, may justify a harsher sentence than that imposed on the subordinates.445 Direct participation in the crime has been considered an aggravating circumstance,446 as was command position.447 Informed and voluntary participation of the accused in the crime has been held an aggravating factor the weight of which depends on the “degree of enthusiasm with which the accused participated”.448 Premeditation was taken into account as an aggravating factor in several cases,449 but was not considered to be an aggravating circumstance in the Blaskic case where 443 Krstic Judgement, above note 417, para. 713. The Trial Chamber entered the relevant provision in the Judgement as follows: “Article 42 (2) of the SFRY Criminal Code stated that the judge may determine whether there are mitigating circumstances which are such that they indicate that the objective of the sentence may be achieved equally well by a reduced sentence” (quotation omitted). 444 Blaskic Judgement, above note 417. 445 Ibid., para. 789. 446 See the Tadic Sentencing Judgement, above note 438, para. 57; Furundzija Judgement, above note 335, para. 281–282; Blaskic Judgement, above note 417, para. 790. 447 Ibid., para. 788. 448 Ibid., para. 792. 449 Celebici Camp Judgement above note 403, para. 1235; Serushago Sentence above note 418, para. 30; Kambanda Judgement and Sentence, above note 418, para. 61.

the trial before the

AD HOC

tribunals

109

the Trial Chamber held that “insofar as the accused has been found guilty of crimes against humanity, these circumstances may not be taken into account”.450 In contrast: “When a genocide or a war crime, neither of which requires the element of premeditation, are in fact planned in advance, premeditation may constitute an aggravating circumstance”.451

Despite the fact that nowhere is it stated that the accused has an obligation to cooperate with the Prosecutor, in the Blaskic Judgement, it is stated that “[t]he Trial Chambers have, on several occasions, ruled that failure to co-operate constitutes an aggravating circumstance”.452 c) Mitigating circumstances—Superior orders and substantial co-operation with the Prosecutor by the convicted person before or after conviction, are the only mitigating circumstances explicitly provided by the Statutes453 and the Rules.454 Concerning other mitigating circumstances, the Tribunals have discretion to decide on their weight and relevance when determining the sentence. Even if the Prosecution submits that there are no mitigating circumstances in a given case, “the Trial Chamber has the discretion to consider any factors it considers to be of a mitigating nature”.455 The case law of the Tribunals strikes a balance between mitigating and aggravating factors.456 The weight accorded to material factors and to personal factors is not necessarily equivalent. In the Blaskic case, the Trial Chamber held that “depending on the gravity of the crimes committed, the Trial Chamber may find that the weight of personal factors is limited or even non-existent when determining the sentence”.457 450

Blaskic Judgement, above note 417, para. 793. Krstic Judgement, above note 417, para. 711; Serushago Sentence, above note 418, para. 30. 452 Blaskic Judgement, above note 417, para. 774. 453 Under the Statute of both Tribunals, superior orders do not relieve the accused of criminal responsibility, “but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires”; Article 7 of the ICTY Statute; Article 6 of the ICTR Statute. For a case explicitly referring to the substantial co-operation with the Prosecutor of the convicted person after conviction, see Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, 1 June 2000, para. 27. 454 Rule 101 (B)(ii) of both Tribunals. 455 Krstic Judgement, above note 417, para. 713. 456 In the Kambanda case for example, the Trial Chamber balanced the mitigating factors against the aggravating factors and concluded that “the aggravating circumstances surrounding the crimes negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post at the time he committed the said crimes”. Kambanda Judgement and Sentence, above note 418, para. 126. 457 Blaskic Judgement, above note 417, para. 782. See also Furundzija Judgement, above note 335, para. 284. 451

110

chapter iv

Non-direct participation by the accused, duress, co-operation with the Prosecutor, remorse, voluntary surrender, pleading guilty, and the young age of the accused are all factors which may be considered by the Trial Chamber as mitigating circumstances. If the accused held a junior position within the military or civilian structure, and did not directly participate in the perpetration of the crime, this fact may also be regarded as a mitigating circumstance.458 The Trial Chamber considered that “Duress, where established, does mitigate the criminal responsibility of the accused when he had no choice or moral freedom in committing the crime. This must consequently entail the passing of a lighter sentence if he cannot be completely exonerated of responsibility . . . (para. 769). It appears that, independently of duress, the context in which the crimes were committed, namely the conflict, is usually taken into consideration in determining the sentence to be imposed” (para. 770).459

In the Erdemovic case, the Trial Chamber held that “[t]he order of a superior must, however, also be examined in the light of the related issue of duress”460 and, referring to the jurisprudence of war crime trials held since World War II, the Chamber noted “that when duress was not accepted as grounds for exculpating the accused”,461 international and national tribunals “have nevertheless acknowledged that it might be a mitigating circumstance entailing a more lenient sentence”.462 Co-operation with the Prosecutor is deemed a significant mitigating factor,463 and depends both on the quantity and quality of the information the accused provides.464 Remorse may constitute a mitigating factor if the Trial Chamber is satisfied that the remorse expressed by the accused is sincere.465 The sincerity of the accused is based more on objective criteria, namely the behavior of the accused, than on his statements. Consequently,

458

Blaskic Judgement, above note 417, para. 768; Celebici Camp Judgement, above note 403, where the fact that the accused Mucic had not directly participated in the crimes, was taken into account as a mitigating factor, para. 1248. In the Plavsic case, the Trial Chamber found the advanced age of the accused (a woman of 72), a relevant mitigating circumstance and that eleven years imprisonment are an appropriate sentence; Prosecutor v. Plavsic, Case No. IT-00-39&40/1, Sentencing Judgement, 27 February 2003. 459 Blaskic Judgement, above note 417. However, the fact that the crime was committed in the context of an armed conflict does not seem to be a decisive factor in the determination of the sentence. See Tadic Sentencing Judgement, above note 431, para. 71. 460 Erdemovic Sentencing Judgement I, above note 135 para. 54. 461 Ibid. 462 Ibid. 463 Blaskic Judgement, above note 417, para. 774. Erdemovic Sentencing Judgement III, above note 177 para. 16. 464 Erdemovic Sentencing Judgement I, above note 135, para. 16; Prosecutor v. Todorovic, ICTY Case IT-95-9/1, Sentencing Judgement 31 July 2001, para. 74. 465 Erdemovic Sentencing Judgement I, above note 135, para. 16; Serushago Sentence, above note 418, para. 39.

the trial before the

AD HOC

tribunals

111

remorse is generally not considered a self-containing mitigating circumstance. In view of the case law of the Tribunals, the remorse expressed by an accused who pleaded guilty, surrendered, or cooperated with the Prosecutor, was in several cases, but not in all, held to be sincere.466 In the Blaskic case, the accused voluntarily surrendered, nonetheless, his expression of regret was considered to be dubious.467 The accused Kambanda pleaded guilty and cooperated with the Prosecutor, but he did not express remorse, even when given the opportunity to do so.468 Voluntary surrender of the accused is “deemed a significant mitigating circumstance in determining the sentence”.469 Voluntary surrender occurs rarely and is often combined with remorse, whereas a guilty plea “where entered may in itself constitute a factor substantially mitigating the sentence”.470

466 Krstic Judgement, above note 417, para. 716; Akayesu Sentence, above note 439, para. 2; Musema Judgement and Sentence, above 417, para. 1005; Ruggiu Judgement and Sentence, above note 453, para. 69 to 71. 467 Blaskic Judgement, above note 418, para. 775. In the Jelisic case, the Trial Camber found that the remorse expressed by the accused was not sincere. In the Jelisic Judgement, above note 417, para. 127, the Trial Chamber pointed out that the accused demonstrated no remorse for the crimes he committed. 468 Kambanda Judgement and Sentence, above note 418, para. 51. Kambanda appealed the sentence, among others, on the grounds that the Trial Chamber erred when it failed to consider his guilty plea as a mitigating circumstance. Kambanda Appeals Judgement, above note 358, para. 114. The appeal was dismissed; ibid., para. 120 to 122. 469 Blaskic Judgement, above note 417, para. 776; Prosecutor v. Kupreskic, ICTY Case No. IT-95-16, Judgement, 14 January 2000 (hereinafter the “Kupreskic Judgement”), para. 853. 470 Blaskic Judgement, above note 417, para. 776; Todorovic Sentencing Judgement, above note 464, para 74. Voluntary surrender or the intention to surrender if the suspect was arrested and was not given the opportunity to surrender may constitute a mitigating factor in the sentencing following of a guilty plea. In the Obrenovic case (Prosecutor v. Obrenovic, ICTY Case No. IT-02-60/2-S, Sentencing Judgement, 10 December 2003), the defence maintained that “[A]t the last interview with members of the Office of the Prosecutor before his arrest, he offered to surrender voluntarily. The Defence asserts that despite this offer and Mr. Obrenovic being prepared to surrender, the Prosecution decided to arrest him and therefore he cannot represent that he surrendered voluntarily. The Defence submits that this offer to surrender is a positive factor that should be taken into consideration by the Trial Chamber as a mitigating circumstance” (para. 135). The Trial Chamber held that the offer of voluntary surrender was an established mitigating circumstance (para. 141). For a comparative analysis of countries where the guilty plea is accepted as a mitigating factor, see Prosecutor v. Deronjic, ICTY Case No. IT-02-61-S, Sentencing Judgement, 30 March 2004, para. 230–232. In the same case, the Trial Chamber referred to the jurisprudence of the ICTY and the ICTR in which “[S]everal reasons have been given for the mitigating effect of a guilty plea, such as the showing of remorse and repentance, the contribution to reconciliation and establishing the truth, the encouragement of other perpetrators to come forth, and the fact that witnesses are relieved from giving evidence in court. Furthermore, Trial Chambers took into account that a guilty plea saves the Tribunal the “effort of a lengthy investigation and trial”, and special importance was attached to the timing of the guilty plea” (para. 234) (footnotes omitted).

112

chapter iv

Another mitigating factor is the young age of the accused at the time of the perpetration of the crime. However, an accused considered ‘young’ by the ICTR might not be considered as such by the ICTY.471 “The case-law of the two ad hoc criminal Tribunals on rehabilitation takes the young age of the accused into account as a mitigating circumstance. The assessment of youth varies—whilst the ICTY considers accused aged between 19 and 23 at the time of the facts as being young, the ICTR selects ages from 32 to 37” (footnote omitted).472

In the Jelisic case, the accused was twenty-three years old when he committed the crimes. On appeal,473 the defence argued, inter alia, that the Trial Chamber had inadequately considered his youth. However, the Appeals Chamber noted that the Trial Chamber did consider the age of the accused, and ruled that “[t]he weight to be attached to that circumstance is within the discretion of the Trial Chamber”.474 In the same case the submitted that the accused was not given credit neither for his guilty plea nor for his cooperation with the Prosecution. Here too, the Appeals Chamber found that the mitigating weight lies in the discretion of the Trial Chamber.475 d) Credit for Time Served—An accused tried by an ad hoc Tribunal is detained, in some cases for several years, prior to his conviction or his acquittal. Pursuant to Rule 101 (D), any person found guilty is entitled to credit for time served prior to his conviction. Time served is the time during which “the convicted person was detained in custody pending surrender to the tribunal”, awaiting trial, or pending appeal. Consequently, in calculating the sentence, the period of detention is deducted from the sentence. If the accused was already sentenced by a national court, in considering the penalty to be imposed on him after conviction, the Trial Chamber “. . . shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served”.476 471

Blaskic Judgement, above note 417, para. 778. In the Blaskic case, the accused’s age was 32 at the time of the occurrence of the facts determined in the Judgement. The Trial Chamber noted that the accused was given considerable responsibilities at a particularly critical period and held “that his age is to some degree a mitigating circumstance”; ibid. 473 Jelisic Judgement, above note 417, para. 136 to 139. 474 Jelisic Appeal Judgement, above note 402, para. 131. 475 Ibid., para. 121 and 124. The three grounds of appeal concerning mitigating circumstances failed; the Appeals Chamber held that the cross-appellant did not discharge the burden to demonstrate that the Trial Chamber erred in the exercise of its discretion; ibid., para. 122, 127, 131. 476 Article 10 (3) Statute of the ICTY, Article 9 (2) Statute of the ICTR. For credit for the period during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal, see Todorovic Sentencing Judgement, above note 464. 472

the trial before the

AD HOC

tribunals

113

Under Rule 102 of both Tribunals, “[t]he sentence shall begin to run from the day it is pronounced”. In practice, few cases end after the trial as appeals may be filed by the accused as well as by the prosecution under the conditions provided by the Statute.477 With the filing of a notice of appeal, the enforcement of the judgement is stayed until the decision on appeal is rendered, “the convicted person meanwhile remaining in detention”.478 If for any reason the convicted person is not in detention, such as in a case where provisional release was granted, a warrant of arrest is issued by the Trial Chamber against the convict. He is to be notified of the conviction and sentence “and the procedure provided in Rule 103 shall be followed”,479 that is imprisonment in a State designated by the Tribunal if the time limit for appeal has elapsed and none of the parties gave notice of appeal.480 Under the Rules of both Tribunals, notice of appeal must be filed no later that thirty days from the date of the pronouncement of the judgement,481 therefore it has to be decided promptly whether or not to appeal the judgement or the sentence. As was mentioned previously,482 global sentences for convictions on multiple counts are imposed by both the ICTY and the ICTR, even if Rule 87 (C) of the latter still requires the Trial Chamber to “impose a sentence in respect of each finding of guilt”.483 The sentence is decided upon in deliberations held in private that are to remain secret. If the accused considers the sentence rendered to be excessive or unfair, and if a global sentence was imposed upon him, he is deprived of the basic information required to make an informed decision. The ICTY Rules require that the appellant’s brief of argument specify the grounds of appeal.484 As the appellant has no means to know how many years of imprisonment he was sentenced to for each count of guilt, a thorough analysis of the sentence is impossible, and the grounds of appeal as well as the argumentation can only be general and superficial. For example, in an appeal against a global sentence, it is impossible to demonstrate that the sentence imposed for a specific charge was not in accordance with the evidence when it is not indicated for which finding of guilt the sentence was imposed. A global sentence lacks vital details in order for the accused to discharge his burden

477

See below Chapter V. Rule 102 (A) of both Tribunals. 479 Rule 102 (B) of both Tribunals. 480 For the enforcement of sentences, see below Chapter VI. 481 Rule 108 of both Tribunals. 482 See above Chapter IV.7. 483 Ibid. 484 Rule 108 of the ICTR requires that the grounds of appeal be filed at the stage where notice of appeal is given. 478

114

chapter iv

of demonstrating that the Trial Chamber erred in the exercise of its discretion when deciding on the weight to be attached to a mitigating circumstance. Global sentences for convictions on multiple counts hamper the accused’s right to appeal the sentence from a substantive point of view, and may affect the fairness of the trial.

CHAPTER V

THE POST TRIAL PROCEEDINGS

The Statutes of both Tribunals provide for the right of appeal485 as well as for review proceedings,486 thereby reflecting the developments in international human rights since the establishment of the Nuremberg and Tokyo Tribunals which had no provision for an appellate chamber.487 The ICTY and The ICTR are therefore the first international Tribunals where appeals against convictions for violations of international humanitarian law can be lodged. On the international level, the parties as well as the Tribunals, had no precedent on which to rely. For the International Criminal Court, the case law of the appeals chambers of the Tribunals,488 constitute valuable precedents both from a substantive and procedural aspect. The Rules contain very few separate provisions on procedure and evidence in appellate proceedings and under Rule 107 of both Tribunals, the Rules that apply to proceedings in the Trial Chambers “shall apply mutatis mutandis to proceedings in the Appeals Chamber”. However, some of these Rules are inapplicable or cannot simply be transposed to appellate proceedings without adaptation and reinterpretation. Certain issues appear only in appeal proceedings. For example, the extent of the burden lying on the appellant to demonstrate that the Trial Chamber erred in law or in fact, can only be found in the Appeals Chamber case law. The same is true for the applicable standards with respect to the reconsideration by the appeals chamber of factual findings by the Trial Chamber.

1. Appellate Proceedings The right of appeal is recognized with respect to both, the convicted person and the Prosecutor.489 For an appeal to be heard by the appeals chamber, 485

Article 25, Statute of the ICTY; Article 24, Statute of the ICTR. Article 26, Statute of the ICTY; Article 25, Statute of the ICTR. 487 In his Report, the Secretary-General stressed that the right of appeal should be provided for in the Statute as it “is a fundamental element of individual civil and political rights and has, inter alia, been incorporated in the International Covenant on Civil and Political Rights”; above note 65, para. 116. 488 Pursuant to Article 12 of the Statute of the ICTR, the members of the Appeals Chamber of the ICTY shall also serve as members of the Appeals Chamber of the ICTR. 489 Article 25 (1), Statute of the ICTY; Article 24 (1), Statute of the ICTR. 486

chapter v

116

specific preliminary conditions have to be fulfilled at the outset: a notice of appeal, the appellant’s brief or arguments and the respondent’s brief of argument must be filed within the period prescribed by the Rules. The preliminary requirements of appeals at the ICTY and at the ICTR vary substantially, and shall therefore be discussed separately. 1.1

Preliminary Requirements

The party seeking to challenge a judgement or sentence of an ICTY Trial Chamber, is to file a written notice of appeal setting forth the grounds within thirty days of the pronouncement of the judgement. Within seventy-five days of filing of the notice of appeal, a brief stating all the arguments and authorities are to be filed by the appellant.490 Thereafter, the respondent has forty days to file his brief of argument. Under the present Rules of the ICTY, service upon the other party of the notice of appeal and the respective briefs or arguments is not effectuated by the appellant or the respondent. At the ICTR, the party seeking to appeal a judgement or a sentence is required to file “a written notice of appeal setting forth the grounds”,491 within “thirty days from the reception of the full judgement and sentence in both English and French”.492 The time limit for the filing of the appellant’s brief is ninety days, and thirty days for the filing of the respondent’s brief. Any document filed in appellate proceedings, starting with the notice of appeal, has to be served upon the other party by the filing party.

490 Rule 111 of the ICTY. With regard to time limits for the filing of motions or requests, under ICTY Rule 127 (B), an extension of time may be granted upon a showing of good cause. In the Stakic case, the Appeals Chamber found that five days delay to serve the Prosecution’s response brief to defence counsel did not justify a grant of 28 additional days, nor did the fact that counsel received an incomplete copy thereof (2 pages less), but complexity of issues in the appeal justified a grant of extra time and the “grant of the extension sought by the Appellant will not delay the consideration of this appeal or prejudice the opposing party” (para. 5); Prosecutor v. Stakic, ICTY Case No. IT-97-24-A (Before the Pre-Appeal Judge), Decision on the Defence Motion for Extension of Time, 26 April 2004. The allowed number of pages of a motion or a brief is 100 pages (or 13,500 words), unless permission to exceed this number was granted by the Tribunal; see note 2 in ibid. and Practice Direction on the Length of Briefs and Motions, IT/184 Rev. 1, 5 March 2002; ses also Prosecutor v. Blaskic, ICTY Case No. IT-95-14-A, Decision on Appellant’s Request for Extension of Page Limits and Filing Deadline, 24 July 2003. 491 Rule 108 (A) of the ICTR. Notices of appeal and appeal briefs may be filed either with the Registry of the Tribunal in Arushaor with the Registrar at the Appeals Unit of the ICTR Appeals Chamber at The Hague; see Rule 117ter of the ICTR. The Rules of the ICTR require that the appeal be filed in the form of an Appeal Book together with a Book of Authorities where the documents have to be presented in a specific order; see Rule 117bis of the ICTR. 492 Rule 111 of the ICTR.

the post trial proceedings

117

Prior to the amendment of Rule 108 of the ICTY in December 2001, the Rules of both Tribunals were silent as to what the appellant is expected to include in the brief of argument or in the notice of appeal. Pursuant to amended Rule 108 of the ICTY on the notice of appeal “The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought”.

Under the same Rule, modifications of the grounds of appeal can be requested by motion, and may be authorized by the Appeals Chamber upon showing good cause. According to Judge Karibi-White, the brief of argument should include a summary of the contentions of the appellant in the court below, and “[wh]ere the appellant intends to abandon any point taken in the court below, this must be stated. Even if not expressly stated, the omission in the brief and grounds of appeal of a point canvassed in the court below is an abandonment by implication and should be so deemed by the appeals chamber. Similarly, where counsel intends to introduce a point of law, not taken in the court below, this should be indicated in the brief ” (footnotes omitted).493

Unless additional evidence was submitted after the trial,494 the Appeals Chamber does not rehear the evidence but relies on the record of proceedings from the lower Chamber. Under the present Rule 109 of the ICTY, “[t]he record on appeal shall consist of the trial record, as certified by the Registrar”, meaning the totality of the trial. In contrast, under Rule 109 of the ICTR, the record on appeal shall consist of the parts of the trial record designated by the parties. At the ICTR, the parties have thirty days from the certification of the trial record by the Registrar, to designate the parts of the record which they deem necessary for the decision on appeal.495 In case of disagreement, each party is to designate the parts of the trial record it considers necessary, this must be carried out within sixty days of the certification of the trial record.496 Prior to the amendment of Rule 109, the ICTY had a similar provision.497

493

Adolphus G. Karibi-Whyte, Appeal Procedures and Practices in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 655. On the admissibility of additional evidence on appeal pursuant to Rule 115 see Prosecutor v. Krnojelac, ICTY Case No. IT-97-25, Judgement, 17 September 2003. 494 See below Chapter V.1. 495 Rule 109 (B) of the ICTR. Whatever the choice of the parties may have been, the Appeals Chamber may call for the complete trial record; Rule 109 (F) of the ICTR. 496 Rule 109 (C) of the ICTR. 497 ICTY Doc. No. IT/32/REV. 14, 4 December 1998.

chapter v

118

The date for the hearing of appeals from ICTY judgements or sentences is set after the expiry of the periods prescribed by the Rules.498 Extension of time-limits may be granted by the Trial Chamber upon good cause being shown.499 1.2

Rule 114 of the ICTR

In the ICTR’s Rules of Procedure and Evidence, Rule 114 is entitled “Date of Hearing”. Until 1998 and since its amendment in 2002, it reads: “After the expiry of the time-limits for filing the briefs provided for in Rules 111, 112 and 113, the Appeals Chamber shall set the date for the hearing and the Registrar shall notify the parties”.

Prior to its amendment, from 1999 to 2002, Rule 114 read as follows: “After the expiry of the time-limits for filing the briefs provided for in Rules 111, 112 and 113, the Appeals Chamber may rule on such appeals based solely on the briefs of the parties, unless it decides to hear the appeal in open court. The Registrar shall notify the parties accordingly”.

Under this Rule, a substantive and final decision affecting the accused’s future for years—if not for the rest of his life—could have been reached in closed session without the accused being present or represented. The hearing of the appeal in “open court” in the presence of the accused or counsel would have been the exception. The previous version denied the minimum guarantees to which the accused is entitled as accorded by the ICTR Statute itself.500 The Appeals Chamber is, inter alia, empowered to revise decisions of the Trial Chamber and even to increase the sentences imposed.501 Furthermore, Rule 114 was not in conformity with Article 24 of the ICTR 498

Rule 114 of the ICTY. Rule 127 of the ICTY; Rule 116 of the ICTR. See for example Prosecutor v. Akayesu, ICTR-96-4-A, Decision, Suspension of Time-Limit for Filing Briefs, 21 October 1999; Prosecutor v. Akayesu, ICTR-96-4-A, Order (For Translation of Appellant’s Brief ), 29 March 2001. 500 The requirement of a fair trial is not limited to first instance proceedings, it “obviously includes every one of its stages” (Prosecutor v. Blaskic, Decision of Trial Chamber I, above note 224, para. 4). The previous version of Rule 114 was not the result of a drafting error as the terms “the Appeals Chamber may rule on such appeals based solely on the briefs of the parties, unless it decides to hear the appeal in open court” were included as an amendment of the Rule. The rights of the accused have been discussed previously, nonetheless it might be worthwhile to mention those that could have been affected should ICTR Rule 114 were applied. Article 20 (2) of the ICTR Statute clearly states that when charges are brought against the accused, he “shall be entitled to a fair and public hearing”. See also Jelisic Appeal Judgement, above note 402; see also Hirvisaari v. Finland, European Court of Human Rights, no. 49684/99, ECHR, Judgement of 27 September 2001, para. 30–32, for the impact of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms on an appeal decision. 501 See below Chapter V. 1. 499

the post trial proceedings

119

Statute pursuant to which “[t]he Appeals Chamber shall hear appeals from persons convicted . . . or from the Prosecutor”. The term “shall hear” might not necessarily mean that all appeals must be heard orally. Appeals on decisions rendered on preliminary motions or other interlocutory appeals which are not of a substantive nature may be disposed of on the basis of written arguments. However, a judgement rendered on appeal is substantive par excellence, and may affect the rights of the accused more than any other decision rendered previously in his case. In practice, appeals have been heard by the ICTR Appeals Chamber, where the parties made oral submissions and the proceedings were public, the appeals were therefore not decided exclusively on the party’s briefs.502 1.3 The Grounds of Appeal The Statutes unequivocally state on which grounds appeals may be filed. They should rely on: “a) an error on a question of law invalidating the decision; or b) an error of fact which has occasioned a miscarriage of justice”.503

Not any error of law can constitute a grounds for appeal, only one invalidating the judgement or the sentence challenged. Similarly, not any error of fact is considered a valid ground of appeal. In the Kupreskic case, the Appeals Chamber restated the principle and the exception: “The general rule is that the Appeals Chamber will not entertain arguments that do not allege legal errors invalidating the judgement, or factual errors occasioning a miscarriage of justice, apart from the exceptional situation where a party has raised a legal issue that is of general significance to the Tribunal’s jurisprudence. Only in such a rare case may the Appeals Chamber consider it appropriate to make an exception to the general rule” (footnote omitted).504

In the same case, the Appeals Chamber discussed the applicable standard with respect to the reconsideration of factual findings by the Trial Chamber. The Appeals Chamber will overturn a factual finding if the appellant demonstrated that the error of the Trial Chamber resulted in a miscarriage of justice.505 Furthermore

502 Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (hereinafter the “Akayesu Appeals Judgment”); Kambanda Appeals Chamber Judgement, above note 358; Kayishema and Ruzindana Judgement (Reasons), above note 191; Prosecutor v. Serushago, Case No. ICTR-98-39-A, Reasons for Judgement, 6 April 2000. 503 Article 25 (1) Statute of the ICTY; Article 24 (1) Statute of the ICTR. 504 Prosecutor v. Kupreskic, ICTY Case No. IT-95-16, Appeal Judgement, 23 October 2001 (hereinafter the “Kupreskic Appeal Judgement”). The grounds of appeal provided by the Rome Statute are more extensive; see below Chapter V.1. 505 Ibid.

120

chapter v [t]he appellant must establish that the error of fact was critical to the verdict reached by the Trial Chamber . . . it is not each and every error of fact that will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but only one that has occasioned a miscarriage of justice.506

The Rules of the Tribunals do not specify what constitutes an ‘error on a question of law’ or an ‘error of fact’, nor the extent of proof required to establish the error. It seems that errors of law cover different categories including: errors involving the application or the interpretation of conventions, issues of cumulative convictions, the manner of the exercise of judicial discretion as well as bias on the part of a judge.507 In the Furundzija case, the Appeals Chamber held that where an appellant alleges an error of law, he must at least identify the alleged error, but even if the arguments of the appellant do not support his contention, the Appeals Chamber may decide that he did not fail to discharge the burden.508 The burden of establishing that the Trial Chamber erred in the exercise of its discretion lies on the appellant.509 In the Kambanda case, the grounds of appeal contending that the Trial Chamber erred in failing to properly take certain mitigating circumstances into account, did not succeed. The appellant failed

506

Ibid., para. 29. Prosecutor v. Mucic and Others, ICTY Case No. IT-96-21, Sentencing Judgement, 9 October 2001. On the issue of cumulative convictions, see Prosecutor v. Krnojelac, ICTY Case No. Case No. IT-97-25, Judgment, 15 March 2002, where the Trial Chamber (referring to the Delalic Appeals Judgment, para. 412–413) stated that “Cumulative convictions (convictions for different crimes against international humanitarian law based on the same conduct) are permissible only if each crime involved has a materially distinct element not contained in the other” (para. 502) (footnote omitted). See also Prosecutor v. Naletilic and Martinovic, ICTY Case No. Case No. IT-98-34-T, Judgement, 31 March 2003, para. 339. In the Kunarac case, Judge Schomburg and Judge Güney . . . respectfully disagree with the decision of the majority that a conviction for persecutions, a crime against humanity pursuant to Article 5 of the Statute, can be cumulated with another conviction under Article 5 of the Statute, if both convictions are based on the same criminal conduct. We believe that the decisions of the Appeals Chamber in Krnojelac, Vasiljevic, and Krstic, according to which intra-Article 5 convictions for persecutions with other crimes against humanity found in that Article are impermissibly cumulative, are based on a correct application of the Celebici test. Therefore, we fail to see any cogent reason allowing for a departure from this jurisprudence (para. 1) (footnotes omitted). Joint and Dissenting Opinion of Judge Schomburg and Judge Güney on cumulative convictions in Prosecutor v. Kordic and Mario Cerkez, ICTY Case No. IT-95-14/2-A, Judgement, 17 December 2004. 508 Furundzija Appeal Judgement, above note 425. In this case, the Appeals Chamber held that bias on the part of a judge can be established: 1) by proving the actual bias of the judge, 2) by showing that the judge has some material or other interest in the matter being litigated, and 3) if a reasonable and properly informed person, would reasonably apprehend bias. 509 Jelisic Appeal Judgement, above note 402. 507

the post trial proceedings

121

to discharge the burden to demonstrate the error. The Appeals Chamber stated that for the appeal to succeed, the appellant “must show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules”.510

One of the grounds in the Tadic appeals case was the “unfair sentence”.511 The Appeals Chamber found no error in the exercise of the Trial Chamber’s discretion and held that “the sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead”.512

An appeal by the defence can only be argued on the grounds filed by the appellant. The brief of argument (the notice of appeal at the ICTR), is to include all the grounds the appellant intends to raise, he may not, unless leave is granted, raise grounds other than those stated. In the Kambanda case, the accused was detained for several months outside the Detention Unit of the Tribunal. This issue was not raised before the Trial Chamber. The Appeals Chamber stated: “As a matter of principle, where a party has failed to bring an issue to the attention of the court of first instance it is debarred from raising it on appeal. Exceptions to this rule will only be made where the particular circumstances of the case demand, for example because the matter could not realistically have been raised earlier. It is for the moving party to convince the court that such exceptional circumstances exist (para. 41) . . . As the Appellant has failed to establish any reason for which he should exceptionally be allowed to raise the question of the legality of his detention for the first time on appeal, this ground of appeal is rejected” (para. 42).513

The restrictions applying to the appellants on issues that may be argued on appeal, do not apply to the Appeals Chamber which is not confined to grounds formally raised by the parties. Once seized of an appeal lodged by either party, the appeals chamber may “pursuant to its inherent powers as an appellate body”514 raise issues proprio motu as stated in the Erdemovic case:

510

Kambanda Appeals Chamber Judgement, above note 358, para. 115. Tadic Judgement in Sentencing Appeals, above note 438, para. 20. 512 Ibid. However, the Tadic “totality of culpable conduct” test and the Akayesu “different elements of interests” test are considered “likely to violate the double jeopardy rule because they do not guarantee that cumulative convictions are reserved for materially distinct offenses only”. Hong S. Wills, Comment, Cumulative Convictions and the Double Jeopardy Rule: Pursuing Justice at the ICTY and the ICTR, 17 Emory Int’l Law Review (Spring 2003), at 387–388. 513 Kambanda Appeals Chamber Judgement, above note 358. 514 Erdemovic Judgement II, above note 76. 511

122

chapter v “The Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties”.515

In principle, the hearing, assessing and weighing of the evidence presented by the parties is the task of the Trial Chamber. The Appeals Chamber will substitute the findings of the Trial Chamber “[o]nly where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is ‘wholly erroneous’ ”.516

Grounds relating to the admissibility of evidence often involve questions of law and fact. In order to challenge a judgement for a significant factual error in the Appeals Chamber, further evidence may be required. The findings of fact by the Trial Chamber may be determinant for the application of the law. A party may file a motion to present evidence “which was not available to it at the trial”.517 Such a motion must be filed and served to the other party at least fifteen days before the date of the hearing. In the Kupreskic case, the Appeals Chamber noted that there is no provision in the Statute or the Rules allowing appeals on decisions of the Appeals Chamber made pursuant to Rule 115.518 Where additional evidence is admitted under Rule 115, the Appeals Chamber reconsiders the factual findings of the Trial Chamber in light of the additional evidence submitted and it may affirm, reverse or revise the decision of the Trial Chamber according to its own findings. 515

Ibid., para. 16. Kupreskic Appeal Judgement, above note 504, para 30. 517 Rule 115 (A) of both Tribunals. In the Erdemovic case, the Appeals Chamber considered that “if the Defence believed that the evidence was of assistance to its case, it should have brought this evidence to the attention of the Trial Chamber for the purposes of the Sentencing Hearing. The appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing”. Erdemovic Judgement II, above note 76, para. 15. See also Prosecutor v. Kvocka and Others, ICTY Case No. IT-98-30/1-A, Decision on Appellant’s Motion to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004. 518 Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16-A, Decision on Motions by Zoran Kupreskic, Marjan Kupreskic and Vladimir Santic for Leave to Appeal the Decision of the Appeals Chamber dated 29 May 2001, 8 June 2001. The Appeals Chamber found the motions manifestly ill-founded, frivolous, and abusive of the court process. It ordered fees and costs (of the assigned counsel) associated with ill-founded and frivolous motions to be withheld by the Registrar. For access to additional confidential evidence, see Prosecutor v. Blaskic, ICTY Case No. IT-95-14-A, Decision on Dario Kordic and Mario Cerkez’s Request for Access to Tohomir Blaskic’s Fourth Rule 115 Motion and Associated Documents, 5 February 2004. On the admissibility of additional evidence on appeal pursuant to Rule 115 see Prosecutor v. Krnojelac, ICTY Case No. IT-97-25, Judgement, 17 September 2003. 516

the post trial proceedings

123

Pursuant to Rule 115(B) of both Tribunals, the presentation of additional evidence shall be authorized by the Appeals Chamber “if it considers that the interests of justice so require”. Referring to the “Rule 115 Decision” in the Tadic case, the Appeals Chamber held that: “[f ]or the purposes of this case, the Chamber considers that the interests of justice require admission only if: (a) the evidence is relevant to a material issue; (b) the evidence is credible; and (c) the evidence is such that it would probably show that the conviction was unsafe”.519

There are sometimes practical and circumstantial reasons for the absence of documentary evidence or witnesses at trial. The decision of the Trial Chamber may have been perfectly reasonable in view of the evidence presented at trial, however, additional evidence might demonstrate that in reality an error occurred. Where additional evidence can be located showing that the finding of guilt by the Trial Chamber was erroneous, the role of the Appeals Chamber in such an instance is fundamental in preventing a miscarriage of justice. Where the new evidence shows that an error occurred in the decision of the Trial Chamber, the Appeals Chamber may a) remand the factual issue to the original Trial Chamber “for it to determine a new factual issue that arises on appeal”,520 or b) call evidence and determine the issue itself.521 In the Kupreskic case, the Appeals Chamber referred, inter alia, to the Celebici Camp case,522 to clarify the position of the Appeals Chamber with respect to such new evidence: “when the Appeals Chamber is hearing evidence which relates to matters other than the issues litigated in the Trial Chamber, the Appeals Chamber is in the same position as a Trial Chamber, so that Rule 107 applies to permit the Appeals

519 Tadic Rule 115 Decision of the Appeals Chamber dated 15 October 1998, quoted in the Kupreskic Appeal Judgement, above note 504. See also Prosecutor v. Jelisic, ICTY Case No. 95-17/1-A, Decision on Request to Admit Additional Evidence, 15 November 2000 at 3, where the Appeals Chamber held that “the admission of additional evidence is in the interests of justice if it is relevant to a material issue, if it is credible and if it is such that it would probably show that a conviction or sentence was unsafe”. 520 Kupreskic Appeal Judgement, above note 504, para. 47. 521 Ibid. In the Kayishema and Ruzindana case, the Appeals Chamber stressed that “it is the responsibility of the Appellant to indicate clearly which particular evidentiary material he relies upon. Claims that are not supported by such precise references to the relevant parts of the record on appeal will normally fail, on the ground that the Appellant has not discharged the applicable burden” (para 137). Kayishema and Ruzindana Judgement (Reasons), above note 191. 522 Prosecutor v. Delalic and Others, ICTY Case No. IT-96-21-A, Order in Relation to Witnesses on Appeal, 19 May 2000.

124

chapter v Chamber to admit any relevant or probative evidence pursuant to Rule 89(C)” (footnote omitted) (emphasis in the Judgement).523

In the case of Hadzihasanovic & Kubura, the Prosecutor filed an application to re-open the case against the accused for the purpose to submit 24 new documents. The prosecution relied on the case-law of the Tribunal since the Statute and the Rules do not provide for the right to re-open a case. The Trial Chamber dismissed the application considering that “the Prosecution did not demonstrate reasonable due diligence in order to identify and produce the twenty-four documents before the close of its case on 23 July 2004” (para. 109).524 Rule 115 governs the submission of additional evidence concerning a fact that was considered at trial, whereas the introduction of evidence relating to a new fact which became known only after trial, is governed by Rule 119. Referring to the Tadic Rule 115 Decision, the Appeals Chamber restated that “where an applicant seeks to present a new fact which becomes known only after trial, . . . Rule 119 is the governing provision. In such a case the Appellant is not seeking to admit additional evidence of a fact that was considered at trial, but rather a new fact” (footnotes omitted) (emphasis in Kupreskic Appeal Judgement).525

The Kupreskic Appeal Judgement is an important precedent concerning the principles governing the submission of additional evidence before the Appeals Chamber. Furthermore, this Judgement clarifies the standard to be applied by the Appeals Chamber in determining whether, in light of the additional evidence admitted, a miscarriage of justice has occurred. After an extensive review of the case law of national jurisdictions on this matter,526 the Appeals Chamber decided to adopt its own standard rather than those of domestic jurisdictions. The standard adopted by the Appeals Chamber is whether the appellant has demonstrated that no reasonable tribunal in fact would have reached a conclusion of guilt on the basis of the evidence that was presented before the Trial Chamber together with the additional evidence admitted by the appeals chamber.527 The additional evidence together with the record on appeal, constitutes

523

Kupreskic Appeal Judgement, above note 504, para. 55. Prosecutor v. Hadzihasanovic & Kubura, ICTY Case No. IT-01-47-T, Decision on the Prosecution’s Application to Re-Open its Case, 1 June 2005. 525 Kupreskic Appeal Judgement, above note 504, para. 48. 526 Ibid. 527 Kupreskic Appeal Judgement, above note 504, see para. 75. 524

the post trial proceedings

125

the basis upon which the Appeals Chamber is to pronounce its judgement.528 Neither the Statutes nor the Rules of the Tribunals stipulate whether the accused may appeal an acquittal. In the Jelisic case, the Appeals Chamber clarified this issue.529 Jelisic was convicted for violations of the laws and customs of war and for the commission of crimes against humanity but was acquitted on the count of genocide. The Prosecution appealed against the acquittal on the count of genocide. The accused (the crossappellant) filed two notices of appeal.530 The Appeals Chamber found that “the cross-appellant was barred from raising arguments regarding the acquittal on the count of genocide in his appellant’s brief, since Article 25 of the Statute does not confer on an accused person the right to appeal from an acquittal. However, the Chamber held that if the Prosecution sought to reverse the acquittal, then the cross appellant in his brief in response would be permitted to support his acquittal”.531

According to the Statutes of both Tribunals, the Appeals Chamber may affirm, reverse or revise the judgement of the Trial Chamber.532 The function of the Appeals Chamber is not to hear the case anew, but to determine whether the Trial Chamber reached the right decision with respect to the alleged grounds of error of law or of fact. The role of the Appeals Chamber is to correct errors which invalidated the decision of the Trial Chamber, or errors of fact resulting in a miscarriage of justice. Its determination will not necessarily be “whether the trial court was right in the manner the case was decided, but whether the reason was right”.533 It has to be shown by the appellant that the decision of the Trial Chamber was taken outside of the discretionary framework provided by the Statute and the Rules, or that the facts found could not reasonably be said to lead to the conclusion. It should be noted that neither the Statutes nor the Rules prevent the ad hoc Tribunals from increasing a sentence rendered by the Trial Chamber. The Appeals Chamber may therefore increase or reduce the sentence, as well as acquit an accused found guilty by the Trial Chamber. In the case of Alexsovski, the Trial Chamber sentenced the accused to two 528

Rule 117 (A) of the ICTY, Rule 118 (A) of the ICTR. Jelisic Appeal Judgement, above note 402. 530 The first notice of appeal was filed against the oral judgement, the second one after the delivery of the written judgement. 531 Jelisic Appeal Judgement, above note 402, para. 7. 532 Article 25 (2) Statute of the ICTY; Article 24 (2) Statute of the ICTR. Pursuant to Rule 117 (C) of the ICTY and Rule 118 (C) of the ICTR “In appropriate circumstances, the Appeals Chamber may order that the accused be retried before the Trial Chamber”. 533 Adolphus G. Karibi-Whyte, Appeal Procedures and Practices in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, above note 16, at 655. 529

126

chapter v

and a half years imprisonment.534 The Appeals Chamber revised the sentence to seven years’ imprisonment.535 At the end of a joint trial in the Kupreskic case, the five accused persons were found guilty by the Trial Chamber.536 The Appeals Chamber revised the fifteen years imprisonment sentence of the appellant Josipovic to twelve years imprisonment.537 The sentence of the appellant Santic was revised from twenty-five years to eighteen years imprisonment.538 The Appeals Chamber reversed the convictions of the three Kupreskic appellants,539 and ordered their immediate release from the United Nations Detention Unit in The Hague.540 The judgement on appeal is to be rendered by a majority of judges, together with or followed by a written reasoned opinion.541 As in the first instance, the judgement is to be pronounced in public and the parties and counsel are entitled to be present.542 The sentence is to be “enforced immediately”.543 If the accused was acquitted by the Trial Chamber, or provisionally released, the judgement may be delivered in his absence. Unless the Appeals Chamber confirmed the acquittal, an order of arrest or surrender to the Tribunal will be issued.544 The ad hoc Tribunal for the former Yugoslavia, was the first International Criminal Tribunal where a judgement may be appealed. As was mentioned, no appeal could be lodged against decisions of the Nuremberg and Tokyo Tribunals. Consequently, prior to the ICTY and the ICTR there was no precedent in criminal matters regarding the authority of Appeals Chamber decisions; more specifically, there was no determination as to whether such decisions are binding on Trial Chambers. The Appeals Chamber was placed above the Trial Chamber and was instituted to correct specific errors of law and fact in decisions of the Trial Chamber, and to examine whether the discretion of the Trial Chamber in the determination of the case was exercised appropriately. Therefore the latter is bound through such

534 Prosecutor v. Aleksovski, ICTY Case No. IT-95-14/1, Judgement, 25 June 1999 (hereinafter “Aleksovski Judgement”). 535 Aleksovski Appeal Judgement, above note 334. 536 Kupreskic Judgement, above note 469. 537 Kupreskic Appeal Judgement, above note 504. 538 Ibid. 539 Zoran and Mirjan Kupreskic, whom are brothers, surrendered on 6 October 1997; Vlatko Kupreskic was arrested on 18 December 1997. 540 Kupreskic Appeal Judgement, above note 504. 541 Rule 117 (B) of the ICTY; Rule 118 (B) of the ICTR. On whether the decisions of the Appeals Chamber are binding on Trial Chambers and whether the Appeals Chamber is bound to follow its previous decisions, see Aleksovski Appeal Judgement, above note 334. 542 Rule 117 (D) of the ICTY. Rule 118 (D) of the ICTR. Rule 118 (E) of the ICTR provides that the written judgement is to be filed with the Registry of the Tribunal or with the Registrar of the Appeals Unit in The Hague. 543 Rule 118 (D) of the ICTY. Rule 119 (D) of the ICTR 544 Rule 118 (B) of the ICTY. Rule 119 (B) of the ICTR.

the post trial proceedings

127

corrections. The question remains whether decisions of the Appeals Chamber are binding on the Trial Chambers in similar cases. This issue was dealt with in the Aleksovksi case where the Appeals Chamber held that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers”.545 The Appeals Chamber based its position essentially on the “hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact . . . (sub-para. 1) the fundamental mandate of the Tribunal . . . cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law (sub-para. 2) and . . . the right of the accused to have like cases treated alike. This will not be achieved if each Trial Chamber is free to disregard decisions of law made by the Appeals Chamber, and to decide the law as it sees fit” (sub-para. 3) (footnote omitted).546

2. Review Proceedings The Statutes of the Tribunals provide that a Trial Chamber or the Appeals Chamber may review a judgement in light of a newly discovered fact that could have been decisive in reaching the decision.547 A newly discovered fact is a one which becomes known only after trial.548 The applicant seeking to present a new fact must show that the newly discovered information was not available to the party and that it “could not have been discovered through the exercise of due diligence”.549 A review proceeding is to be distinguished from the submission of additional evidence of a fact which was known at trial. In the latter case Rule 115 is the applicable Rule and it concerns appellate and not review proceedings. Not all decisions of the Trial Chambers may be submitted for review. In the Barayagwiza case, the Appeals Chamber emphasized that only a final judgement “which terminates the proceedings” may be subject to review.550 545

Aleksovski Appeal Judgement, above note 334. Ibid., para. 113. In the Milosevic case, the amici curiae submitted that “the case law of the Appeals Chamber is not eo ipso binding, but rather a matter of guidance for the Trial Chamber”. The Trial Chamber held that this “clearly is not the case”; Prosecutor v. S. Milosevic, ICTY Case No. IT-99-37-PT, Decision on Preliminary Motions, 8 November 2001. 547 Article 26 Statute of the ICTY; Article 25 Statute of the ICTR. 548 See above at 124 and note 525. 549 Rule 119 of the ICTY; Rule 120 of the ICTR. For a decision on a motion for review which does not fulfil the criteria set out in ICTY Rules 119 and 120, see for example Prosecutor v. Josipovic, ICTY Case No. IT-95-16-R.3, Decision on Motion for Review, 2 April 2004. 550 Prosecutor v. Barayagwiza, Case No. ICTR-97-19, Prosecutor’s Request for Review or Reconsideration, 31 March 2000, above note 147; see below at 321–322 and notes 1603–1604. 546

128

chapter v

The nature of a decision is not the only criteria for the admissibility of a request for review,551 but such request may dismissed on the grounds that the impugned decision was not a final judgement.552 The defence may at any time submit a motion for a review of the judgement, whereas the Prosecution may do so only within one year of the final judgement.553 Where a motion for review is filed at the time that the judgement subject to the motion is under appeal, the Appeals Chamber may return the case to the Trial Chamber.554 A request for review of a judgement is subject to a preliminary examination of the same Chamber that initially issued the decision. The judgement will be reviewed only if the majority of the Chamber which delivered it, agree that the new fact could have been “a decisive factor in reaching a decision”.555 A further judgement will be issued after the parties have been heard. If the judgement resulting from a review proceeding is rendered by a Trial Chamber, it may be appealed.556

3. Enforcement of Sentences Under Rule 119 (A) of the ICTR, a sentence pronounced by the Appeals Chamber “shall be enforced immediately”.557 In practice ‘imprisonment’ in the strict sense will not occur immediately as both, the ICTY and the ICTR, are Tribunals without prisons. The detention center of the UN in Sheveningen and in Arusha is not intended to serve as permanent prison facilities for the ad hoc Tribunals. The Statutes of the Tribunals provide that imprisonment is to be served in a state which, in response to a request by the Security Council, has indicated its willingness to accept the convicted person.558 Where a sentence was rendered in the first instance, the transfer of the convict to the state of imprisonment “shall be effected as soon as possible after the time limit for appeal has elapsed”.559 Pending the finalization 551 Prosecutor v. Kanyabashi, Case No. ICTR-96-15-AR72, Decision (Motion for Review or Reconsideration), 12 September 2000. 552 Semanza c. Le Procureur, Affaire No. ICTR-97-20-A, Requête en Révision de la Décision de la Chambre d’Appel du 31 Mai 2000, 4 Mai 2001. 553 Rule 119 of the ICTY; Rule 120 of the ICTR. 554 Rule 122 of the ICTY; Rule 123 of the ICTR. 555 Rule 120 of the ICTY; Rule 121 of the ICTR. 556 Rule 121 of the ICTY; Rule 122 of the ICTR. 557 For the ICTY, see Rule 102 under which “[t]he sentence shall begin to run from the day it is pronounced”. 558 Article 27 Statute of the ICTY; Article 26 Statute of the ICTR. 559 Rule 103 (B) of both Tribunals. There are exceptions however. Ruggiu was arrested on 23 July 1997 and sentenced on 1 June 2000 to twelve years imprisonment for direct and public incitement to commit genocide and for a crime against humanity. He was a

the post trial proceedings

129

of arrangements with the state where the sentence will be served, the convicted person remains in custody.560 The President of the Tribunal and the Trial Chamber which sentenced the accused designate the place of imprisonment which shall be “subject to the supervision of the Tribunal”.561 At the same time, imprisonment “shall be in accordance with the applicable law of the State concerned”.562 The Statutes and the Rules of the ad hoc Tribunals are silent on issues such as safeguards, minimum standards of treatment of prisoners and conditions of incarceration. On the enforcement of sentences concerning persons convicted by the ICTY, the position of the Secretary-General was expressed as follows: “given the nature of the crimes in question and the international character of the tribunal, the enforcement of sentences should take place outside the territory of former Yugoslavia.”563

Erdemovic was the first accused to be convicted by the ICTY and in view of the situation prevailing in the Balkans, the Trial Chamber held that his security, and the respect of the Tribunal’s decisions, could not be ensured if the sentence was to be executed in that region.564 Persons convicted by the ICTY are serving their sentence in Germany (Tadic) and Finland (Furundzija and Aleksovski); Erdemovic was released after having served his sentence in Norway. Agreements were negotiated by the Registry of the ICTY with the mentioned States,565 under which it was agreed that the sentences of the convicted persons shall be served in their prisons. The Model Agreement for the Enforcement of Sentences

key prosecution witness in a joint trial (the Military I case). At the request of the Prosecutor, his incarceration in the United Nations Detention Center in Arusha was required until completion of his testimony in the mentioned case; see Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, The President’s Decision on the Prosecutor’s Ex Parte Application for the continued detention of Georges Ruggiu in the Tribunal’s Detention Facility in Arusha, 17 January 2003. 560 Rule 103 of the ICTY only. See Rule 119 for the ICTR. 561 Article 27 Statute of the ICTY; Article 26 Statute of the ICTR; Rule 104 of both Tribunals. 562 Article 27 Statute of the ICTY; Article 26 Statute of the ICTR. 563 Report of the Secretary-General Pursuant to Resolution 808, above note 65, para. 121. 564 Erdemovic Sentencing Judgement I, above note 135. 565 John R.W.D. Jones, THE PRACTICE OF INTERNATIONAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, above note 62, at 115. Forth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/1997/729, 18 September 1997, para. 154. Fifth Annual Report of the ICTY, above note 160, para. 253. Sweden also accepted to be a possible host for ICTY prisoners; Mary Margaret Penrose, The Question of Detention for International War Crimes, 16 New York Law School Journal of Human Rights (2000), at 556. An Agreement was concluded with Austria in 1999 and with Spain in 2000 on the acceptance of convicts in their facilities.

130

chapter v

prepared by the United Nations, states that the terms and conditions governing the enforcement of sentences, will not apply automatically to the state willing to accept ICTY prisoners but on a case by case basis only.566 The implication of this is that a state does not automatically accept any convict, and its consent is sought by the Registrar for every particular convict. The Agreement allows the state a certain degree of flexibility in enforcing the sentence imposed; however, it “upholds the primacy of the Tribunal in particular with respect to the supervision of the imprisonment”.567 Under the Rules of the ICTR, imprisonment is to be served in Rwanda or in another state designated by the Tribunal which has indicated its willingness to accept convicts.568 Agreements were signed with Mali, Benin and Swaziland for the serving of sentences of persons convicted by the ICTR.569 According to an ICTR Fact Sheet, for socio-cultural reasons, the ICTR prefers that sentences be served in Africa and the countries that have already made agreements with the ICTR. These countries “will not have the authority to alter the terms of incarceration without the consent of the ICTR”.570 The preference of the Rwanda Tribunal will, to some extent, prevent the prisoner from being placed in a completely different cultural and linguistic environment, although the family and counsel may still have difficulties to reach the prisoner due to the distance between Rwanda and a host country such as Mali for example. ICTR prisoners convicted of the same crime but sentenced to imprisonment in different countries, will be treated differently depending on the Tribunal’s choice of country. For example, beyond the differences in conditions of detention, parole and commutation laws are more stringent in African and in some Middle Eastern states (or in the US), than in European countries. In the absence of an international prison system, an ICTY prisoner serving his sentence in a Scandinavian country and an ICTR prisoner incarcerated in an African State, even if convicted for the same crimes, will be subject to different imprisonment conditions. The ICTR Statute allows for the serving of the sentence in Rwanda which might be the worst choice, despite the ease of visitation. This issue goes beyond that of equal treatment of convicted persons or the adequacy of conditions under which a penalty is executed. According to the Report of Amnesty International: 566

See David Tolbert and Asa Rydberg, Enforcement of Sentences, in ESSAYS ON THE ICTY PROCEDURE, above note 177, 373–384; Enforcement of Sentences Imposed by the Tribunal in ICTY Yearbook 1996, at 227. 567 Ibid. 568 Rule 103 (A) of the ICTR. 569 Sixth Report of the ICTR, para. 133. 570 Former Fact Sheet No. 1 (06/01), Website of the ICTY.

the post trial proceedings

131

“More than 130,000 people were detained, most in connection with the 1994 genocide. Most were held without trial. Many of the trials that were held were unfair. Most were held in conditions amounting to cruel, inhuman or degrading treatment; many died as a result. Torture or ill-treatment of detainees, leading to scores of deaths, were reported. Scores of people “disappeared”. At least 111 people were sentenced to death, but no executions were reported”.571

Beyond Rwanda where the shadow of the horrors of 1994 may take many years to fade, the role of the ad hoc Tribunals in the prevention of ill treatment of convicted persons by ensuring adherence of the host countries to the minimum principles of humanity and dignity is vital. However, as for the physical conditions of incarceration, the ICTR faces problems not encountered by the ICTY. This issue was raised in the Sixth Annual Report of the ICTR as follows: “There is . . . a practical problem unique to the Tribunal; the need to obtain resources to upgrade facilities and contribute to the costs of enforcement of sentences in African countries that have agreed to assist the Tribunal in this area but do not have the resources to do so”.572

For ICTY prisoners, the issue is not one of resources, there are simply not enough states willing to accept them. The difficulties encountered by the ad hoc Tribunals were expressed by the former President of the ICTY: “Over the coming months, and years, we will complete their trials and appeals and may then face a situation where we have more convicted persons than there are States that have agreed to enforce their prison sentence. As we expect to obtain custody of more accused persons, this deficiency will become even more critical”.573

In the Erdemovic case,574 the Trial Chamber developed several criteria to be taken into account and issued guidelines for the determination of the place where imprisonment is to be served: “The Trial Chamber will . . . take account of the . . . conditions of enforcement of the sentence in an effort to ensure due process, the proper administration of justice and equal treatment for convicted persons . . . The principle of nulla poena sine lege must permit every accused to be cognizant not only of the possible consequences of conviction for an international crime and the penalty but also the conditions under which the penalty is to be executed. Moreover, the Trial Chamber is concerned about reducing the disparities which may 571 Amnesty International 1998 Annual Report on Rwanda (the Rwandese Republic); see Amnesty International Website . 572 Sixth Annual Report of the ICTR, above note 151, para. 133. 573 Gabrielle Kirk McDonald, The International Criminal Tribunal for Former Yugoslavia, 13 American University International Law Review (1998), at 1427. 574 Erdemovic, Sentencing Judgement I, above note 135.

132

chapter v result from the execution of sentences (para. 70). . . . The Trial Chamber . . . recommends that there be some degree of uniformity and cohesion in the enforcement of international criminal sentences” (para. 72).575

In the same case, the Trial Chamber restated international standards governing the treatment of prisoners and ruled that “the penalty imposed as well as the enforcement of such penalty must always conform to the minimum principles of humanity and dignity which constitute the inspiration for the international standards governing the protection of the rights of convicted persons . . . that a person who has been convicted of a criminal act is not automatically stripped of all his rights . . . that the penalty imposed on persons declared guilty of serious violations of humanitarian law must not be aggravated by the conditions of its enforcement”.576

Sentences are to be enforced in accordance with the domestic laws and procedures of the states which expressed their willingness to accept convicted persons “under the supervision of the International Tribunal” as stated in the Report of the Secretary-General577 and as provided by the Statute and the Rules of the ad hoc Tribunals.578

4. Pardon or Commutation of Sentences Neither the Statutes nor the Rules of the Tribunals specifically address the issue of pardoning or commutation of sentences. Eligibility for a pardon or commutation depends on the national law of the state where the convict serves his sentence. If a convict is eligible for a pardon or commutation of

575

Ibid. Ibid., para. 74. The Erdemovic decision requires that accepting states adhere to international standards governing the protection of the rights of convicted persons and more specifically, to those enshrined in “article 5 of the Universal Declaration of Human Rights and article 3 of the European Convention on Human Rights . . . article 10 of the International Covenant on Civil and Political Rights, article 5, paragraph 2 of the American Convention on Human Rights” (footnotes omitted) Ibid. Other general and regional instruments referred to by the Trial Chamber in this context were the Standard Minimum Rules for the Treatment of Prisoners; Basic Principles for the Treatment of Prisoners; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; European Prison Rules and Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal. Ibid. It should be noted that if the Erdemovic Sentencing Judgment is often referred to by the Tribunals on issues relating to the validity of a plea, no reference to the principles established for the execution of sentences by this judgment, was found in the later decisions of the ad hoc Tribunals. 577 Report of the Secretary-General Pursuant to Resolution 808, above note 65, para 121. 578 Article 27 Statute of the ICTY; Article 26 Statute of the ICTR. Rule 104 of both Tribunals. 576

the post trial proceedings

133

sentence under the law of the state where he is imprisoned “the state concerned shall notify the International Tribunal accordingly”.579 The President of the Tribunal in consultation with the judges decides “on the basis of the interests of justice and the general principles of law”580 whether a “pardon or commutation is appropriate”. The use of the term ‘appropriate’ rather than ‘whether pardon or commutation is agreed upon or rejected . . .”, raises the question of the advisory or binding nature of the decision of the President of the Tribunal on the notifying state. In view of the supervisory powers of the Tribunal in matters pertaining to the execution of sentences, the decision of the Tribunal is placed hierarchically above internal decisions of the host country. The sentence is imposed by the Tribunal and not by a domestic court, accordingly, the notifying state executes the sentence “on behalf of the International Tribunal in application of international criminal law and not domestic law. . . . that State may not in any way, including by legislative amendment, alter the nature of the penalty so as to affect its truly international character” (emphasis in original).581

In the Erdemovic case, respect for the duration of the penalty and respect for international rules governing the conditions of imprisonment, were considered the two essential elements deriving from the international character of the prison sentence rendered by the Tribunal. Concerning the duration of the penalty and recognizing that the state where the sentence is served controls certain aspects of the enforcement of the penalty, the Trial Chamber held that “no measure which a State might take could have the effect of terminating a penalty or subverting it by reducing its length”.582 Regarding remission of sentence and provisional release applicable in the state of imprisonment, the Trial Chamber “wishes that all the measures of this type be brought beforehand to the attention of the President of the International Tribunal who, pursuant to Article 28 of the Statute, moreover, is entitled to review pardons or commutations of penalties before such measures are granted or enforced”.583

The Statute provides that: “If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly.

579 Article 28 and Rule 123 of the ICTY. Article 27 of the ICTR Statute is identical in substance. 580 Ibid. 581 Erdemovic Sentencing Judgment I, above note 135, para. 71. 582 Ibid., para. 73. 583 Ibid.

134

chapter v The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law”.584

The Rules of the Tribunals contain the general standards for the determination of the matter.585 The factors to be considered are: a) The gravity of the crime(s) for which the prisoner was convicted, b) whether similarly situated prisoners have been granted a pardon or commutation, c) whether the prisoner has demonstrated rehabilitation, and d) any substantial cooperation of the prisoner with the Prosecutor.586 These are the factors which the President of the Tribunal is to take into account, but there may be others which might be considered when deciding on the appropriateness of a granting of pardon or commutation. The list of factors provided by the relevant Rule is not a closed list. Comparison with other similar cases may to some extent, reduce the disparities among prisoners in the enforcement of sentences deriving from national laws. For example, two convicts were found guilty of crimes against humanity and were both sentenced to twenty years imprisonment. Both meet the additional criteria. They serve their sentences in different countries. One prisoner may have resort to parole after five years, the other may be entitled to parole after having served two-thirds of the sentence, or may not be entitled at all depending on the law of the state where the sentence is served. Even if a minimum time period before commutation was to be established by the Tribunals, this could lead to inequalities between the ‘international prisoner’ and the ‘local prisoner’ convicted for the same crime. Furthermore, inequalities in the application of internal law relating to commutation of sentences between convicts of the same Tribunal, might derive from the sentence itself. A comparison between the sentence imposed upon Kambanda587 and Kayishema588 for example, will clarify the matter. Kambanda was found guilty on four counts of genocide and two counts of crimes against humanity, and was sentenced to imprisonment for the remainder of his life. Kambanda pleaded guilty and his co-operation with 584

Article 28, Statute of the ICTY; Article 27, Statute of the ICTR. Rule 125 of the ICTY; Rule 126 of the ICTR. 586 Ibid. See Prosecutor v. Simic and Others, ICTY Case No. IT-95-9, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadic, 3 November 2004. 587 Kambanda Appeals Chamber Judgment, above note 358. Referring to the “imprisonment for the remainder of his life” in the Akayesu case, the Appeals Chamber stated that “The sentence should be served in accordance with the applicable law of the State in which the convicted person will be detained . . . As a result, the sentence may always be reduced if so provided for under the applicable law of the State and if the President of the Tribunal, in consultation with the judges, so decides”. Akayesu Appeals Judgment, above note 502, para. 422. 588 Kayishema & Ruzindana Judgment (Reasons), above note 191. 585

the post trial proceedings

135

the Prosecutor was considered substantial. Kayishema’s co-operation was not considered as substantial. Kayishema was found guilty of four counts of genocide. In the sentence imposed to Kayishema, the Trial Chamber stressed that it did not intend a “life sentence” as understood in most national jurisdictions, but to give the “remainder of his life” sentence its plain meaning.589 The Kayishema sentence is therefore not subject to possible reductions even if the law of the State where he will serve his sentence provides for commutation of sentences. In the Kambanda Appeals Judgement, albeit in a footnote, the Appeals Chamber confirmed that “this maximum sentence (and any sentence of imprisonment) is served in accordance with applicable law of the State in which the convicted person is imprisoned . . . It is also always subject to possible reductions if provided under the applicable law in this State and if the President of the Tribunal in consultation with the Judges so decides (Article 27 of the Statute)” (words in brackets in original).590

The intention of the Trial Chamber in the Kayishema sentence is clear: the sentence is not subject to Article 27 of the ICTR Statute on pardon and commutation of sentences. On 9 December 2001, after their appeals were dismissed by the Appeals Chamber of the ICTR, six convicts, Kambanda, Akayesu, Kayishema, Ruzindana, Musema, and Serushago, were transferred to Bamako, Mali, where they will serve their sentences.591 The authorities in Mali are to apply the sentences as rendered by the International Tribunal and will be confronted with a situation where the national law relating to commutation of sentences applies unequally to convicts sentenced to imprisonment for the remainder of their life. The national law on commutation of sentences will be inapplicable as far as Kayishema is concerned, but could apply to Kambanda, to Akayesu and to prisoners sentenced for life by the national courts. Only if the authorities in Mali decided, nonetheless, to notify the International Tribunal (or the body replacing it after the ICTR fulfilled its task) on this issue, a decision could be taken on the basis of the principles of justice and the general principles of law and taken into account whether similarly situated prisoners have been granted pardon or commutation.

589 Ibid. It should be noted that when a “remainder-of-his-life sentence” is imposed, no credit is given for the period of time during which the convict was detained prior to his conviction. 590 Footnote 144 of the Kambanda Appeal Judgement, above note 358. 591 ICTR Press Release, Former Prime Minister and Five Other Convicts Sent to Prison in Mali, ICTR/INFO-9-2-296, Arusha 11 December 2001. Agreements for the execution of sentences were also concluded with Benin and Swaziland.

136

chapter v

The harshest sentence imposed on an accused by the ICTY was of 46 years, thereafter the Appeals Chamber imposed a new sentence of 35 years instead.592 It is not yet known how many years it will take the two ad hoc Tribunals to accomplish their task, however they were not meant to be permanent institutions. In her investigation program, the Prosecutor of the ICTR envisaged the Prosecution of 136 new suspects by 2005.593 Since 2004 Rule 11bis of both Tribunals as amended allows for the referral of cases to the authorities of a state in whose territory the crime was committed, in which the accused was arrested, or having jurisdiction and willing and adequately prepared to accept such a case. The Referral Bench may order such referral “after being satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out”.594 Under Rule 104 of the Rules of Procedure and Evidence of both Tribunals “all sentences shall be supervised by the Tribunal or a body designated by it”. The entity most likely to be designated is the International Criminal Court. Beyond the supervisory functions, the designated body will hear requests relating to pardoning and commutation of sentences of ICTY and ICTR convicts.

592 See Krstic Judgement, above note 417, and Prosecutor v. Krstic, ICTY Case No. IT-98-33-A, Judgement (Appeals Chamber), 19 April 2004. In the Jelisic case, the Appeals Chamber affirmed the sentence of 40 years of imprisonment imposed by the Trial Chamber; supra note 402. 593 According to the Letter of the President of the ICTR addressed to the President of the Security Council, “Trials of twenty five accused are currently in progress . . . Trials of the maximum of fourteen persons at large will commence in 2007–2008. It is estimated that by 2008, the Tribunal would have completed trials involving sixty-five to seventy persons”. (UN Doc. S/2005/336, 24 May 2005). Since May 2004, 22 accused have arrived at the ICTY. Depending on how many new indictees or fugitives will arrive, the President of the ICTY, Judge Meron, estimates that it will take at least until the end of 2009 to complete the trials of the accused within the custody of the Tribunal. See United Nations Document S/2005/343, 25 May 2005, Letter dated 25 May 2005 from the President of the International Tribunal For the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 addressed to the President to the Security Council, Annex I, Assessment and Report of Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Security Council Resolution 1536 (2004), at 6–7. 594 Rule 11bis (B). The gravity of the crimes and the level of responsibility of the accused are part of the evaluation of wether to refer a case to another court; see Rule 11bis (C) and Security Council Resolution 1534 (2004) which relates to “the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions”. See Prosecutor v. Dragomir Milosevic, ICTY Case No. IT-98-29/1-PT, Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should be Referred to Another Court Under Rule 11bis, 1 February 2005; Prosecutor v. Stankovic, ICTY Case No. IT96–23/2-PT, Decision for Further Information in the Context of the Prosecutor’s Request Under Rule 11bis, 9 February 2005; and ibid., Decision on Referral of Case Under Rule 11bis, 17 May 2005. See also Rule 11bis of the ICTR.

CONCLUDING REMARKS

The Statutes of the ad hoc Tribunals and Rules as amended constitute a significant improvement in the field of due process of law when compared to the guarantees of the defendants at the Nuremberg and Tokyo trials. Despite the fact that the ICTY and the ICTR have been in operation only since the mid 1990’s, these Tribunals created and developed an unprecedented jurisprudence in the field of international humanitarian law595 The Tribunals achieved remarkable results in the elaboration of an international criminal procedure which for the most part takes account of the developments in the field of international human rights. The amendment of the Rules of Procedure and Evidence together with the jurisprudence elaborated by the Tribunals, were a tool to overcome some of the shortcomings of the Statutes and the Rules as initially adopted.596 According to the Report of the Secretary-General “it is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of the proceedings”.597 The Rules of the ad hoc Tribunals provide that the ‘legal rights’ of investigated and accused persons are to be respected as of the questioning of a suspect of by the Prosecutor. There are however situations where the person is questioned by an agent of a national authority or of an international entity as well as cases where the arrest is performed prior to any interrogation. No provision in the Statutes or in the Rules of Procedure and Evidence privides that the interrogation and arrest of a suspect or accused person must be performed in accordance with international norms applicable in 595 See Goran Sluiter, International Criminal Proceedings and the Protection of Human Rights (The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal for the Former Yugoslavia), 37 New Eng. L. Rev. (Summer 2003), 935; Susan W. Tiefenbrun, The Paradox of International Adjudication: Developments in the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the World Court, and the International Criminal Court, North Carolina Journal of International Law & Commercial Regulation (2000), 570; Stefan Wäspi, Die Arbeit der Internationalem Strafgerichtshöfe für das ehemale Jugoslawien und Ruanda; Herausforderungen für die Anklage im internationalen Umfeld, NJW (2000), 2449. 596 For problematic issues and shortcomings during the phase preceding the initial appearance of the accused see above Chapter II-1 to 4, on inequality of arms and lack of appropriate structure for defence counsel, above II-5.1; long pre-trial waiting periods, above Chapter III-1; the anonymous witness issue, above Chapter IV-2.4; on the discovery of documents, above Chapter II-5.1; and the absence of specific provisions for compensation in case of unlawful arrest or detention or miscarriage of justice, above at Chapter II-3. 597 Report of Secretary General, above note 65, para. 106.

138

concluding remarks

those circumstances. Interrogations and arrests by a national or international entity are performed following an order of the Tribunal and constitute the application of that order or decision. Hence, a clear provision reminding the executing entity of its obligations under international law does not constitute interference in internal affairs or infringe on the sovereignty of states. Since the ‘legal’ rights of the accused are to be read to him/her in a language he/she understands by an agent of the arresting authority, that same document should explicitly contain the human rights to which the arrested person is entitled. Under the jurisprudence of the ad hoc Tribunals, a sentenced person is to be treated humanely at all times during the serving of the sentence in the host state, a person not yet found guilty should be entitled to no less. Furthermore, an explicit provision for the right of the person to challenge the legality of his arrest would have permitted to discover errors before, rather than after months of detention. It might be contended that the Tribunals are temporary and that the effects of any improvement in the Rules would be minimal. However, the non-permanent nature of the Tribunals is irrelevant to a person mistakenly accused and detained. It is even more difficult to comprehend that violations of the rights of a detained person could occur when in the Detention Unit of the ICTR598 The argument that individuals suspected or accused of having committed the most heinous crimes known to mankind do not deserve rights is contradicted by the principle that an accused is to be presumed innocent unless the contrary is proved. Further, the experience of the ICTY and of the ICTR show that not all accused persons were finally found guilty.599 The amount of decisions and time required of Trial Chamber and Appeals Chamber to hear requests for disclosure of evidence shows that disclosure obligations of the Prosecutor are misinterpreted or not strictly adhered to. The discretion left to the Prosecutor to decide what constitutes exonerating evidence should be replaced by an explicit rule providing that any piece of evidence containing explicit or implicit exonerating elements, is to be discovered no less than incriminating evidence. In spite of the positive developments at the ICTY concerning temporary release, there should be a rule providing that in cases where pre-trial detention of an accused exceeds two years, the accused should under predetermined conditions, be temporarily released. The International Tribunal for Former Yugoslavia and for Rwanda constituted an important step towards the International Permanent Criminal Court. The substantive, procedural and evidentiary groundwork of the 598 See the Barayagwiza case (above at 42), and the arrest and detention of Mr. Twagirimana at the United Nations Detention Center in Arusha (above at 37–38). 599 See above at 36–37.

concluding remarks

139

ICTY and of the ICTR in international criminal law and in international criminal procedure will remain the legacy of the ad hoc Tribunals once their mission will be completed. The shortcomings of the Tribunals as a system for international criminal prosecution assisted to a significant degree to prevent their repetition in the context of the ICC.

INTERMEDIARY PART

THE ADOPTED SYSTEM FOR INTERNATIONAL CRIMINAL TRIALS

Criminal legal systems and inter state criminal proceedings were the models that existed when international tribunals were established.600 Although international tribunals have been based on and thought of in light of two main criminal legal systems, essentially the common law and the continental (or the adversarial and the inquisitorial) systems, they should first be seen each as a whole, with their own inner balances and basic assumptions.601 Such an approach might shed light over the criminal system of the International Criminal Court and help to see it as a complex singular entity. Shedding light over different procedures in the ICC, their origins and the assumptions behind them as they served in their original legal systems, leads to the question whether the trial procedures of the Court can be seen as one harmonized complex. As the Court’s procedure is derived from different systems, perhaps the most important question in this context is the question of balance. A close look at its implications and resulting uniqueness shows that the founders of the ICC did not fully opt for one legal system over the other.602 600 See e.g. Helen Brady, Evidence in the ICC Statute, in: Flavia Lattanzi and William A. Schabas (Eds.), ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Vol. I, Sirente Pub. (1999) (hereinafter “ESSAYS ON THE ROME STATUTE”), 281–285, Daryl A. Mundis, Current Development: New Mechanisms for the Enforcement of International Humanitarian Law (“New Mechanisms for the Enforcement of International Humanitarian Law”), 95 A.J.I.L. (2001) 934–952; Patricia A. McKeon, Note: An International Criminal Court: Balancing the Principle of Sovereignty against the Demands for International Justice, 12 St. John’s J.L. Comm. (1997), at 537. 601 Patricia M. Wald further writes that: “. . . The ICTY employs a sometimes uneasy and frequently awkward blend of the two systems” . . . “Even though the ICTY has over 100 Rules setting out the ingredients of a mix which initially tilted in favor of the common law adversarial trial, invariably interstitial questions arise in response to which judges from different systems will tend to apply ‘what comes naturally.’ For instance, civil law judges may question witnesses much more freely than in our system”. Patricia M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court, 5 Wash. U.J.L. & Pol’y (2001), (hereinafter “The ICTY Comes of Age”), at 90. 602 See Kai Ambos, International Criminal Procedure: Adversarial, “Inquisitorial” or Mixed? (hereinafter: “International Criminal Procedure”), Int’l Criminal Law Review (2003), 34. Kristina D. Rutledge, Comment and Note: Spoiling Everything—but for Whom? Rules of Evidence and Procedure and International Criminal Proceedings, 16 Regent U.L. Rev., 151–165, especially at 164–165 (hereinafter: “Comment and Note: Spoiling Everything”) (2003/2004).

142

intermediary part 1. The Adversarial and the Inquisitorial System

The most striking difference between the basic assumptions behind the two legal systems might be described as an active approach on the part of the court in the inquisitorial legal tradition, as opposed to a somewhat passive approach which is taken by the courts in the legal tradition of the common law.603 The adversarial legal system has its roots in the common law developed through history by English monarchs and feudals.604 The common law is based on common people as its justice makers: the juries.605 Its history is partially from a feudal history (in which a baron would adhere to two sides before making a judgement),606 where custom has been considered as a legal source (therefore creating the contemporary legacy of an abiding precedent),607 and the need for a fair procedure, as established in the equity courts.608 In England, criminal trials were similar to civil litigation,609 and to some extent they still are. The modern reliance upon common people actually means that typically people with no prior legal training are the judges of a question of fact in the context of a specific legal question. This question of fact and its legal context are brought before them, and they remain passive, judging the question according to the materials presented to them.610 603 See Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS—A TOPICAL APPROACH, New Jersey, Prentice Hall Career & Technology Pub. (1994), at 4 (hereinafter “COMPARATIVE CRIMINAL JUSTICE SYSTEMS”). 604 David Lusty, Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials, 24 Sydney L. Rev. 2002, at 369, Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 235. 605 Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, at 165, Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 235. 606 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 95–96. Gabriel Halevi, Directions of Development in the Criminal Judicial Justice and in Evidence Law in Israel, 4 Kiryat HaMishpat Law Review (2004) [In Hebrew] (hereinafter “Criminal Judicial Justice”), 124. Steve Uglow, CRIMINAL JUSTICE, London, Sweet & Maxwell Pub., (1995) at 128. 607 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS above note 4, 96–97; Barton L. Ingraham, The STRUCTURE OF CRIMINAL PROCEDURE: LAWS AND PRACTICE OF FRANCE, THE SOVIET UNION AND THE UNITED STATES, Connecticut, Greenwood Press (1987) (hereinafter ‘THE STRUCTURE OF CRIMINAL PROCEDURE’), at 7; Gabriel Halevi, Criminal Judicial Justice, above note 606, at 122. 608 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, 96–98; Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches with Special Reference to the American and German Legal Systems, (hereinafter “The Burden of Proof ”), Studies and Materials on the Settlement of International Disputes, Vol. 3, Kluwer Law International (1998), at 36. 609 James F. Stephens, Criminal Procedure from the Thirteenth to the Eighteenth Century in Selected Essays in Anglo-American Legal History, compiled and edited by Committee of American Law Schools (1907–1909), at 444. 610 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, 148–153. Juliane Kokott, The Burden of Proof, above note 608, at 184–185.

the adopted system for international criminal trials

143

Two more significant actors assist the juries in their work: the Prosecutor and the attorney who makes the case for the defence,611 both of whom are professionally trained attorneys at law.612 Their roles are quite defined: they play the role of opposing sides: one for the prosecution, the other for the defence. The Prosecutor brings forth the charges and the results of a professional police inquiry;613 the role of the defence counselor is to rebut the claims of the Prosecutor. To complete the picture, the presiding judge helps in defining the legal question, and acts as a barrier of evidence. He is a barrier meant for a process of reconstruction: since the inquiry in the case takes place outside the court, agents other than the juries, the prosecution must convince the court of the authenticity of its inquiry.614 Therefore, the barrier of evidence, which is a question of law to be decided by the judge, is meant to assure this reconstruction of the inquiry, by disqualifying any evidence. Evidence that would be disqualified would be evidence that is not authenticated according to the criminal procedure and evidence law.615 Each and every step of the inquiry in the case is thus gradually reconstructed, as to question the convictions of the jury in the question of the defendant’s guilt as charged by the prosecution. Each step is accompanied by the rebuttal for the defence.616 Therefore, in essence, the juries are to remain passive throughout the procedure, as the case is being brought before them. They are not allowed to consider evidence outside the scope of hearsay evidence,617 which is evidence that is not established by the rules of presenting it and authenticating it according to evidence law. The prosecution in an adversarial process is not aimed to carry out an acquitting investigation for the defence per se,618 but the burden of proof rests essentially on the prosecution which has to prove the guilt of the defendant. Thus the prosecution and defence act as adversaries, hence the expression: 611 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 4603, at 150. Juliane Kokott, The Burden of Proof, above note 608, at 184. 612 See Reichel’s Chapter on professionalism in both systems, above note 603, at 215; Gabriel Halevi, Criminal Judicial Justice, above note 606, at 160. 613 Steve Uglow, CRIMINAL JUSTICE, above note 606, at 146. 614 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603. Steve Uglow, CRIMINAL JUSTICE, above note 606, at 131. 615 See Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603. For exceptions see Steve Uglow, CRIMINAL JUSTICE, above note 606, at 214–233. 616 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 151–152. Juliane Kokott, The Burden of Proof, above note 608, at 9. Steve Uglow, CRIMINAL JUSTICE, above note 606, at 128. 617 Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, 169–170. 618 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 153. Although the prosecutor is considered to be an Officer of the Court, he still is to lift the burden of persuasion in the adversarial system: Juliane Kokott, The Burden of Proof, above note 608, at 9.

144

intermediary part

an “adversarial” legal system.619 Out of the rivalry between the parties, third parties—the jurors—decide the question of guilt, within the scope of the legal questions presented by the presiding judge, who remains neutral throughout the conflict.620 In an adversarial legal system, since the question to be decided is mostly a question of fact, an appeal has to do with legal questions and questions of relevance and admissibility, sometimes more than it has to do with questions of fact. Perhaps this can explain the importance of setting legal precedents by high courts, which bind the lower courts in an adversarial legal system: it forms the arena for “fair play” by the adversaries. Hence the importance of a cross examination in adversarial legal systems: a cross examination is conducted by the parties, and is meant to reconstruct the inquiry into the charges against the defendant. Therefore, it is essential that a cross examination be made, and neither evidence nor witnesses can be considered as admissible without the defence being able to cross examine and undermine its sources through the person who witnessed the events (in case of testimonies) or the person who gathered the evidence (in case of evidence). Without the defence being able to cross examine, it would be unfair towards the defendant to admit such evidence: the defendant does not have the means of the police and the prosecution to make an acquitting inquiry of his own, and is left defenceless in front of the adversary in such conditions. Even though the Prosecutor acts as an agent of the court, who aims at finding the truth rather than merely aspiring for a conviction, the rebuttal for the defence cannot be thoroughly heard in such conditions. Therefore, the barrier of evidence and cross-examination is critical for the inquiries of a trial in the common law adversarial legal system.621 It is a system in which common people are left passive, in order to decide the legal and factual questions presented to them by the presiding judge and the parties.622 Only in such circumstances may the jurors fairly weigh the evidence according to the legal question, both of which are brought before them.623 The trial in an adversarial legal system ends with a conviction or acquittal, appeal proceedings are considered as a post-conviction stage. The 619 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 151, Barton L. Ingraham, The STRUCTURE OF CRIMINAL PROCEDURE, above note 607, at 9. 620 See Kai Ambos, International Criminal Procedure, above note 602, at 4; Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 150, 152; Barton L. THE STRUCTURE OF CRIMINAL PROCEDURE, above note 607, at 9. 621 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 150; Halevi, Criminal Judicial Justice, above note 606, at 111. 622 Juliane Kokott, The Burden of Proof, above note 608, at 9. 623 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 152–153. Steve Uglow, CRIMINAL JUSTICE, above note 606, at 177–178.

the adopted system for international criminal trials

145

submission of evidence before the ICC follows the adversarial system, where the Prosecutor and the defence have the right to question witnesses, however, no strict rules of examination and cross-examination were provided by the Rome Statute or by the Rules of Procedure and Evidence. As opposed to the common law system, the inquisitorial, or continental, or civil legal system can be characterized by a more active role on the part of the court. The term “inquisitorial” has its roots in the discipline of inquisition and torture, derived from the initiations of Pope Gregory IX,624 and Pope Innocent III, in the thirteenth century.625 It sometimes refers to the “Star Chambers” of King Henry VII in 14th Century England, enacted by the Pro Camera Stellata Act of 1487,626 or to the Spanish inquisitors of the late fifteenth century.627 However, this sense of “inquisition” has been abandoned since the French Revolution,628 and the German reforms of 1848.629 The meaning of the term nowadays, is basically a division of authority between a pre trial phase, conducted by an investigative justice ( juge d’instruction), as opposed to a trial phase, conducted by a trial justice.630 The term “civil” as derived from the Civil Code, made by Roman Emperor Justinian631 and much later from Napoleon’s Code Civil. This meant a codification, binding all citizens, which is meant to correct the obscurity of law, where there has been no tradition, as is until today, of a binding precedent, but rather a discretionary role of interpretation of the law by the magistrate.632 In the continental system, the inquiry into a case is performed by an investigating magistrate633 whose responsibility is to collect and preserve the results of incriminating and exonerating circumstances. In principle, the same responsibility rests on the Prosecutor of the ICC (which differs with the ad hoc Tribunal’s Statutes where it is nowhere stated that the Prosecutor 624

David Lusty, Anonymous Accusers, above note 604, 366. Kai Ambos, International Criminal Procedure, above note 602, at 3. 626 David Lusty, Anonymous Accusers, above note 604, at 370–374. 627 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 149. 628 Kai Ambos, International Criminal Procedure, above note 602, at 3. 629 Barton L. Ingraham, The STRUCTURE OF CRIMINAL PROCEDURE, above note 607, at 31. 630 Kai Ambos, International Criminal Procedure, above note 602, at 3. 631 Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 99–102 Barton L. Ingraham, The STRUCTURE OF CRIMINAL PROCEDURE, above note 607, at p. 6. 632 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 99, 100, 102; Barton L. Ingraham, The STRUCTURE OF CRIMINAL PROCEDURE, above note 607, at 7. 633 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 150. 625

146

intermediary part

is to gather exonerating proof ). However, from the provisions on evidence in the Rome Statute, it follows that the prosecution and the defence are to present evidence. Article 54 of the Rome Statute reflects the civil-law system of investigation resulting in a dossier containing both inculpatory and exculpatory evidence. Disclosure obligations are irrelevant in the continental system since the defence has access to the whole investigation dossier for the preparation of the defence. Since the inquiry is carried out by the investigating magistrate, the system does not necessarily call for a barrier of evidence. As an investigator, the magistrate, who decides both questions of fact and questions of guilt, may take any evidence he deems necessary.634 This naturally results in a reduction of the rivalry with the defence. In this system of evidence producing, the weight, rather than the admissibility of evidence has the upper hand, and the need to cross examine in order to reconstruct the investigation one step at a time is significantly reduced.635 In the continental legal system, an appeal, served within the time limitation of the period of appeal, is still considered a part of the trial proceeding itself.636 The appeal is not considered a trial de novo of the defendant, even if the trial extends itself to a new investigation of the facts from beginning to end. In the continental law system, the criminal trial ends only after the appeal was heard and the verdict rendered by the court of appeals or when the time limit to appeal has expired. In the civil law system, legal precedents are not binding;637 magistrates and judges are committed solely to the law. They are free to collect and assess evidence, and an appeal does not typically have to focus merely on legal issues, like the adversarial appeal. In the inquisitorial legal system, both the investigator and the person who decides the facts as well as questions of law, is essentially the same professional at law. The defendant cannot establish his defence on the rebuttal of inadmissible evidence which is not disclosed to the court. In an inquisitorial system, all is open, and the pace of the trial is solely determined by the pace of the investigating magistrate, followed by an indictment by the Prosecutor and a constant battle

634

Compare to ibid., at 152. Juliane Kokott, The Burden of Proof, above note 608, at 10. Though not being under an obligation to do so, the defendant is expected to cooperate with the prosecution. For examples of the consequences of cooperation or non-cooperation with the Prosecutor on the sentence in the context of the ad hoc Tribunals, see above at 109. 636 Kai Ambos, International Criminal Procedure, above note 602, at 33. Gabriel Halevi, Criminal Judicial Justice, above note 606, at 127. 637 Kai Ambos, International Criminal Procedure, above note 602, at 34. 635

the adopted system for international criminal trials

147

of admissibility.638 All of which occurs while the defendant is under arrest without conviction all through the trial, when he is brought against serious charges.639

2. The Adopted System: A Combination Leading to a Sui Generis System The recent history of international tribunals, starting with the Nuremberg and Tokyo Tribunals, going through the U.N. ad hoc Tribunals for Yugoslavia, Rwanda until the establishment of the ICC, has witnessed an ongoing compromise between the legal systems and their criminal procedures.640 The international tribunals are somewhat bewildered between reliance on the investigations of third parties on the one hand, and diminishing the barrier of evidence on the other hand,641 due to the nature of the materials and offenses which are brought before the tribunals. Such indecision between either legal system requires that the judges balance the weight of all evidence brought before them, in light of the inability to perform an acquitting investigation for the defence: either by themselves or by the defence in many cases.642 In light of the need to weigh evidence by the international tribunals, rather than rule them as admissible or inadmissible only, they are neither “passive” nor “active”. They are sui generis types of courts, which have to balance between the rights of the defendants to a fair trial, and the need to deter and punish the crimes within their jurisdiction, while preserving the rights of victims, witnesses, states and international organizations at the same time.643 The participation of victims in the ICC proceeding is an innovation when compared to any previously established international tribunal. Though the victim has not become a (private) party in criminal proceedings, as is the 638 Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS, above note 603, at 151. 639 Article 58 of the Rome Statute, revolves around a “Reasonable Time” with no exact limitation of the possible period of arrest. 640 Helen Brady, Evidence in the ICC Statute, above note 600, at 281–285, Daryl A. Mundis, Current New Mechanisms for the Enforcement of International Humanitarian Law, above note 600, at 934–952. 641 Compare to Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, at 171–172. 642 David Lusty, Anonymous Accusers, above note 604, at 413. 643 An investigation and an indictment must always be “in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial” (Article 68(5).

148

intermediary part

case in some civil law countries, under the Rome Statute victims are entitled to protection and to participate indirectly in the ICC proceedings. Consequently, an international model for the participation of victims was created which differs substantively from the common-law criminal systems. Since the Nuremberg Tribunals, international criminal trials, including the ICC, have a prosecution, a defence, and professional justices. It is the duty of the justices to balance the weight of the evidence against the ability of the defence to bring forth evidence, in light of the right of the defendant to a fair and expeditious trial.644 A fair trial might very well include taking into consideration situations in which the defendant is unable to bring evidence to support his arguments. Such, for example, is the case of a change in regimes in a country which holds information that is vital for the defence, during which time evidence for the defence might be swiftly destroyed.645 On the other hand, it may be argued that the cases brought before international tribunals, have been of the most heinous crimes, such as genocide, and crimes against humanity. The perpetrators of such crimes would certainly not hesitate to bury evidence along with their victims, and to conceal or destroy evidence.646 It is also difficult to fully implement rules of admissibility in such circumstances, because the only remnant of a mass killing, for example, might be a video tape of an execution that survived the event, its camera man being long gone. Thus, we are left with a constant need for a balance between a fair procedure and a difficult subject matter, where neither of the legal systems reigns in international criminal adjudication. On the one hand, rules of admissibility, as much as they are preferred, are difficult to implement. On the other hand, a total relinquishing of the barrier of evidence, without a proper substitute whereby the court makes the investigations itself, is difficult to accept in terms of defendant rights. However, as international criminal adjudication evolves, the criminal procedure develops in terms of defendant rights. The question is whether the criminal procedure adopted for the ICC can ensure a fair trial. The Rome Statute and the Rules of Procedure and Evidence are the Magna Carta of the accused. It is more than just a 644 See D.M. Amman, Harmonic Coverage? Constitutional Criminal Procedure in an International Context, 75 Ind. L.J., (2000), at 841–846, 871. 645 Allison Marston Danner writes: “Despite the increasing autonomy granted to the Prosecutor over the course of the negotiating history of the Rome Statute, the Court remains heavily dependent on state cooperation in order to investigate its cases, arrest its suspects, and imprison the individuals it convicts” Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion, 97 AJIL ( July 2003), at 527. 646 Patricia M. Wald, The ICTY Comes of Age, above note 601, at 108.

the adopted system for international criminal trials

149

set of rules, especially in a legal system where sovereign countries gather evidence against defendants, and have to cooperate with defendants in assistance to the inquiries for the defence. The basic assumption is, of course, that the prosecution has enough cooperation in order to indict the person. Thus, the question now becomes whether or not the defendant is able to find acquitting evidence on his behalf. Furthermore, it is possible that the defence counsel will implement the legal approach of their country of origin.647 As P. Wald mentions, some defence attorneys in the ICTY did not know the meaning of cross-examination. It did not stop the Prosecutor from bringing evidence before the Tribunal, naturally.648 There are many implications to choosing one legal system over the other. The end result is, naturally, that a selective adoption of legal procedures calls for a debate over each legal procedure, and the way it is balanced in light of the rights of the accused, the rights of victims and witnesses, and the procedural system as a whole. In particular, the most influential legal debate is over the level of activeness or passiveness that each of the parties may demonstrate, or is required to demonstrate: the victims, the witnesses, other investigative authorities, the Prosecutor, the defence, the Court itself. Another critical issue is how far the conflict goes between the prosecution and the defence in the ICC, as well as other parties, such as the victims. The Court may admit any evidence it deems credible and relevant. There is no explicit prohibition against hearsay evidence.649 The question is whether the ICC will follow the ICTY precedents on anonymous testimonies (until a conscious decision has ceased it).650 In cases brought before the ICC, as before the ad hoc Tribunals, the inquiry and the collection of evidence are not made by the Court. Therefore, the question of ensuring the fairness and the evidential course of the inquiry, typical to common law, re-emerges. Hence the difficulty to rely solely on the Court in weighing evidence, without prior blockades in accepting it.

647

Patricia Wald observed that: “Judges from different systems will tend to apply ‘what comes naturally.’ For instance, civil law judges may question witnesses much more freely than in our system”; Ibid., at 90. 648 Ibid., at 104. 649 See Helen Brady, Evidence in the ICC Statute, above note 600, at 294; See Articles 56, 57, 69, 72, 73, 93 of the Rome Statute, as well as Rules 81(4), 140(3) of the Rules of Procedure and Evidence of the ICC, and compare to Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, at 169–170 and to Patricia M. Wald, The ICTY Comes of Age, above note 601, at 104. Unless explicitly mentioned otherwise, the term “Rule” or “Rules” hereinafter, refers to the Rules of Procedure and Evidence of the International Criminal Court. 650 David Lusty, Anonymous Accusers, above note 604, at 417–421.

150

intermediary part

The dependence on the investigative body creates a re-enforced need for cross-examination. As will be seen below, the right to cross-examine might not always be fully provided in the ICC. According to P.M. Wald, an American justice who served in the ICTY, some attorneys do not even know the meaning of a cross-examination procedure.651 In order for the defendant not to be unfairly tried, the ICTY often had step in and complete a cross-examination. The existing ad hoc Tribunals and the ICC are not meant to be investigative bodies—that is the duty of Prosecutor. The ICC also has a Pre-Trial Chamber, but it too is not meant to investigate the case from start to finish.652 All in all, one cannot underestimate that a Court is to relinquish the barrier of evidence neither in the ICC procedures, nor in any other of the international tribunals.653 The right of the defendant to cross examine is vital: if all is admissible, even without the defendant being able to cross examine the witnesses and gatherers of the information against him, he is stripped of a essential part of his defence, which can in turn lead to unverified evidence being accepted. The path selected by the ICC between an adverse or an inquisitorial system is unclear in terms of the rivalry between the parties: on the one hand, there are agents of the Court which are assigned for the Prosecution, whose role is to bring forth evidence both incriminating and exonerating. On the other hand, the defence loses its momentum of surprise, as it has to reveal all evidence before presenting it to the Court (which the prosecution, in turn, also has to do, prior to the process of confirmation of charges under Article 61).654 Thus, the defence has to disclose its line of defence a priori, without the ability to counter the arguments raised by the prosecution. Furthermore, it creates an imbalance in favor of the prosecution: it can prepare itself to counter the version raised by the defence. Further, there is even a fear of version coordination between witnesses for the prosecution. This may occur involuntarily as victims are allowed to see materials for the prosecution and to engage in the process.655 They are allowed to regroup and to prepare for trial by pre-empting the contradictions in their testimonies in light of the expected line of defence. Consequently, the answers of wit651

Patricia M. Wald, The ICTY Comes of Age, above note 601, at 104. Ibid. 653 Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, at 168. 654 Articles 54 and 61 of the Rome Statute. It should be noted that the Prosecutor has an obligation to establish substantial grounds to believe that the person has committed the crimes referred to in the charges. At the confirmation hearing, the defence may decide not to present any evidence. Article 61, paragraph 6, uses the term “may” leaving the defence the choice whether or not to present evidence and keep his or her defence for the trial. 655 Article 68, Rule 131. 652

the adopted system for international criminal trials

151

nesses might not be spontaneous, which undermines the ability of the justices to be impressed by contradictions in testimonies in real time. Furthermore, the Rome Statute allows for some evidence not to be handed in on time to the defence.656 The defence attorney might only receive privileged information prior to the confirmation of charges, hardly enough time to make an acquitting investigation for the defence, or even to prepare a worthy rebuttal on time for the claims of the prosecution. It is therefore questionable whether the defence should lose its ability to withhold its line of defence up until the cross-examination, whereas much of the trial is to be decided by a cross-examination, since the judges do not perform the inquiry themselves.657 The inquisitorial legal system is thought to be faster, and the pace of deliberations depends solely on the investigating magistrate. In the context of the ICC, as a direct continuation of the ad hoc Tribunals, a person is to be remanded in custody, even without being charged, for a “reasonable time.”658 The inquiry depends on the prosecution, working together with countries who do not necessarily see swift justice for the defendant as their primary objective. Even if such states have no political vendetta against the defendant, national security and the safety of witnesses and other ongoing investigations might negatively influence the pace of the investigations. The end result might therefore be that the period of arrest of a person under custody of the Court may be prolonged, without his guilt being established at all, due to the fact that he is unable to present his defence at this stage. The possibility of amicus curiae 659 in ICC proceedings, is an additional inquisitorial element of procedure. The Court may take any expert witness it deems expert,660 regardless of the view of the parties as to his professionalism. This can lead to further imbalance: the defence might not necessarily have the ability to bring forth the most eloquent expert witness, should the expert chosen by the Court take a firm stance against the defendant. The testimony as to personal convictions of one expert or the other, may decide the entire case. If the defence is unable to agree upon an acceptable expert witness, or bring forth one of the same magnitude, it is left in a position of disadvantage. All in an inquisitorial like procedure, which is adversarial at the same time, without the defence being given the full means to counter the allegations. 656

Articles 72, 93, 99. David Lusty, Anonymous Accusers, above note 604, at 376. 658 See Article 61—A Reasonable Time during which the defendant will be remanded in custody in light of his level of dangerousness. 659 Rule 103. 660 See Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, at 163. 657

152

intermediary part

Another feature of the adopted legal system in the ICC is that an appeal may mean a trial de novo661 as the Appeals Chamber is not bound to legal questions only. All in all, the inner balance of the adopted legal system for international criminal trial has not been totally achieved in relation to the defendant put in an international arena against the prosecution. He/she is limited by witnesses and victim rights and depends on international cooperation which he/she might not be able to obtain because of the stigma that is laid upon persons accused of such heinous crimes and states not necessarily interested to cooperate. In case of a non-member state, the Court may only invite such state to cooperate. In some instances, this imbalance may be overcome if the Court takes appropriate measures to ensure the rights of the defendant, in light of his right to a fair and expeditious trial.662

661 Articles 55, 56, 57, 67, 76, 84, 85, as well as a relating article: L. Mekhemar, The Status of the Individual in the Statute of the International Criminal Court, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT—A CHALLENGE TO IMPUNITY, M. Politi and G. Eds., Ashgate-Darmough Pub., (2001), at 123–130. 662 Under Article 64(2) of the Rome Statute “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”.

PART II

THE TRIAL AT THE INTERNATIONAL CRIMINAL COURT

The proceedings in any criminal case begin well before the trial; the stages of investigation and prosecution prior to trial are vital, and may have direct consequences on the trial and no less on its outcome. Decisions regarding whom to investigate, who to interrogate, how to investigate and interrogate, when to prosecute, when to abandon the investigation, and a myriad of other seemingly simple decisions, are in fact enormously complex. Moreover, the demarcating lines between pre-investigation, investigation, prosecution, and trial are often blurry, and the articles in the Rome Statute on the pre-trial are themselves often deliberately vague. The Rules of Procedure and Evidence do clarify some of these issues, but still, and perhaps due to the very broad nature of the procedure, these lines are not always clear-cut.

CHAPTER I

INVESTIGATION AND PROSECUTION

The investigation and the subsequent prosecution, have direct bearings on the future trial. The trial might be fair but failure to protect the defendant’s interests during the preliminary phase, may ultimately result in an unfair trial. For the ICC to be considered a fair and impartial forum for administering justice, it is vital that the rights of the investigated person and accused person are adequately safeguarded. Difficulties faced in the Nuremberg trials, as well as at the ICTY and the ICTR,663 highlighted the importance of guaranteeing the rights of the accused.664 An inappropriate or illegal act during the investigation, or during the arrest in the custodial state, could cast shadows on the whole trial. The Court must, of course, balance the rights of the investigated and accused persons with the rights of the victims and witnesses. Yet without such rights for the investigated person and for the accused—rights developed through the years in both international and domestic courts of law—the ICC will be unable to garner the trust of the member or potential member states. It will become a tool in the hands of those who hope to use the Court for their own purposes. To stave off this possibility, the Rome Statute includes two separate provisions to protect the rights of persons during the entire process. The first, Article 55, delineates the rights of an investigated person; the second, Article 67, outlines the rights of the accused during the trial itself. Together, they provide a framework for ensuring a fair trail for the defendants. Though these rights have often been ignored in the literature,665 the proper 663 For an overview of the rights of the accused at the ICTY, see Scott Johnson, On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 Int’l Legal Persp. (Spring 1998), 111. See also Vincent M. Creta, The Search for Justice in the Former Yugoslavia and Beyond: Analyzing the Rights of the Accused Under the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 20 Hous. J. Int’l L (1998), at 381. 664 See Sara Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, 31 New York University School of Law Journal of International Law and Politics (1999), 535 particularly the Introduction. See also Robert Christensen, Getting to Peace by Reconciling Notions of Justice: The Importance of Considering Discrepancies Between Civil and Common Legal Systems in the Formation Of the International Criminal Court, 6 UCLA J. Int’l L. & For. Aff. (Fall 2001/Winter 2002), at 391, particularly the conclusion. See also Bryan MacPherson, Building an International Criminal Court for the 21st Century, 13 Conn. J. Int’l L. 1, (Winter 1998), at 17–18. 665 For some of the reasons for this, see Jacob Katz Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects 27 Yale J. Int’l L. (2002), at 111.

156

chapter 1

implementation of these rights will constitute the most significant test for the International Criminal Court.666 The drafters of the Rome Statute and of the subsequently drafted Rules of Procedure and Evidence, spent much time debating pre-trial issues. Differences between legal systems of the drafters, differences in legislative processes between the country signatories to the Statute, eventually merged into a single procedure. The following chapter will analyze the details of this procedure and its drafting history, with an eye to how these procedural details are meant to construct what the drafters considered the “fairest” trial possible.667

1. The Initiation of an Investigation Under Article 53 of the Statute, the Prosecutor must “evaluate the information made available to him or her,”668 and on the basis of this evaluation, decide whether or not to initiate an investigation. Under the Rome Statute, the Prosecutor is to consider three issues, and decide whether there “is a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed,” whether “the case is inadmissible under Article 17,” or whether “an investigation would not serve the interest of justice” taking into account the gravity of the crime and the interests of victims.669 The Rules of Procedure and Evidence add that the Prosecutor 666 For a general overview of the rights of the accused in international tribunals, see Cristian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 Va. L. Rev. (2001), 1381. See also Developments in the Law—International Criminal Law, III. Fair Trials and the Role of International Criminal Defence, 114 Harv. L. Rev. (2001), 1982. For a more general perspective see Caflisch Lucius, The Rome Statute and The European Convention on Human Rights, HRLJ Vol. 23 (2002), at 1. 667 For the possible dangers resulting from protracted pre-trial procedures, see David Stoelting, ICC Pre-Trial Proceedings: Avoiding Gridlock, 9 ILSA Journal of International & Comparative Law (Spring 2003) 413–423. 668 Article 53(1) of the Rome Statute. Depending on the situation, the information might have been made available to the Prosecutor prior or upon referral of a situation by a state or by the Security Council or gathered by the Prosecutor. For the first referral of a state, see President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC, (ICC Press Release, 29 January 2004). On Uganda, see Situation in Uganda, ICC-02/04 Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, 5 July 2004. For the second referral of a state, see Prosecutor receives referral of the situation in the Democratic Republic of Congo, (ICC Press Release, 19 April 2004). See also Situation in the Democratic Republic of Congo, ICC-01-04, Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004. The first referral of the Security Council to the Court, refers to the situation in Darfur; (ICC Press Release, 1 April 2005), Situation in Darfour, Sudan, Decision Assigning the Situation in Darfour, Sudan to Pre-Trial Chamber, 21 April 2005. 669 Ibid., Article 53 (1). For slight differences in considerations of these issues based on which trigger mechanism initiated the preliminary examination, see Giuliano Turone, Powers and Duties of the Prosecutor, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and

investigation and prosecution

157

is to “analyse the seriousness of the information received.”670 At this stage, the Prosecutor may request additional information from any relevant and reliable body, and may take both written and oral testimony at the seat of the Court.671 Unless there is no reasonable basis to proceed, the Prosecutor will proceed to an investigation.672 As mentioned above, there are three ways to refer to a situation to the ICC and that the authorization of the PreTrial Chamber is only needed when the Prosecutor initiates an investigation proprio motu. In case of referral by a State or by the Security Council, there is no requirement of a preliminary authorization by the Pre-Trial Chamber for the Prosecutor to start an investigation. If the Pre-Trial Chamber confirms the Prosecutor’s proprio motu decision to investigate after a request to that end was submitted to the Pre-Trial Chamber (or if the Chamber does not react to the decision, which is tantamount to confirmation),673 then the investigation, which is the next stage of proceedings, begins. In order to ensure fairness of the proceedings as of this early stage, the Statute and the Rules of Procedure and Evidence set out a number of conditions pertaining to the collection of evidence and treatment of suspects and witnesses. As such, the Prosecutor is charged to investigate all relevant facts and evidence, both incriminating and exonerating—“in order to establish the truth.”674 The Prosecutor must respect the rights of all persons John R.W.D. Jones eds., Oxford University Press (2002), (hereinafter “THE ROME STATUTE OF THE ICC”), at 1143–1146. It must be noted, however, that a preliminary examination must be carried out in every case. Rule 48 clarifies that the parameters of Article 53(1), which may have seemed to be only relevant to referrals by the Security Council or a State Party, are also valid for investigations proprio motu. 670 Rule 104 (1). 671 Rule 104 (2). According to Hakan Friman, this Rule did not raise particular difficulties at the drafting stage. However its complementary rule, Rule 48, which attempts to harmonize between Article 15(3) (“If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation . . .”) and Article 53(1), was more difficult to draft, as 15(3) is vague as to when the investigation actually begins, Hakan Friman Investigation and Prosecution in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIME AND RULES OF PROCEDURE AND EVIDENCE, Ed. Roy S. Lee (2001) (hereinafter “THE ICC, ELEMENTS OF CRIME AND RPE”), at 496. 672 Morten Bergsmo and Pieter Kruger (Initiation of an Investigation, in COMMENTARY ON THE ROME STATUTE, above note 7, at 704) thus interpret the word “shall” in paragraph 1 of the Article. For the drafting history of the phrase “reasonable basis,” and its exact meaning, see ibid., at 706–707. For a clause-by-clause analysis of this Article, see ibid., at 704–714. 673 Rule 110(2). 674 Article 54(1) of the Rome Statute. For a comparative study on pre-trial proceedings in different legal systems and in previous international law, especially on adversarial systems and inquisitorial systems, see Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, Oxford University Press (2001), at 54–171. See also Mark Findlay, Synthesis In Trial Procedures?—The Experience of International Criminal Tribunals, 50.1 International and Comparative Law Quarterly ( January 2001) 26. See also, Gregory McClelland, A Non-Adversary Approach to International Criminal Tribunals, 26 Suffolk Transnational Law Review (Winter 2002), at 13–15.

158

chapter 1

involved, and respect the personal circumstances of victims and witnesses, including age, gender, and health, and the specific circumstances of the crime.675 In terms of the Prosecutor’s activities, he or she may collect and examine evidence, question victims and witnesses, and enter into agreements to facilitate the cooperation of states or intergovernmental agencies.676 The Prosecutor is allowed to agree not to disclose information he or she receives for the purpose of generative new evidence. Lastly, the Prosecutor may take necessary measures to ensure confidentiality of information and protection of persons and evidence.677 The Pre-Trial Chamber has an important role during the investigation and throughout the pre-trial proceedings where it is the only competent authority for the issuing of orders for the protection of victims, witnesses, and investigated persons, for the preservation of evidence and protection of national security information,678 and, among others, order medical, psychological or psychiatric examination.679 Moreover, the Pre-Trial Chamber may authorize the Prosecutor to take specific investigative steps in a state party without its cooperation, if the Chamber determines that the state is unable to execute the request for cooperation due to the unavailability of any competent authority.680 Though the Prosecutor certainly has a broad hand in these early proceedings to determine what are “appropriate” measures to ensure a fair trial, there still exists some judicial input.681 The Pre-Trial Chamber hears 675

Article 54(1) of the Rome Statute. Ibid., Article 54(3). For a clause-by-clause analysis, see Morten Bergsmo and Pieter Kruger, Article 54: Duties and Powers of the Prosecutor, in COMMENTARY ON THE ROME STATUTE, above note 7, at 716–725. 677 Article 54(3) of the Rome Statute. 678 Ibid., Article 57(3)(c). 679 Rule 113. For the debates on the question of medical examinations, see Hakan Friman, Investigation and Prosecution, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds. (2002), (hereinafter “THE ROME STATUTE OF THE ICC”), at 504–506. See Prosecutor v. Mrdja (ICTY Case No. Case: IT-02-59-S Decision on the Defence Motion for Medical Examination and Variation of Scheduling Order, 15 September 2003), rejecting the Prosecutor’s request that “1. all correspondence between a party and the medical expert will be disclosed to the opposing party, including oral discussions; 2. the Prosecution shall have the opportunity to meet with the medical expert prior to and following any medical examinations of the Defendant; 3. any reports or commentary of the medical expert be disclosed to the Prosecution and the Defence at the same time”. 680 Article 57(3)(d) of the Rome Statute. Olivier Fourmy (Powers of the Pre-Trial Chamber, in THE ROME STATUTE OF THE ICC, above note 669, at 1216), points out that in both ad hoc Tribunals, the Prosecution often had to conduct investigations and rely on experts that the States would not have been able to provide. 681 In his discussion on the compromises made to create the procedural law of the PreTrial stage, Claus Kress writes that “the interplay between the Prosecutor and the Pre-Trial Chamber at the early stages of the proceedings constitutes one of the most striking examples of the uniqueness of the ICC procedural law”; 676

investigation and prosecution

159

requests relating to a “unique investigative opportunity,” when the Prosecutor informs the Chamber that there is an opportunity to take testimony or evidence which may not be subsequently available.682 In such a case, the PreTrial Chamber is responsible for ensuring the efficiency and integrity of the proceedings, especially the rights of the defence. Examples of measures to be taken include taking a record of the proceedings, appointing an assisting expert, authorizing counsel for the person summoned, having another judge to observe and make recommendations, etc.683 In the interest of time, rulings of the Pre-Trial Chamber during the investigation, may be issued by a single judge (except for rulings issued on Articles 15, 18 on admissibility, 19 on jurisdiction, 54(2) in investigations on state property, 61(7) on confirmation of charges, and 72 on national security information.)684 Decision not to Investigate or decision not to Prosecute—The Prosecutor may decide not to initiate an investigation due to lack of reasonable basis to proceed.685 In instances were the Prosecutor had proceeded to an investigation, he may reach the conclusion that there is not “sufficient legal or factual basis” to seek a warrant or summons or the case is inadmissible under Article 17, or the prosecution is not in the interests of justice.686 He must inform the Pre-Trial Chamber of his decision, as well as either the state that referred the situation or the Security Council, stating the reasons for his decision not to initiate an investigation or not to prosecute.687 The PreTrial Chamber may review this decision either at the request of the referring state or Security Council, or proprio-motu if the Prosecutor’s decision was based on solely on matters relating to the interests of justice.688 A motivated request for review must be made within 90 days after the notification SYMPOSIUM—The Procedural Law of The International Criminal Court In Outline: Anatomy of a Unique Compromise, 1.3 Journal of International Criminal Justice (December 2003), at 603. 682 Article 56(1) of the Rome Statute. The first request for measures under Article 56 was filed by the Prosecutor of the ICC informing Pre-Trial Chamber I “of the existence of a unique investigative opportunity to carry out forensic examinations and request the adoption of specific measures to ensure the efficiency and integrity of the proceedings and to protect the rights of the defence” Situation in the Democratic Republic of Congo, ICC-01/04, Decision on the Prosecutor’s Request for Measures under Article 56, 26 April 2005, at 2. 683 Article 56(2) of the Rome Statute. For drafting issues, see Hakan Friman, Investigation and Prosecution, in THE ROME STATUTE OF THE ICC, above note 679, at 506–507. For examples of “unique investigative opportunities,” see Olivier Fourmy, Powers of the PreTrial Chamber, in ibid., at 1218. 684 Article 57(1) of the Rome Statute. 685 Ibid., Article 53(1). 686 Ibid., Article 53(2). 687 Ibid., Article 53(2) (c). 688 Ibid., Article 53(3)(b). For questions of whether the Pre-Trial Chamber can also review, and if the victims may challenge a decision of the Prosecuror not to investigate under Article 15 of the Rome Statute, see Hakan Friman, Investigation and Prosecution, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 497–499.

160

chapter 1

of decision not to initiate proceedings or not to prosecute.689 In a review, the Pre-Trial Chamber may request the Prosecutor to reconsider his decision, if concurred in by a majority of the judges.690 Should the decision of the Prosecutor not to initiate an investigation or not to prosecute be based on reasons pertaining to interests of justice, the Prosecutor’s decision “shall be effective only if confirmed by the Trial Chamber”. Where interests of justice are involved, the Pre-Trial Chamber seems to have the upper hand, whereas if the Prosecutor decided not to proceed for lack of reasonable or sufficient basis or for considerations of inadmissibility. The Pre-Trial Chamber can request the Prosecutor to reconsider his decision, but it cannot force its decision upon the Prosecutor.691 The Prosecutor has the power to investigate if he believes there to be a “a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed.”692 In case of proprio motu action by the Prosecutor, the investigation may start upon confirmation of the PreTrial Chamber, the investigation may start. The Prosecutor has the power to conduct investigations on the territory of a state party, collecting evidence, questioning individuals, cooperating with the state, etc.693—in view of the extent of his powers, it is especially important that he and all those involved in the investigation respect the rights of the individuals questioned. The right of the investigated person to be informed—At this point, before a person has been accused, but after he/she has been singled out for questioning, whether as a suspect or for any other reason, that person runs the risk of being in a no-man’s land, vulnerable to infringements of his/her rights. Article 55 of the Statute, provides specific rights for the protection of the person under investigation. However, abstract rights are immaterial if the person under investigation is unaware of them, and therefore does not utilize them. As a result, the Statute requires that any person for whom it was found that there are grounds to believe that he/she committed a crime under the jurisdiction of the Court, must be informed of his rights. The person must be informed, before questioning, that the Court has grounds to believe that he/she committed a crime; that he/she has the right to remain silent, without it having any bearing on the determination of guilt;694 that he/she has the right to choose legal assistance or 689

Rule 107(1). Rule 108(1). 691 Morten Bergsmo, Pieter Kruger Article 53: Initiation of an Investigation, in COMMENTARY ON THE ROME STATUTE, above note 7, at 712. 692 Article 53(1) of the Rome Statute. 693 Ibid., Article 54(2). 694 For an interesting article tracing the history of the right to be informed of the right 690

investigation and prosecution

161

to have one assigned to him/her, for free if necessary; and that the investigated person has the right to be questioned in the presence of counsel.695 Whether the Prosecutor will perform the questioning or the national authorities, the investigated person has the right to be informed.

2. Warrants, Summons and Arrest At any point after the initiation of the investigation, the Pre-Trial Chamber may issue a warrant of arrest for an alleged criminal.696 Two stages are involved in issuing such a warrant: the Prosecutor must first apply for it, thereafter the Pre-Trial Chamber examines the application and evidence and renders its decision. The Prosecutor’s application must contain the persons name and identifying information; specific reference to the alleged crime; a concise statement of the facts allegedly constituting the crime; summary of evidence to establish “reasonable grounds” to believe that the person committed the crime. It must also contain reasons why the arrest of the person is necessary.697 A request for arrest will be honored if the Pre-Trial Chamber is satisfied that there are “reasonable grounds” to believe that the person has committed a crime, and if the arrest of the person “appears necessary” for one of three reasons: to ensure his or her appearance at trial (since trials in absentia are not allowed at the ICC), to ensure that he or she does not obstruct or endanger the investigation or proceedings, or to prevent the continuing commission of the crime.698 If the Chamber rules in the affirmative, a warrant is issued with the name of the person and any other relevant identifying information, a specific reference to the crimes allegedly committed, and a concise statement of the facts involved.699 The warrant remains in effect unless otherwise ordered by the Court. On the basis of the warrant, the Court may request the arrest and surrender of the person.700 During the pre-trial phase, the Prosecutor may request an to remain silent, its usage in various countries, and its shortcomings in reality, see Stephen C. Thaman, Miranda in Comparative Law, 45 St. Louis L.J. (2001), 581. 695 Article 55(2), Rome Statute. For a short overview of the rights of the suspect before the trial begins in the context of a real-life case at the ICTR, see Russell-Brown, Sherrie L., Poisoned Chalice? The Rights of Criminal Defendants Under International Law, During the Pre-Trial Phase, 8 UCLA Journal of International Law and Foreign Affairs (2003), at 127. 696 Angelika Schlunck, (Issuance by the Pre-Trial Chamber of a warrant of arrest, in COMMENTARY ON THE ROME STATUTE above note 7, at 756), points out that a warrant or summons can only be issued for an alleged criminal, and not for a witness or expert. 697 Article 58(2) of Rome Statute. The Rules do not elaborate on the form of the application. 698 Ibid., Article 58(1) of Rome Statute. 699 Ibid., Article 58(3). 700 Ibid., Article 58(5).

162

chapter 1

amendment to the warrant “by modifying or adding crimes specified” in the warrant. The Pre-Trial Chamber may accede to the request if there are “reasonable grounds” to believe that the person committed these crimes.701 The Prosecutor may also apply for a summons instead of an arrest. If the Pre-Trial Chamber is satisfied that there are “reasonable grounds” that the person committed the crime and a summons is sufficient to ensure the person’s appearance, it will issue a summons that may or may not include conditions restricting liberty, except for detention, “if provided for by national law” for the person to appear. The summons contain the same information as a warrant, with the addition of the specific date on which the person is to appear in Court, and are to be served on the person.702

3. Arrest in the Custodial State and the Right to Apply for Interim Release When a state party receives the request for an arrest, it must immediately take steps to arrest the person, “in accordance with its laws and the provisions of Part 9.”703 The custodial state has to ensure that the warrant applies to that person, that the person’s rights were respected, and that the arrest was in accordance with proper process.704 The Court is to ensure that it is informed of the arrest.705 At any point after the arrest, the person may request an appointment of counsel to assist with proceedings, and the PreTrial Chamber shall decide.706 There is no specific provision on the right of the arrested person to be informed of the reasons of the arrest nor is 701

Ibid., Article 58(6). Ibid., Article 58(7). 703 Ibid., Article 59(1). For a clause-by-clause analysis of this article, see Angelika Schlunck, Arrest Proceedings in the Custodian State, in COMMENTARY ON THE ROME STATUTE, above note 7, at 765–770. For a brief discussion of the arrest proceedings in traditional inter-State practice and in previous ad-hoc tribunals, see Bert Swart, Arrest Proceedings in the Custodial State, in THE ROME STATUTE OF THE ICC, above note 669, at 1247–1255, especially on the division of responsibilities between the Court and the competent national authorities. See below Chapter III for the state’s parties’ obligation to cooperate. 704 Article 59(2) of the Rome Statute. The Rome Statute, albeit to some extent only, improves the rights of the person at this stage of the proceedings. Cristian DeFrancia claims, that “the underlying logic of the Rome Statute appears to establish a greater sense of custodial responsibility for the actions taken at its behest, increasing the likelihood that the ICC will be an institution that ensures that its allies practice the humanitarian laws they seek to enforce.” Cristian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 Virginia Law Review Association (November 2001), at 1409; see also Geert-Jan Alexander Knoops, SURRENDERING TO INTERNATIONAL CRIMINAL COURTS: Contemporary Practices and Procedures, International and Contemporary Criminal Law Series, Transnational Publishers (2002), at 172–175. 705 Rule 117(1). 706 Rule 117(2). 702

investigation and prosecution

163

there an automatic right to assigned counsel at this stage. The arrested person has the right to apply to the competent authority in the custodial state for interim release,707 which does not consider whether the warrant was properly issued, but rather can only justify interim release in “urgent and exceptional circumstances” and alongside safeguards that will ensure the alleged criminal’s surrender.708 As long as the person is still in the custodial state, the person has the right to turn to that state, and the state can grant interim release.709 In the case of a request for interim release, the Pre-Trial Chamber must be notified, and may make recommendations that the custodial state should fully consider.710 If release is granted, the Pre-Trial Chamber may request reports.711 Once ordered to be surrendered, the person is to be transferred to the Court as soon as possible.712 Upon surrender to the Court, the Pre-Trial Chamber must be satisfied that the person has been informed of the crimes for which he will be charged, and of his rights, including the right to apply for interim release pending trial.713

4. The Rights of the Investigated Person The Rome Statute, and the accompanying Rules of Procedure, list a number of rights guaranteed to all who come into contact with the Court, in any capacity. Most of these rights are part of international human rights law, and particularly the ICCPR. There are, however, certain rights are not recognized by the Rome Statute, the right to privacy—the right not to be subject to search and seizure for instance.714 As the Statute does state that the application of the law must be “consistent with internationally recognized human rights,”715 it stands to reason that these rights would be nonetheless upheld in the International Criminal Court. Taken as a whole,

707

Article 59(3) of the Rome Statute. Ibid., Article 59(4). 709 The extent of the custodial state’s rights is somewhat under dispute; see Angelika Schlunck, Arrest Proceedings in the Custodial State in COMMENTARY ON THE ROME STATUTE, above note 7, at 768. 710 Article 59 (5) of the Rome Statute. 711 Ibid., Article 59(6). 712 Ibid., Article 59(7). 713 Ibid., Article 60(1). 714 For a detailed treatment of this right in international law and in the drafting of the Rome Statute, see George Edwards, International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy, 26 Yale Journal of International Law (Summer 2001), 323. 715 Article 21 of the Rome Statute. 708

164

chapter 1

however, the Rome Statute includes many more rights of the accused, and in greater detail, than previously established international tribunals.716 The right to counsel—Although the Statute does not explicitly provide for the right to counsel717 for persons under investigation—except for persons for whom there are grounds to believe that he committed a crime718—it may be assumed that such a right exists from the beginning of any proceedings,719 particularly since under Article 21(3), the Statute and the Rules must be applied in conformity with internationally recognized human rights. This right is important even at the early stage of investigation to ensure that the rights of the investigated person are respected. Therefore, Article 55 provides for the right of every person to have legal assistance of the person’s choosing, or to have such assistance assigned during questioning.720 The Prosecutor may conduct investigations on the territory of a state party, in accordance with the provisions on International Cooperation and Judicial Assistance (Part 9 of the Statute), or upon the authorization of the Pre-Trial Chamber, in cases where the situation in the state party clearly does not enable to execute a request for cooperation.721 One of the rights

716 For instance, see Article 21 of the ICTY Statute; Article 20 of the ICTR Statute; Article 14 of the ICCPR. 717 To be assigned, Counsel must have: “[E]stablished competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings” (Rule 22(1)). Further, fluency in one of the working languages of the Court is required. For ICC defence counsel see Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 109–112. The Registrar is to prepare a list of counsel that meet the necessary criteria (Rule 21(2)). Both the Statute and the Rules are silent as to the precise workings of assigning legal assistance to indigent prosecuted persons, especially when assigned by the Court. See for instance Antoine Buchet, Effectiveness and Independence in the Implementation of the Rights of the Defence Before the ICC, in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, above note 201, at 73. The assignment of counsel is a matter within the competence of the Registrar (Rule 21). 718 Article 55(2)(c) and (d) of the Rome Statute. 719 See for instance Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, Oxford University Press (2003), at 59. Under the Rome Statute, a general right to counsel begins only after the person is accused. See Kenneth Gallant, The Role and Powers of Defence Counsel in the Rome Statute of the International Criminal Court, 34 International Lawyer 21 (Spring 2000), at 27. For a comparative history on the right to counsel in national and international tribunals, see Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 104–109. 720 Article 55(2)(c) of the Rome Statute. There may be exceptional circumstances where pre-trial hearings may be conducted without counsel; see Kuniji Shibahara, Article 61, in COMMENTARY ON THE ROME STATUTE, above note 7, at 787. 721 The Pre-Trial Chamber must determine that the state party is clearly unable to execute a request for cooperation due to the “unavailability of any authority or any component of its judicial system competent to execute the request for cooperation”. Article 57(3)(d) of the Rome Statute.

investigation and prosecution

165

of a person during investigation pursuant to Article 55 of the Statute is to be questioned “in the presence of counsel,”722 unless the person has voluntarily waived his or her right to counsel. It follows that the right to counsel exist during investigation even if such right is not provided by the law of the state party where the investigation is conducted.723 The assistance of counsel during questioning may be waived by the investigated person, anything that that person may say can, nonetheless, be used against it. The person to be questioned may chose to be represented by counsel of his/her own choice, or by counsel assigned to him/her, “in any case where the interests of justice so require” and “without any payment if the person does not have sufficient means to pay for it”.724 Legal assistance would not be provided where the interests of justice does not so require, even though the person investigated may have an interest to be assisted. No definition of the term “interests” of justice is provided,725 nor who will decide when the interests of justice requires such an assistance; it is presumably the Registrar and upon review by the Presidency.726 At the hearing on confirmation of charges before the Pre-Trial Camber in the absence of the

722

Article 55(2)(d) of the Rome Statute. It is difficult to imagine how the person investigated—believed to have committed a crime within the jurisdiction of the Court—in a state where the judicial system is disrupted, can be assisted by counsel meeting the criteria provided by Rule 22. 724 Article 55(2)(c). Article 67(1)(d) relating to the right of an accused to have an assigned counsel does not mention the « interests of justice ». In the Akayesu case, the Appeals Chamber recalled the right of the indigent accused “to competent assigned counsel. The Appeals Chamber reiterates, in this connection, its findings in Kambanda that: the effectiveness of representation by assigned counsel must be assured in accordance with the principles relating to the right to a defence, in particular the principle of equality of arms. It recalls that the right to competent counsel is guaranteed under the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6) and the American Convention on Human Rights (Article 8) . . . With respect to the applicable tests for assessing counsel’s ineptitude, the ICTR Appeals Chamber endorses the tests applied by ICTY Appeals Chamber in the Tadic Decision. In this regard, ICTY Appeals Chamber held that an Appellant alleging incompetence of counsel must show the ‘gross incompetence’ of the latter. The Appellant may do so by demonstrating “that there was reasonable doubt as to whether a miscarriage of justice resulted” (footnotes omitted). Prosecutor v. Akayesu, ICTR-96-4, Judgement 1 June 2001, para. 76–77. 725 The interests of justice are also referred to in Article 14 (3) (d) of the ICCPR. That the accused is put in a position to defend himself adequately is an inseparable part of the interests of justice. 726 Rule 20 (1) of the Rules of Procedure and Evidence of the ICC reads: “The Registrar shall inter alia: (c) assist . . . persons to whom article 55, paragraph 2 (c) applies . . . in obtaining legal advice and assistance of legal counsel. Rule 21 states that a “person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances”. 723

166

chapter 1

person charged,727 the Chamber may appoint counsel where it determines that it is in the interests of justice to do so.728 The right of the accused to be assisted by counsel applies throughout the pre-trial proceedings.729 Presumption of innocence and the right to remain silent—The person under investigation is informed that he/she may remain silent without it influencing the determination of his/her guilt or innocence.730 The principle that “[e]veryone shall be presumed innocent until proven guilty before the Court”731 and the right to remain silent732 are explicitly provided by the Statute in the context of the trial proceedings.733 Although the Statute is silent as to the presumption of innocence during the pre-trial phase, it is generally agreed that right is accorded to any who come into contact with the Court system, at any stage.734 This right is again mentioned in the section on the rights of the accused, where he/she is guaranteed “not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.”735 The right not to incriminate oneself—The person under investigation has the right not to “be compelled to incriminate himself or herself or to confess guilt.”736 This is part and parcel of a more general right, the right of the suspect to remain silent (nemo tenetur se ipsum prodere), which leaves its mark on the ICC rules of procedure in various ways.737 It includes both the right not to incriminate oneself, and the right not to be pressured or coerced into incriminating oneself.738 The second part of this clause, on the confession 727

Article 61(1). Article 61(2). 729 See Article 56 (2) (d) and Article 56 (1) (b); the confirmation hearing may be held in the absence of the person charged were the person waived his or her right to be present, or fled or cannot be found. 730 Article 55(2)(b) of the Rome Statute. 731 Ibid., Article 66. 732 Ibid., Article 67(g). 733 Ibid., Article 66. 734 See for instance, Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 79. 735 Article 67(i) of the Rome Statute. 736 Ibid., Article 55(1)(a). 737 See, Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 115. See also Salvatore Zappalà, The Rights of the Accused, in THE ROME STATUTE OF THE ICC, above note 669, at 1343. 738 Hall does not distinguish between the two aspects of this right, but Zappalà does. The confusion stems, in part, from the fact that the next right, the protection against coercion, is probably also related to coercion to obtain incriminating evidence, and therefore, the two would seem to be redundant; see Christopher K. Hall, Article 55 in COMMENTARY ON THE ROME STATE, above note 7, at 729 versus Salvatore Zappalà, Rights of Person During an Investigation, in THE ROME STATUTE OF THE ICC, above note 679, at 1197. 728

investigation and prosecution

167

of guilt, implies that the guilty plea is meant, theoretically, to be “spontaneous”—precluding plea-bargaining.739 The Right against inhuman treatment—This right thus segues neatly into the second right, “not [to] be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment”.740 This clause is directed towards anyone acting on behalf of the Court, and is indeed relevant as it applies to state authorities who may be involved in the investigation as well.741 This prohibition goes beyond merely prohibiting torture, already banned by international conventions, and includes any degrading treatment, which may include “provoking feelings of fear, anguish, and inferiority . . .”.742 The right listed in Article 55 (2)(d), which requires the presence of counsel during questioning, is a means by which to ensure that no such inappropriate treatment takes place. Ultimately, however, the line between proper and improper behavior is often fuzzy; the specific interpretation of a given act is left to the appreciation of the Court. The Right to the recording of statements—Instructions for recording the questioning are provided by Rules 111 and 112 where the procedure is described in detailed.743 For all investigations, a record must be made “of formal statements” made by any person questioned, including date, time and place of the investigation, signed by the investigator and the questioned person, counsel, and if applicable, the Prosecutor or the judge present.744 For questioning under Article 55(2)—when there is ground to believe that the person committed a crime under the Court’s jurisdiction—or when a warrant or a summons has been issued, then the questioning must be audio or video recorded.745 The person questioned must be informed of the recording, and is giving the opportunity to object, if he so desires.746 The Prosecutor 739 See Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 78. For an historical overview of plea-bargaining in national and international tribunals, see Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa. L. Rev. (2002), at 1. For an analysis based on the differences between common and continental law, see also Henri Bosly, Admission of Guilt Before the ICC and in Continental Systems, ICJ 2.4 (2004), at 1040. 740 Article 55 (1)(b) of the Rome Statute. See also Michael Scharf, Trading Justice for Efficiency—Plea-Bargaining and International Tribunals, ICJ 2.4 (2004), at 1070. 741 Christopher K. Hall, Rights of the Person during an Investigation in COMMENTARY ON THE ROME STATE, above note 7, at 730; Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 127. 742 Ibid., at 128. 743 For the drafting history of these Rules, see Hakan Friman, Investigation and Prosecution, in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 512–515. 744 Rule 111(1). 745 Rule 112(1). 746 Rule 112(1)(a).

168

chapter 1

may also request to record the questioning of others, especially if the recording would reduce further questioning and trauma to victims of sexual abuse, or to children.747 The right to a translator—In order for the investigation to be fair, the Statute also instructs that anyone being investigated must be given a competent translator, and “such translations as are necessary to meet the requirements of fairness.”748 This right, along with the provision in Article 67, requiring competent translations of all proceedings or documents, is especially important in an international court system, dealing with people from around the globe, speaking a myriad of dialects.749 However, this right is narrower than that in Article 67, as at this stage the person has the right only to basic translations necessary.750 If the suspect is to have a chance at adequately defending himself, then certainly the minimum requirement is that he understands the proceedings. Much like the requirement to be informed of the crime, this right ensures that a person is fully aware of what is transpiring, in order to effectively protect himself. The Right not to be deprived of liberty—The final right listed during the investigation period is perhaps the most important, and complicated: the person “shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty” except as the Statute allows.751 As opposed to the ICTY and the ICTR, The Statute provides “an enforceable right to compensation” for anyone who was a victim of unlawful detention.752 While the clause protecting against deprivation of liberty is certainly a necessary component of any list of rights,753 it does remain slightly vague, as the questions of pre-trial detention had not been fully fleshed out in the 747

Rule 112(4). Article 55(1)(c) of the Rome Statute. 749 For a brief discussion on the importance of translators at the ICC, see Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 56–59. 750 The ICTR granted the right “to have the free assistance of an interpreter if he or she cannot understand or speak the language used” (Article 20(4)(f ) of the ICTR Statute), while the ICTY at the indictment stage granted the right to receive “necessary translation into and from a language he speaks and understands’ (Article 18(3) of the ICTY Statute). 751 Article 55(1)(d) of the Rome Statute. For a historical overview of this right in international court systems, see Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 67–72. 752 Article 85(1) of the Rome Statute. For a history of this right in international tribunals, see Stuart Beresford, Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals, 96 A.J.I.L. (2002), at 628. See also Salvatore Zappalà, Compensation to an Arrested or Convicted Person, in THE ROME STATUTE OF THE ICC, above note 679, at 1577–1585. 753 For a discussion on the failure of the ICTR on this issue, see Daniel J. Rearick, Innocent Until Alleged Guilty: Provisional Release at the ICTR, 44 Harv. Int’l L.J. (2003), 577. 748

investigation and prosecution

169

Statute. Long debates754 during the drafting of the RPE led to the inclusion of Rules 117–120 on the issue of detention and arrest, thereby giving this right the necessary strength. Despite the importance of this right, the ICC does allow for detention prior to trial: if there are reasonable grounds that the person committed a crime, and that the arrest is necessary to ensure that the person appears at trial.755 Detention at this stage, pre-trial, is to be utilized only if required in the interest of justice. The Prosecutor and Pre-Trial Chamber must walk a tightrope between detentions necessary for justice, and the right of the individual to liberty. As such, the Statute places the responsibility upon the shoulders of the Pre-Trial Chamber to “ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor.”756 The ruling on the person’s detention must be reviewed at least every 120 days.757 If the Pre-Trial Chamber decides that the delay has been unreasonably, it will consider whether the person is to be released or not. The release may be conditional upon specific restrictions on the person’s liberty, including travel restrictions, restrictions with whom he may communicate, professional activities, etc., after consulting with the Prosecutor and the person concerned.758 What will be considered a ‘reasonable’ delay, particularly in cases of crimes of large magnitude, still remains vague. The Pre-Trial Chamber will have to determine, on a case-by-case basis, what is considered an undue delay, and what is constitutes an appropriate time frame for the case.759

5. The Confirmation of Charges When a person has been surrendered to the Court, or when a person appears before the Court voluntarily or due to a summons, the Pre-Trial Chamber must be satisfied that the person was informed of the alleged crimes760 and of his or her rights set out in Article 55 of the Statute.761 Under Article 61(3) of the Rome Statute, the accused must be given a copy of the 754 See Hakan Friman, Investigation and Prosecution in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 515. 755 Article 58 of the Rome Statute. 756 Ibid., Article 60(4). 757 Rule 118(3). 758 Rule 119(1). 759 For a discussion of the problems of lengthy proceedings at the ICTY, see Stéphane Bourgon, Procedural Problems Hindering Expeditious and Fair Justice, ICJ 2.2 (2004), at 526. 760 Rule 117 of the RPE adds that the person is to receive a copy of the arrest warrant in his or her language as of his or her detention in the custodial State. 761 Article 60(1) of the Rome Statute. For a clause-by-clause analysis of Article 60, see Karim Khan, Initial Proceedings Before the Court, in COMMENTARY OF THE ROME STATUTE, above note 7, at 771–782.

170

chapter 1

document with the intended charges, and the evidence Thirty days prior to the Pre-Trial hearing to confirm the charges. The person must be informed of the right to apply for interim release. If the Pre-Trial Chamber believes that all the conditions for the warrant of arrest hold true, the person shall continue to be detained. If not, the Pre-Trial Chamber may release the person without or subject to conditions,762 such as a prohibition to travel to certain areas or talk to certain people, or must post bond.763 A decision on the release or detention of a person is to be reviewed at least every 120 days by the Pre-Trial Chamber, or at any time if requested by the person or the Prosecutor.764 The person is not to be detained for an “unreasonable” period of time before trial due to an “inexcusable” delay by the prosecution.765 The Rome Statute and the rules do not specify which period of detention would be considered “unreasonable” pending trial, nor which delay of the prosecution would be deemed inexcusable. A hearing on confirmation of charges has to take place within a reasonable time after the person’s appearance before the Court, in the presence of the prosecution, the person charged, and his or her counsel.766 Thirty days767 prior to the hearing, the person must be provided with a copy of the document containing the charges, and be informed of the evidence, which the Prosecutor intends to use at the hearing.768 The Pre-Trial Chamber is to hold “status conferences” to ensure that disclosure takes place under satisfactory conditions.769 The Prosecutor is allowed to continue the investigation before the hearing, and may amend or withdraw any charges, provided that reasonable notice is given to the person,770 and reasons for withdrawal are given to the Pre-Trial Chamber.771 The person may submit evidence to the Pre-Trial Chamber no later than 15 days before the hear762

Article 60(2), Rome Statute. Rule 119(1). For examples of the conditions and arrangements involved in provisional release (5 days and 3 days respectively) of the accused, see Prosecutor v. Galic, ICTY Case No. IT-98-29-A, Decision on Defence Motion for Provisional Release of Stanislav Galic, 23 March 2005; Prosecutor v. Mrksic and Others, ICTY Case No. IT-95-13/1 Decision Pursuant to Rule 65 Granting Mrksic’s Request to Attend his Mother’s Funeral, 30 January 2004. 764 Rule 118(2) and Article 60(3) of the Rome Statute. For the debates on time limits, see Hakan Friman, Investigation and Prosecution, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 518. 765 Article 60(4) of the Rome Statute. 766 Ibid., Article 61(1). For a clause-by-clause analysis and a drafting history of this article, see Kuniji Shibahara, Confirmation of the charges before Trial, in COMMENTARY OF THE ROME STATUTE, above note 7, at 784–792. For the drafting discussions of Rules 121–122 on the confirmation of charges, see Hakan Friman, Investigation and Prosecution, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 523–525. 767 Rule 121(3). 768 Article 61(3) of the Rome Statute. 769 Rule 121(2). 770 Rule 121(4), RPE. “Reasonable notice” signifies that notice is to be given to the person fifteen days before the hearing. 771 Article 61(4) of the Rome Statute. 763

investigation and prosecution

171

ing.772 If the person charged has waived his or her right to be present, or has fled or cannot be found, after all “reasonable steps” were taken to secure his appearance, the Pre-Trial Chamber may hold the hearing without the person, who will be represented by counsel.773 At the hearing, each charge is to be supported with sufficient evidence to establish that the person committed the crime, and the Prosecutor may rely on documentary or summary evidence alone, without calling trial witnesses.774 The person charged may object to the charges, challenge the Prosecutor’s evidence, and present evidence.775 The Registry is required to create and maintain a full record of all proceedings before the Pre-Trial Chamber, including all documents.776 Based on the hearing on confirmation of charges, the Pre-Trial Chamber will determine whether there is sufficient evidence to establish that the person committed the crime, and either confirm the charges and commit the person to a Trial Chamber. The Trial Chamber may decline to confirm the charges, or adjourn the hearing and request the Prosecutor to consider providing further evidence and conducting further investigation, or amending a charge, as the evidence submitted seems to establish a different crime than the one specified in the charge sheet.777 The Prosecutor can later request the Pre-Trial Chamber to confirm the charge again or to confirm a new charge. If the Chamber does not confirm the charges, any warrants previously issued cease to hold.778 After the charges are confirmed, and before trial has begun, the Prosecutor may amend charges only upon leave of the Pre-Trial Chamber and after notifying the accused; but if charges are adder or substituted by more serious ones, a new hearing is required.779 The confirmation procedure enables to evaluate evidence that may have been collected under different systems and in various countries before any decision as to whether the case may be sent to trial. However, a charge confirmed by the Pre-Trial Chamber gives a strong presumption of the person’s guilt even before the trial begun.780 772

Rule 121(6). Article 61(2) of the Rome Statute. For a brief discussion on the rules regarding the confirmation proceedings in absentia, see Hakan Friman, Investigation and Prosecution, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 528–529. See also Daniel Brown, The International Criminal Court and Trial in Absentia, 24 Brook. J. Int’l Law (1998–1999), 763–796, 774 Article 61(5) of the Rome Statute. 775 Ibid., Article 61(6). 776 Rule 121(10), RPE. 777 Article 61(7) of the Rome Statute. 778 Ibid., Article 61(10). 779 Ibid., Article 61(9). 780 Kuniji Shibahara, Confirmation of the charges before Trial, in COMMENTARY OF THE ROME STATUTE, above note 7, at 786. For a comparative discussion on how and why different systems confirm indictments, including previous international courts, see Christopher J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 172–206. 773

CHAPTER II

JURISDICTION, ADMISSIBILITY, APPLICABLE LAW

The ICC was established to prosecute individuals for committing “the most serious crimes of international concern”.781 As such, limitations regarding who can be prosecuted, for which crimes, and under what circumstances— i.e. matters of the ICC’s jurisdiction—are not only relevant for procedural purposes, but also serve to highlight the very essence of the Court.782 By determining the boundaries of the ICC’s jurisdiction in its first twenty-one articles, the Rome Statute defines the function and purpose of the Court. Only some of the “most serious crimes” such as grave breaches of the 1949 Geneva Conventions and the 1977 first Optional Protocol, are subject to compulsory universal jurisdiction under international treaty law. The Rome Statute does not explicitly provide for the application of the principle of universal jurisdiction over the crimes within its competence. The Court functions in complement with national criminal prosecution; the ICC’s jurisdiction begins when the state is “unwilling or unable genuinely” to investigate and/or prosecute the accused.783 Four types of jurisdiction are clearly delineated in the Statute: subject-matter jurisdiction, territorial jurisdiction, temporal jurisdiction, personal jurisdiction. These categories are then further limited by the preliminary rules of admissibility, which often overlap with, but more often further constrain, the rules of jurisdiction. There are various considerations to be made by the Court whenever a question of admissibility or jurisdiction arises, for a decision of admissibility or jurisdiction, like a deferral, might alter the entire process.

781 Article 1 of the Rome Statute. For the relevance of additions and clarifications made by the subsequent Elements of Crime and Rules of Procedure and Evidence, see John T. Holmes, Chapter 3: Jurisdiction and Admissibility, in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 321–348; see also Trevor P. Chimimba, Establishing an Enforcement Regime, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES NEGOTIATIONS AND RESULTS, Roy S. Lee, Ed., Kluwer Law International (1999) (hereinafter “THE MAKING OF THE ROME STATUTE”), 336 to 348. 782 On the jurisdiction of the ad hoc Tribunals, see above at 18–19. 783 Article 17 of the Rome Statute.

chapter ii

174

1. Jurisdiction of the International Criminal Court The Court was granted the power to prosecute most serious crimes; more specifically, it has jurisdiction over the three “core” crimes: the crime of genocide, crimes against humanity, and war crimes, with a provision to include aggression at a later date.784 The Court exercises its jurisdiction over individuals, and significantly not over states.785 Jurisdiction applies only to crimes committed after the Rome Statute came into effect,786 but its territorial reach extends to states that are not parties to the Statute, provided that either the national state of the accused or the state on whose territory the crime was committed is a party to the Statute.787 Jurisdiction is “triggered” either by a state party, the Security Council, or the Prosecutor, the Court must then decide on the “admissibility” of the case. Thus procedural matters of determining jurisdiction and admissibility lead to the exclusion of certain cases and the inclusion of others. 1.1

Complementary Jurisdiction

The drafters of the Rome Statute walked a thin line between respecting national sovereignty and creating a permanent setting for the prosecution of those held responsible of the gravest crimes known to humanity. Nonetheless, the same Statute stresses that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” There exists a presupposition that the state is responsible for, and, unless demonstrated otherwise, will adjudicate the case in good faith.788 As of its Preamble, the Statute emphasizes the complementary nature of the Court.789 The ICC functions as a safeguard mechanism for situations in which “the State is unwilling or unable genuinely to carry out the investigation or Prosecution.”790 The Court is the sole arbitrator of whether or not the state’s

784

Ibid., Article 5. Ibid., Article 25. 786 Ibid., Article 11. 787 Ibid., Article 12. For a discussion on the difficulties arising from the emphasis on the individual’s nationality, including multiple nationals, changes in nationality, refugees, or stateless individuals, see Zsuzsanna Deen-Racsmany, The Nationality of the Offender and the Jurisdiction of the International Criminal Court, 95 AJIL, ( July 2001) 606; see also Flavia Lattanzi, Compétence de la Cour pénale internationale et consentement des états, 103 Revue générale de droit international public (No. 2, 1999), 425. 788 For general issues of admissibility and complementary criteria see Ruth B. Philips, The International Criminal Court Statute: Jurisdiction and Admissibility, 10 Criminal Law Forum (1999), at 63–66, and 73 (hereinafter “Jurisdiction and Admissibility”). 789 Triffterer Otto, in COMMENTARY ON THE ROME STATUTE, above note 7, at 59–60. 790 Article 17 of the Rome Statute. 785

jurisdiction, admissibility, applicable law

175

judicial proceedings were adequate in the case brought before them,791 though three broad guidelines are set out in Article 17.792 The case is admissible if the state’s proceedings were a sham trial to shield the accused from criminal responsibility, included an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice, or the proceedings were not conducted independently or impartially. Likewise, the Court can step in if the state was willing, but unable, to prosecute the accused: if the state could not obtain the accused, could not obtain the necessary evidence and testimony, or was not able to carry out the proceedings. Hence while the Rome Statute gives preference to the domestic courts to prosecute the accused, if and when the Court decides that the domestic proceedings were not adequately conducted, the case can be submitted before the Court for further examination and eventual adjudication.793 1.2

Jurisdiction Ratione Materiae (Subject-Matter)

The three crimes defined as being serious enough to be of concern to the international community—genocide, crimes against humanity, war crimes— fall under the jurisdiction of the International Criminal Court. A fourth crime, the crime of aggression, is included in Article 5 of the Rome Statute, the Article ostensibly demarcating the crimes under the ICC’s jurisdiction, however conditional upon the definition of the crime.794 A number of other 791 This fact is emphasized by many scholars, including Jelena Pejic in Creating a Permanent International Criminal Court: The Obstacles to Independence and Effectiveness, 29 Columbia Human Rights Law Review (Spring 1998) at 308–310. 792 See John T. Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF THE ICC, above note 679, at 667–686 for a detailed discussion of the complementarity criteria in the Rome Statute and some of its historical background. 793 For an overview of the significance of the complementarity clause, see Johan D. Van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 Emory International Law Review at 66–78. For a comparison of complementarity in the Rome Statute versus the concurrent jurisdiction principle utilized in Rwanda, and lessons to be learned from the problems which arose in the ICTR, see Madeline H. Morris, Rwandan Justice & the International Criminal Court, 5 ILSA Journal of International & Comparative Law (Spring 1999). For the positive influences of the complementarity clause on domestic proceedings, see Jonathan I. Charney, Editorial Comments: International Criminal Law and the Role of Domestic Courts, 95 The American Society of International Law, ( January 2001) at 122–123 and Richard Goldstone, International Jurisdiction and Prosecutorial Crimes, 47 Cleveland State Law Review, (1999) at 477. For the complementarity clause as an “escape” clause from constitutional difficulties, see Helen Duffy, National Constitution Compatibility and the International Criminal Court; 11 Duke Journal of Comparative and International Law (Fall/Winter 2001) at 18–20. For the challenges facing the ICC relating to national sovereignty, see David A. Nill, National Sovereignty: Must it be Sacrificed to the International Criminal Court, 14 Brigham Young University Journal of Public Law, (1999) at 130–135. 794 Andreas Zimmerman, Introduction, in COMMENTARY ON THE ROME STATUTE, above note 7, at 102–106. See also Giorgio Gaja, The Long Journey Towards Repressing Aggression, in THE ROME STATUTE OF THE ICC, above note 679, at 427–442.

176

chapter ii

crimes which were under discussion for inclusion, for example treaty crimes, terrorism, drug trafficking, or mercenarism were likewise excluded and do not fall under the ICC’s jurisdiction.795 Disagreements as to the interpretations of the three core crimes, examined in greater detail below, are extremely slight, although certain elements within their detailed definitions do constitute a change from generally accepted international law. Often described as a subset of crimes against humanity, genocide opens the list of punishable crimes as its own offense,796 defined in article six as a series of acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” This definition excludes isolated attacks and emphasizes the necessity for a “quantitative threshold,”797 albeit an ambiguous one.798 The group under discussion must be a stable group determined by birth,799 and thus the targeting of political, social, and economic groups is not included in the category of genocide. The Statutes enumerate five acts of genocide: killing members of the group, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about its physical destruction, imposing measures to prevent births, or forcibly transferring children of the group. All five acts are physical; cultural genocide is not included. Also significantly omitted from the crime of genocide is the crime of “ethnic cleansing” (imposing measures forcing groups to abandon their homes), which was proposed as a sixth act and struck down in discussion.800 Genocide requires a mental element, namely an intent to destroy, or what is known as a dolus specialis,801 therefore acts of negligence or recklessness would not be included in the definition of genocide. Finally, the elements of crime on genocide introduced a clause to situate the crime of genocide only in the context of “a 795 Andreas Zimmerman, Introduction, in COMMENTARY ON THE ROME STATUTE, above note 7, at 98–100. 796 For a detailed discussion of the definition of genocide in the ICC, specifically in comparison to the ICTY and ICTR, see Antonio Cassese, Genocide, in THE ROME STATUTE OF THE ICC, above note 679, at 335–350. For a phrase-by-phrase analysis of the Statutes on Genocide, see William Schabas, Art. 6, COMMENTARY ON THE ROME STATUTE, above note 7, at 107–116. 797 Ibid., at 109. 798 For a related discussion and debate on the omission of conspiracy, incitement, and complicity for genocide, see William Schabas, Art. 6, in ibid. at 115–116, and Antonio Cassese, Genocide, in THE ROME STATUTE OF THE ICC, above note 679, at 347. 799 William Schabas, Genocide, in COMMENTARY ON THE ROME STATUTE, above note 7, at 110. 800 Ibid., at 111. Ethnic cleansing is, however, subsumed under the category of crimes against humanity. 801 “[A]n aggravated criminal intent that must exist in addition to the criminal intent accompanying the underlying offense,” Antonio Cassese, Genocide, in THE ROME STATUTE OF THE ICC, above note 679, at 338. Cassese at 347–348, elaborates upon this point and holds that a distinction may be made for intent required between a commander and a subordinate. Though it would seem that one who commits genocide must display both intent and knowledge, such may not be the case for a commander.

jurisdiction, admissibility, applicable law

177

manifest pattern of similar conduct against that group or was conduct that could itself effect such destruction.”802 Crimes against humanity are oft described as acts that shock the world with their savagery,803 and thus the criterion that the crime must be directed against a civilian population804 is no surprise. Eleven acts, when committed in the context of a “widespread or systematic attack” and “with knowledge of the attack” are included in Article seven under the definition of the crime:805 murder,806 extermination,807 enslavement,808 deportation or forcible transfer,809 imprisonment or other deprivation of physical liberty,810 torture,811 rape and other sexual violence,812 discriminatory persecution against

802 Cassese raises two objections to this clause and highlights the fact that this requirement is not part of customary law nor of Article 6 of the Statute; Antonio Cassese, Genocide, in THE ROME STATUTE OF THE ICC, above note 679, at 349–350. For the additional nuances introduced by the drafted Elements of Crimes, see Mauro Politi, Elements of Crime, in ibid., at 463. 803 Rodney Dixon writes that “The desire to prohibit only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied . . . endangered the international community or shocked the conscience of mankind” is, without dispute, the essential feature crimes against humanity, Rodney Dixon, Crimes Against Humanity, Article 7, Paragraph 1, in COMMENTARY ON THE ROME STATUTE, above note 7, at 123. 804 Civilians include those who are not taking part in hostilities, including hors de combat and those who have laid down their arms. The presence of some non-civilians within the population does not cause the population to lose its ‘citizen’ status. However, the definition of civilians for the purpose of this crime has not been fully clarified. For a discussion and sources, see Rodney Dixon, Crimes Against Humanity, above note 818, at 127, footnote 45. 805 For a detailed history of the codification and legal usage of the category of crimes against humanity, see Phyllis Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22 Fordham International Law Journal (December 1998), at 457–504. 806 Christopher K. Hall, Crimes Against Humanity, The Different Paragraphs, in COMMENTARY ON THE ROME STATUTE, above note 7, at 129–130, specifically on the intent required for murder and the basis in customary law. 807 Ibid., at 131–132 and 160, specifically on the overlap between extermination and genocide. 808 For a general discussion on the crime of slavery in international law since the late 1800’s, see Rassam A. Yasmine, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 Virginia Journal of International Law (Winter 1999), 303–352. See also Christopher K. Hall, Crimes Against Humanity, The Different Paragraphs, in COMMENTARY ON THE ROME STATUTE, above note 7, at 132–134 and 160, specifically on the history of the prohibition against slavery, and an argument for a broad definition of slavery in the ICC. 809 Ibid., at 134–136 and 160–161, specifically on the identity of those who are transferred. 810 Ibid., at 137–138. 811 For a discussion on the definition of torture in international law, see Winston P. Nagan and Lucie Atkins, The International Law of Torture: From Universal Proscription to Effective Application and Enforcement, 14 Harvard Human Rights Journal (Spring 2001) at 91–94. See also Christopher K. Hall, Crimes Against Humanity, The Different Paragraphs, in COMMENTARY ON THE ROME STATUTE, above note 7 at 139, and 163, arguing for a broad definition of torture. 812 For a historical survey of the inclusion of rape and forced pregnancy in crimes against humanity, as well as in war crimes and perhaps even genocide, and the respective intent

178

chapter ii

any identifiable collectivity,813 enforced disappearance,814 apartheid,815 and lastly, other inhumane acts causing great suffering or serious physical and mental injury.816 All constitute a “serious attack on human dignity or a grave humiliation or degradation”817 and are considered crimes if perpetrated in times of war and peace alike, but only if they occur within the context of a widespread and systematic attack818 and if some nexus can be proven between the criminal act and a larger attack819 (implying of course that isolated random acts of violence are excluded from this serious category of crimes).820 The individual perpetrator must be aware of the possible or inevitable factual consequences of his or her actions, and must possess the knowledge that the offences are part of systematic, widespread, requirements, see Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Columbia Human Rights Law Review (Summer 2001), 625–667. For a broader history of sexual crimes within international law, see Brook Sari Moshan. Women, War, and Words. The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity, 22 Fordham International Law Journal (November 1998), 154–184. See also Christopher K. Hall, Crimes Against Humanity, The Different Paragraphs, at 139–146 specifically on the history of the inclusion of sexual violence within the category of crimes against humanity. Also, at 141 and 143, a discussion on the level of force and coercion necessary for sexual crimes. See 145 for the relationship between rape and torture. See also Machteld Boot, Crimes Against Humanity, Article 7, Paragraph 2 Sections f and g (hereinafter “Article 7”), in COMMENTARY ON THE ROME STATUTE, above note 7, at 164–165 regarding coercion. 813 See ibid., at 146–151; Christopher Hall, Crimes Against Humanity, The Different Paragraphs, in ibid., at 165–167. These authors detail the articles defining the crime of persecution, as the Rome Statute is the first international document where this crime has been defined. It is interesting to note that only this crime requires a double requirement of discriminatory intent. 814 Christopher Hall, Crimes Against Humanity, The Different Paragraphs, in ibid., at 151–152 and 167. 815 For the legal reasoning of why apartheid is a crime against humanity, specifically in the context of South Africa, see Ronald C. Slye, Apartheid as a Crime Against Humanity: A Submission to the South African Truth and Reconciliation Committee, 20 Michigan Journal of International Law (Winter 1999), 267–300. See also Christopher Hall, Crimes Against Humanity, The Different Paragraphs, in COMMENTARY ON THE ROME STATUTE, above note 7, at 152–154 and 167–170, specifically describing the broad range of cases that fall under the category of apartheid. 816 Machteld Boot, Article 7, in ibid., at 154–158 explains this seeming catch phrase in greater detail. Antonio Cassese (Crimes Against Humanity, in THE ROME STATUTE OF THE ICC, above note 679, at 373–374), also describes the acts in detail, along with the added specifications of the Elements of Crime. 817 Ibid., at 360. 818 Rodney Dixon, Crimes Against Humanity, in COMMENTARY ON THE ROME STATUTE, above note 7, at 126, points to the ambiguities of this phrase, and maintains that “It is difficult to concretely outline exactly which factual scenarios are covered by each concept (widespread and systematic). The adjudication will have to take place on merits of each case.” 819 Rodney Dixon (Ibid., at 124), adds that the mass murder of civilians may constitute the attack itself. At 125 he gives examples of ways in which this nexus can be revealed. 820 Ibid., at 123 and 126–127 and Antonio Cassese, Crimes Against Humanity, in THE ROME STATUE OF THE ICC, above note 679, at 356–360.

jurisdiction, admissibility, applicable law

179

abuses; he or she does not, however, have to know all the characteristics or details of the systematic attacks.821 The third category of punishable crimes is that of war crimes, crimes committed during an armed conflict which are prohibited by international law (treaty or custom). Though war crimes have a long history, being delineated in international law as early as the Versailles Treaty at the end of World War One, the definitions of the category have been vague. In fact, Article Eight of the Rome Statute is one of the first attempts to comprehensively define war crimes. To do so, it refers by name to the Geneva conventions of 1949 as its base-line definition for war crimes, and specifies eight crimes listed therein: willful killing, torture or inhumane treatment, willfully causing suffering or serious injury to body or health, extensive destruction of property, compelling one to serve in the hostile forces, depriving a protected person of the right to fair and regular trial, unlawful deportation or transfer, and taking of hostages.822 The Statute lists other acts not covered by the Geneva conventions, but which are considered customary law, and to include another twenty-six acts as war crimes: intentionally directing attacks against civilians, civilian objects, undefended non-military objectives, or the natural environment, attacking humanitarian assistance or peacekeeping missions, attacking persons hors de combat, making improper use of distinctive protective signs, transferring civilian population, attacking protected buildings, physically mutilating individuals, killing or wounding treacherously, refusing quarter, destroying or seizing enemy property unnecessarily, suspending rights of nationals in a court of law, compelling nationals to take part in hostile acts, pillaging, employing poison, poisonous gases or liquids,823 certain types of bullets, inhumane weapons, committing outrages against personal dignity, committing rape and other sexual crimes, utilizing protected persons as shields, starving civilians, and conscripting children.824 Though ambiguities still remain in the precise definitions of these acts,

821 Ibid., at 363 and 365. Cassese also analyzes these requirements in light of customary international law and case studies. 822 For more detailed explanations of each of these crimes listed in the Geneva Conventions, and their origins in the Conventions, see Michael Bothe, War Crimes, in ibid., at 390–395 and William J. Fenrick, War Crimes-paragraph 2(a): Grave Breaches, Art. 8, in ibid., at 181–185. 823 The inclusion of prohibited weapons was hotly contested; for a short history, see Michael Cottier, Preliminary Remarks on Paragraph 2(b) (xvii)–(xx): Prohibited weapons, Drafting History, in COMMENTARY ON THE ROME STATUTE, above note 7, at 239–244; see as well Michael Bothe, War Crimes, in THE ROME STATUE OF THE ICC, above note 679, at 406–409. 824 For more detailed descriptions, histories, and examples of each of these crimes, see William J. Fenrick, Patricia Viseur Sellers and Andreas Zimmerman, War Crimes—Article 8, paragraph 2(b), in COMMENTARY ON THE ROME STATUTE, above note 7, at 185–269, and Michael Bothe, War Crimes, in THE ROME STATUE OF THE ICC, above note 679, at 395–417.

180

chapter ii

they do entail a basic framework from which to determine a war crime. War crimes are defined as such only in the context of an armed conflict, hence the obvious label of war crimes, and more precisely must be in connection with the conflict, as defined by the Elements of Crime. The extent of the necessary connection (nexus) is yet to be clarified, and such clarification will probably occur on an ad hoc basis.825 The extent of the necessary intent and knowledge of the perpetrator is still unclear, both from Article 8 and from the subsequently drafted Elements of Crime. What is clear is that war crimes are not required to have a plan, policy, or scale. In other words, even the killing of a single prisoner can constitute a war crime if a nexus with the conflict can be determined; still, the Prosecutor has much leeway in deciding who and when to investigate a crime.826 Both the list of war crimes taken from the Geneva Conventions and the list of crimes drafted from customary international law were previously applicable only in international armed conflict. Sections (c) and (e) of the Article on war crimes go beyond previous law and extends war-crimes to situations “not of an international character,” meaning a “protracted armed conflict” between a government and an armed group, but not to “situations of internal disturbances.”827 And while the Statute reiterates a partial list of objects and acts as examples of crimes committed in non-international settings, it is to be assumed that all the acts listed above would ipso facto qualify as serious violations in non-international settings.828 However, the last clause of Article 8 on War Crimes emphasizes that the extension of war crimes to non-international settings shall not “affect the responsibility of a government to maintain or re-establish law and order . . . or to defend the unity and territorial integrity . . ., by all legitimate means,” thereby reiterating a commitment to state sovereignty which runs through the entire Rome Statute, but still limiting state action only to “legitimate means.” Acts defined as genocide, crimes against humanity, or war crimes would, by definition, be illegitimate even if perpetrated in the framework of a defensive measure. 825

Ibid., at 389. On the particular problem of intent and knowledge in war crimes, see ibid., at 389–390. Also see William J. Fenrick, War Crimes—Paragraph 2, in COMMENTARY ON THE ROME STATUTE, above note 7, at 181 and Andreas Zimmerman, in ibid., at 264 on the ambiguity of these factors. For the additional nuances introduced by the drafted Elements of Crimes, see Mauro Politi, Elements of Crime, in THE ROME STATUE OF THE ICC, above note 679, at 466–467. 827 For the history of this development, see Andreas Zimmerman, War crimes—Preliminary Remarks on paragraphs 2(c)–( f ) and paragraph 3: War Crimes committed in an armed conflict not of an international character—Article 8, in COMMENTARY ON THE ROME STATUTE, above note 7, (hereinafter “Article 8”) at 262–269 and Michael Bothe, War Crimes, in THE ROME STATUTE OF THE ICC, above note 679, at 417–418. 828 See Andreas Zimmerman, War Crimes—paragraph 2, Article 8, in COMMENTARY ON THE ROME STATUTE, at 271–286 for an explanation of this reiteration of crimes. 826

jurisdiction, admissibility, applicable law 1.3

181

Jurisdiction Ratione Temporis (Temporal)

The new criminal court claims jurisdiction only for crimes committed “after the entry into force of this Statute” for each state.829 Jurisdiction is thus not applied retroactively, unless a joining state specifically accepts retroactive jurisdiction with a precise clause defining the time and scope of this addition. The Statute does not allow the ICC to try individuals for crimes committed before the first day of the month after the 60th day following the deposit of the 60th instrument of ratification, even if the crime was considered an illegal act by virtue of international law when it was committed. The court’s jurisdiction is strictly for future crimes. In terms of the future, Article 29 makes clear that crimes within the Court’s jurisdiction are not subject the any statute of limitation. Of course, the temporal jurisdiction of the court can be further limited by any of the other jurisdiction requirements of the ICC, including territorial or personal jurisdiction criteria, and can be limited by other procedural elements, such as the possibility of deferral of Prosecution by the Security Council, or a transitional provision (the opting-out mechanism) discussed later in the Statute.830 1.4

Jurisdiction Ratione Loci (Territorial)

The International Criminal Court was established to punish the most serious crimes of concern to the international community. Its territorial jurisdiction is consequently vast. Crimes committed on the territory of a state which is party to the Rome Statute, or perpetrated by a national of a state party to the Rome Statute, are under the jurisdiction of the Court.831 Moreover, it may be possible for the Court to exercise jurisdiction on a non-party state if it follows actions taken by the Security Council.832

829 Article 11, Rome Statute, and also Article 24, Rome Statute on non-retroactive personal jurisdiction. 830 For the history, limitations, and implications of this article, see Stéphane Bourgon, Jurisdiction Ratione Temporis, in THE ROME STATUTE OF THE ICC, above note 679, at 543–558. For a clause-by-clause analysis, see Sharon A. Williams, Article 11: Jurisdiction ratione temporis, in COMMENTARY ON THE ROME STATUTE, above note 7, at 323–328. For a discussion on retroactivity in international law, see Susan Lamb, Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law, in THE ROME STATUTE OF THE ICC, above note 679, at 742–745 and 762–765. 831 Article 12 of the Rome Statute. Jurisdiction over “nationals” is also relevant to the personal jurisdiction of the ICC. 832 For a discussion on the issue, see Stéphane Bourgon, Jurisdiction Ratione Loci, in THE ROME STATUTE OF THE ICC, above note 679, at 559; Morten Bergsmo, Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship between the Court and the Security Council, 69 Nordic Journal of International Law (no. 1, 2000), 87. See also Sharon A. Williams, Article 12: Preconditions to the Exercise of Jurisdiction, in COMMENTARY ON THE ROME STATUTE,

182 1.5

chapter ii Jurisdiction Ratione Personae (Personal)

People are prosecuted at the ICC, not states or abstract entities.833 All persons over the age of 18,834 irrespective of their official positions,835 can be tried by the Court for the perpetration of crimes listed above. A person who was previously tried, and either convicted or acquitted by the ICC with “respect to the conduct with formed the basis of crimes” for which he was tried may not be re-tried by the ICC.836 Others excluded from criminal responsibility at the ICC include a person suffering from a mental disease, or drunkenness, or was acting reasonably to defend himself or another person, or caused by duress resulting from the threat of imminent death or bodily harm.837 A person can be tried for individually committing above note 7, at 329. For a more historical take on the matter and international viewpoints, see Johan Van der Vyver, Personal and Territorial Jurisdiction, above note 793, at 37; For the alternate proposals on territorial jurisdiction, see Ruth B. Philips, The ICC Statute: Jurisdiction and Admissibility, above note 788, at 66. 833 Article 25 of the Rome Statute. “The Court shall have jurisdiction over natural persons.” For the history of individual responsibility in international law, Johan, Personal and Territorial Jurisdiction, above note 736, at 4–9, and Alexander Orakhelashvili, The Position of the Individual in International Law, 31 California Western International Law Journal (2001) 241–276, who discusses both individual rights and individual criminal responsibility in international law. 834 Article 26 of the Rome Statute. For the history and implications of the age limitation, see Roger S. Clark and Otto Triffterer, Article 26: Exclusion of Jurisdiction over Persons under 18, in COMMENTARY ON THE ROME STATUTE, above note 7, at 493–499. Also see Micaela Frulli, Jurisdiction Ratione Personae, in THE ROME STATUTE OF THE ICC, above note 679, 527–541 at 533–534. 835 Under Article 27 of the Rome Statute. “This Statute shall apply equally to all persons without any distinctions based on official capacity . . . Immunities . . . shall not bar the Court from exercising its jurisdiction over such a person.” For background on this Article, see Otto Triffterer, Article 27: Irrelevance of Official Capacity, COMMENTARY ON THE ROME STATUTE, above note 7, at 501–514. For a historical overview of immunities in international law, see Paola Gaeta, Official Capacity and Immunities, in THE ROME STATUTE OF THE ICC, above note 679, at 975–1001. 836 Article 20, Rome Statute. This Article also reiterates the complementarity principle, legislating that one who was tried by another court for the crime shall not be tried by the ICC unless the other proceedings were for the purpose of shielding the alleged perpetrator, or were not conducted independently, impartially, or conducted in a manner inconsistent with an intent to bring the person to justice. For a discussion on the principle of double jeopardy in international law, see Christine Van den Wyngaert, and Tom Ongena, Ne bis in Idem Principle, Including the Issue of Amnesty, in THE ROME STATUTE OF THE ICC, above note 679, at 705–728. For a clause by clause analysis of Article 20, and a history of this principle in international law, see Immi Tallgren, Ne bis in Idem, in COMMENTARY ON THE ROME STATUTE, above note 7, at 419–434, specifically at 421 for its relationship to the complementarity principle. 837 Article 31 of the Rome Statute. For a detailed explanation of these categories and their ambiguities and difficulties, see Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum (1999) (hereinafter “General Principles”), at 24–29 and likewise Kai Ambos, Other Grounds for Excluding Criminal Responsibility, in THE ROME STATUTE OF THE ICC, above note 669, at 1003–1047. See also Albin Eser, Grounds for Excluding Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 537–554.

jurisdiction, admissibility, applicable law

183

a crime under the ICC’s jurisdiction, ordering, soliciting, or inducing the commitment of a crime, substantially attempting to commit the crime, contributing to the perpetration of a crime, inciting to and assisting attempted genocide, assisting an attempted or committed crime, or in any way contributing to a crime with the intention of furthering the criminal activity or with the knowledge of the intention of the group to commit the crime.838 The responsibility of a perpetrator is determined on an individual basis, unrelated to the liability of any other person involved in the act. Thorny issues arise in relation to the intent and awareness necessary for liability. A (military) commander who is criminally responsible for crimes committed by forces under his effective command or authority, and control if he knew or should have known of the upcoming attack, and failed to take all reasonable measures to prevent the crimes from occurring, constitutes a very high requirement for the commander’s responsibility.839 A superior (civil) officer’s responsibility is slightly less than the military commander, as negligence (“should ” have known) is not liable, but rather a civil officer is liable if he “consciously disregarded information which clearly indicated” the coming crime.840 A subordinate is not criminally responsible if he was under a legal obligation to obey orders, did not know that the order was unlawful, and the order was not “manifestly” unlawful (excluding orders to commit genocide or crimes against humanity).841 Regular perpetrators are liable if the crime is committed with “intent and knowledge,” intent being defined as having intent to engage in the conduct and meaning to cause the consequence or being aware of the ordinary consequences, and knowledge

838 Article 25 of the Rome Statute. For the differentiation between the types of “participation” liable under the ICC, see Kai Ambos, General Principles, above note 837, at 8–16. In parallel, see Ambos, Kai, Article 25: Individual Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 475–492 for a clause by clause analysis of Article 25; See Albin Eser, Individual Criminal Responsibility, in THE ROME STATUTE OF THE ICC, above note 679 at 767–821 for a clause by clause analysis of individual perpetration and participation and a comparison with national and customary law. 839 Article 28 of the Rome Statute. For a history of command responsibility and a close analysis and refinement of the Rome Statute’s definition, see Kai Ambos, Superior Responsibility, in THE ROME STATUTE OF THE ICC, above note 679, at 823–871. See also Prosecutor v. Aleksovski, ICTY Case No.: IT-95-14/1-A, Judgement, 24 March 2000, para. 66 to 76, and ibid., ICTY Case No.: IT-95-14/1-T, Judgement, 25 June 1999, para. 83 to 138; Prosecutor v. Tadic, ICTY Case No. IT-94-1, Judgement, 15 July 1999. 840 See Kai Ambos, General Principles, above note 837, at 16–20. See also William J. Fenrick, Article 28—Responsibility of Commanders and other Superiors, in COMMENTARY ON THE ROME STATUTE at 515–522. For a case where a civil officer himself committed the crimes see Todorovic Sentencing Judgement, above note 464. 841 Article 33, Rome Statute. See Andreas Zimmerman, Superior Orders, in THE ROME STATUTE OF THE ICC, above note 679, at 957–973 on the history of the responsibility of subordinates, and a definition of the Rome Statute’s article. See also Otto Triffterer, Superior Orders and Prescription of Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 573–588.

184

chapter ii

being defined as “awareness” that a circumstance exists or a consequence will ordinarily occur.842 A “mistake of fact” can avoid criminal responsibility, but only if it negates the required mental element of the crime.843 Similar to the definition of someone who is mentally ill or intoxicated, or to the specific intent and knowledge requirements for each type of crime mentioned above, these personal levels of responsibility are difficult to define, assess or prove, and will most likely be sharpened on an case-by-case basis by the Court.

2. Admissibility and Preliminary Rulings If it is determined that a crime falls under the jurisdiction of the ICC, in terms of the details of the crime committed (subject-matter jurisdiction), the time and place of the crime (temporal and territorial jurisdiction), the individual perpetrator (personal jurisdiction), and the relationship to the national court system (complementary jurisdiction), then the case can be brought before the court in one of three ways.844 A state party can refer a crime to the Prosecutor,845 the Security Council, acting under Chapter VII of the United Nations Charter can refer a crime to the Prosecutor,846 or the Prosecutor may initiate investigation proprio motu.847 It is to be expected that there will be cases initiated by the Prosecutor and he does have a great degree of independence to decide whether or not to bring a case. To counterbalance his or her power, the Rome Statute included a number of checks and balances. After the Prosecutor ascertains that there is a reasonable basis to begin an investigation and establishes the seriousness of the case, the investigation will begin if the case was referred by the Security Council.848 If the Prosecutor decided to bring the case, he must submit a request for authorization of an investigation to the

842

Article 30 of the Rome Statute. Ibid., Article 32. For a comprehensive account of this clause, and its connection with other “intent and knowledge” clauses in the Statute, see Albin Eser, Mental Elements—Mistake of Fact and Mistake of Law, in THE ROME STATUTE OF THE ICC, above note 679, at 890–937. See also Donald K Piragoff, Mental Element, in COMMENTARY ON THE ROME STATUTE, above note 679, at 527–533, and Otto Triffterer, Mistake of Fact or Mistake of Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 555–571. 844 Article 13 of the Rome Statute. 845 Ibid., Article 14. 846 Ruth B. Philips (in Jurisdiction and Admissibility, above note 788, at 73), asserts that despite the ambiguities, it would seem that all the criteria for jurisdiction, including complementary jurisdiction, applies also to referrals by the Security Council. 847 Detailed in Article 15 of the Rome Statute. 848 For the inconsistent usage of the words “case” and “situation,” see Ruth B. Philips, Jurisdiction and Admissibility, above note 788, at 77. 843

jurisdiction, admissibility, applicable law

185

Pre-Trial Chamber. Only after the Pre-Trial Chamber concurs that there exists a reasonable basis for investigation, and confirms the Court’s jurisdiction in the matter, can an investigation begin. If the Chamber rejects the request, the Prosecutor can bring the matter to the Chamber again only in case of new facts or evidence.849 Where a state refers a situation to the Court, and the Prosecutor determines that a reasonable basis for an investigation exists, or if the Prosecutor, with the approval of the Pre-Trial Chamber, commenced an investigation, he must notify all relevant state parties.850 The Prosecutor does have the power to limit the information to be transmitted to the states, if he or she deems it necessary to protect persons, evidence, or prevent persons from escaping. Within one month of notification, the state, which could exercise jurisdiction over the individual, has the right to inform the Prosecutor that it is investigating. The Prosecutor must defer to the state’s investigation (in accordance to the complementarity principle) unless the Pre-Trial Chamber, at the request of the Prosecutor, authorizes an investigation, due to the state’s inability or unwillingness to genuinely carry out the investigation. states must respond to the Prosecutor’s periodic requests on the progress of the case. Once again, the provisions to involve the state at a very early stage in the Court’s proceedings indicate an attempt to balance the need for an impartial universal criminal court with the need to maintain national sovereignty.851 The Court has the power to determine its own jurisdiction on any case.852 Challenges to the Court’s jurisdiction or admissibility, however, can be brought by the accused, the state which has jurisdiction, or the state whose acceptance of jurisdiction is required (the state on whose territory the crime was committed or the nation of the accused).853 Such a challenge can be brought only once by each entity, and must be done in a timely manner. The Prosecutor, after a challenge has been made, has the right to seek a prompt ruling from the Court on the questions of jurisdiction

849

Article 15 of the Rome Statute. Ibid., Article 18. For the United State’s role in the inclusion of this Article, see David J. Scheffer, Developments in International Criminal Law: The United States and the International Criminal Court, 93 American Journal of International Law ( January 1999), at 15. 851 For a clause-by-clause analysis of the Preliminary Rulings, see Daniel D. Ntanda Nsereko, Preliminary Rulings Regarding Admissibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 395–404, specifically for the delicate balance between the Prosecutor’s powers, checks upon his power, and state sovereignty, at 397. 852 Article 19 of the Rome Statute. For a clause-by-clause analysis of challenges to jurisdiction, see Christopher Hall, Challenges to the Jurisdiction of the Court, in COMMENTARY ON THE ROME STATUTE, above note 7, at 406–418. 853 For a discussion on the legal debates over state consent and universal jurisdiction, see Leila Nadya Sadat, and S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Georgetown Law Journal (2000), 411. 850

186

chapter ii

or admissibility.854 Before the ruling has been made, nevertheless, the Prosecutor can request permission to continue collecting evidence, pursue an investigation to secure important evidence, or to prevent the escape of wanted individuals.

3. Applicable Law International law is often plagued with a court’s difficulty in deciding between different, and conflicting, sources of international law. The Rome Statute, in an effort to stave off such difficulties, spells out the sources of law of relevance for the International Criminal Court, and the order of preference.855 The primary law of the Court is the Rome Statute, the Elements of Crime, and the Rules of Procedure and Evidence, which were finalized after the Statute. If a conflict exists between them, the Statute has priority. Next, the Court can rely on applicable treaties, and established principles and rules of international law, specifically international law of armed conflict.856 The last source of law for the International Criminal Court are the general principles of law derived from national legal systems,857 as long as they are consistent with the Statute and generally recognized international law. The Court may also rely on precedent. Lastly, the application of law must be “consistent with internationally recognized human rights”.858

4. General Principles of Criminal Law Articles 22–33 of the Rome Statute, enumerate fundamental principles of the main criminal justice systems, some of which were discussed previously as relevant to jurisdiction. The list begins with nullum crimen sine lege, the 854 For an overview of these pretrial proceedings, and the challenges which will present themselves when implemented, see David Stoelting, ICC Pretrial Proceedings: Avoiding Gridlock, above note 667, 413–423. 855 Article 21 of the Rome Statute. 856 The ambiguity in the phrase “principles and rules of international law” in clause (b), especially as distinct from the “general principles of law” derived from the national systems in clause (c), is striking. Margaret McAuliffe deGuzman (Applicable Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 441–443), claims that the principles in clause (b) may include the principle of proportionality and of legality. She points, however, to the difficulties of definition and significant overlap between the two categories. She also claims that “rules of international law” must be defined as custom, a generally binding form of international law. 857 Margaret McAuliffe deGuzman, in ibid., at 442, explains that this means that the judge is to apply “not the concrete rules of law found in national legal systems, but the principles underlying these rules.” 858 Article 21(3) of the Rome Statute.

jurisdiction, admissibility, applicable law

187

principle of legality, under which a person cannot be held responsible for a crime unless it was a crime under the Court’s jurisdiction when it was committed. The same principle also includes the rule of ‘strict construction,’ meaning that a definition of a crime is to be as narrow as possible, not to include analogies, and in the case of ambiguity, to be interpreted in favor of the accused.859 The principle of nulla poena sine lege, closely related to the prohibition on retroactive offenses, prohibits the Court from imposing retroactive punishments or heavier penalties for an action than the one in existence at the time the crime was committed.860 Lastly, the Court cannot prosecute an individual for a crime committed before the entry into force of the Statute, and if any change of law occurs before final judgement, the law more favorable to the accused must be applied.861 The other rules in this section—individual criminal responsibility, exclusion of individuals under eighteen, irrelevance of official capacity, responsibility of commanders and superiors and prescription of law, mental element required, non-applicability of statue of limitations, and mistake of fact or law—were discussed previously under the relevant categories of jurisdiction. For the first time in the history of international law,862 the drafters of the Statute decided to delineate general principles of international criminal law, to be included in the Statute of the International Criminal Court. Part Three of the Rome Statute, “General Principles of Criminal Law,” includes a number of principles that, on first blush, seem to be fairly straightforward renditions of common criminal law principles. A closer look, however, reveals that these articles in fact constitute one of the first attempts to combine principles from different law systems—civil law systems and common law systems, and the myriad of historically driven variations in each—and formulate new principles which would be an acceptable compromise for all states party to the Statute. Practically speaking, a separate section on criminal principles was not necessary for the functional interpretation of the Statute; many of the articles in Part Three are closely related to issues of jurisdiction and admissibility and could have been included earlier in

859 Ibid., Article 22. For the sources of this principle in international law, and a clause by clause analysis, see Bruce Broomhall, Nullum crimen sine lege, in COMMENTARY ON THE ROME STATUTE, above note 7, at 452). 860 Article 23 of the Rome Statute. For a brief discussion on the place of this rule in the ICC, see William A. Schabas, Nulla poena sine lege, in COMMENTARY ON THE ROME STATUTE, above note 7, at 463–466. 861 Article 24 of the Rome Statute. For a brief history of the retroactivity principle in international law, see Raul C. Pangalangan, Non-retroactivity ratione personae, in COMMENTARY ON THE ROME STATUTE, above note 7, at 467–471. 862 See Maria Kelt, and Herman von Hebel, General Principles of Criminal Law and the Elements of Crime, in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 20.

chapter ii

188

the Statute (and vice-versa, a number of articles in Part Two could easily have been placed in Part Three), and in fact, their placement was often debated.863 Moreover, these principles were codified despite fears that the detailed General Principles in the Statute would serve to stultify the natural progress of international criminal law. As such, the articles are often tightly constructed so as not to influence general international law. The decision, nonetheless, to include a separate section on principles of criminal law indicates the strength of the drafters’ desire to specify their guiding principles while embarking on the ambitious project of building the newest and biggest institution of international criminal law. 4.1

Nullum Crimen Sine Lege

Literally translated “no crime without law,” Article 22, the first of three articles on legality in the Statute, outlines the principles by which a person can be held criminally responsible by the Court. It forbids retroactive application of criminal law;864 it forbids the extension by analogy of the definition of crimes (though to a degree, of course, analogy as a tool in interpretation is always used by judges), requires that definitions of crimes be strictly construed;865 and requires that in an ambiguous case, the interpretation used by the judges shall be the one most favorable to the person being investigated or prosecuted.866 This principle is ostensibly applicable only to crimes listed in Article 5 to 8 of the Statute, but not to Article 70 on offences against the administration of justice,867 nor to treaty crimes.868 The princi-

863 For instance, there was a debate on whether to merge Article 24 on non-retroactivity ratione personae and Article 11 on Jurisdiction ratione temporis, or delete one or the other. Likewise, Article 66 on presumption of innocence, Article 20 on ne bis in idem and Article 21 on applicable law were all originally assigned to the working group on the general principles of criminal law, and then moved to their present location in the Statute; see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 197 and 213. 864 Under Article 22(1) of the Rome Statute: “A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.” 865 According to Article 22(2), Rome Statute: “The definition of a crime shall be strictly construed and shall not be extended by analogy.” Susan Lamb (Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law, in THE ROME STATUTE OF THE ICC, above note 679, at 753), writes that this Article does not prohibit all use of analogy, as it “remains a valid and indeed necessary tool with which to construe the meaning of the Statute.” 866 Article 22(2) of the Rome Statute. “In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted, or convicted.” 867 So maintains Bruce Broomhall, Nullum crimen sine lege, in COMMENTARY ON THE ROME STATUTE, above note 7, at 452. 868 See ibid., at 461.

jurisdiction, admissibility, applicable law

189

ple of non-retroactivity means that the conduct (both criminal acts and omissions) had to have been considered a crime according to the ICC— even if it were a permitted act under the perpetrator’s national law.869 The principles listed under Article 22, are included in the majority of national provisions of criminal law, and are currently generally accepted in international law870 (whether the Nuremberg, the Tokyo, and the Pinochet trials violated the principle of non-retroactivity is still a hotly debated issue).871 The last paragraph of Article 22 makes it clear that this principle is meant solely for the purposes of the ICC, and does not intend to limit international law. Nonetheless, this principle was deemed important, as it allows for greater certainty in the face of the ICC, for both individuals and states are meant to be fully aware of what constitutes a crime. The United states even used this principle as their rationale for requesting a drafting of the Elements of Crime, to “give teeth” to the principle of nullum crimen.872 Only when its subjects have the ability to know the law in advance can a legal system fulfill its function of deterrence. In relation to the ICC Statute, this principle provides states with the certainty that they have precise knowledge of the commitments they have assumed.873 However, as the codifications of definitions of international crimes remains in its relatively early stages, and, despite best efforts, even the Rome Statute’s definitions remain open to much interpretation, it will be seen whether this principle 869 This is the result of Article 33, “Superior Orders and Prescription of Law”, which indicates that even a person following a legal order of a national government can be prosecuted unless the individual did not know that the order was unlawful and the order was not manifestly unlawful. See Susan Lamb, Nullum Crimen, Nulla Poena sine Lege in Inter-national Criminal Law, in THE ROME STATUTE OF THE ICC, above note 865, at 747. 870 This principle has been codified in the Universal Declaration of Human Rights, Article 11(2) stating: “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”. Under Article 26 of the European Convention of Human Rights, and Article 7 of the American Declaration of the Rights and Duties of Man, “Every person accused of an offense has the right to be . . . tried by courts previously established in accordance with pre-existing laws . . .”. 871 See above at 15–16 on the Nuremberg and Tokyo trials. For the Pinochet case, see Mary Margaret Penrose, It’s Good to Be the King!: Prosecuting Heads of State and Former Heads of State Under International Law, 39 Columbia Journal of Transnational Law (2000), at 206. See also Paust, Jordan, Conceptualizing Violence: Present and Future Developments in International Law: Panel II: Adjudicating Violence: Problems Confronting International Law and Policy on War Crimes and Crimes Against Humanity: It’s No Defence: Nullum Crimen, International Crime and the Gingerbread Man, 60 Albany Law Review (March 1997), 664–671. 872 See the Proposal Submitted by the United States of America: Elements of Offences for the International Criminal Court, UN Doc. A/AC.249/1998/DP.11. 873 Broomhall, Bruce (Nullum Crimen sine Lege, in COMMENTARY ON THE ROME STATUTE, above note 7, at 450–451), discusses these four purposes of this principle.

chapter ii

190

will indeed serve to constrain the ICC in its future judgements or whether the Court will re-interpret and re-define the crimes over the course of the trials.874 4.2

Nulla Poena Sine Lege

“No punishment without law” is the counterpart to “no crime without law.” Article 23 of the Rome Statute states that “A person convicted by the Court may be punished only in accordance with this Statute,” and is the second of three articles on the legality in the Statute. Detailed penalties are not necessary for the fulfillment of this article; the existence of Article 77 on “Applicable Penalties” is sufficient to satisfy the requirement of a pre-existing punishment. As the penalties therein—imprisonment for up to thirty years, life imprisonment (when justified by the gravity of crime), fines, or forfeiture of assets—are fairly broad (and moreover, previous international law has recognized even the death penalty as an appropriate punishment),875 the principle of nulla poena sine lege should pose no difficulty for the ICC when sentencing criminals.876 Potentially, perhaps, this principle

874 For a brief summary of the contentious issues during drafting, see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 194–195. For the historical development of this principle in national and international law systems, see Bruce Broomhall, Nullum Crimen sine Lege, in COMMENTARY ON THE ROME STATUTE, above note 7, at 453–455. For a clause-by-clause analysis, see ibid. at 455–460. For the historical development of this principle and its sources in customary international law, see Susan Lamb, Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law, in THE ROME STATUTE OF THE ICC, above note 679, at 735–741 and 746–754. For its development in international law see also Rupa Bhattacharyya, Establishing a Rule-of-Law International Criminal Justice System, 31 Texas International Law Journal (Winter 1996), at 64–72. Stéphane Bourgon, ( Jurisdiction Ratione Temporis, in THE ROME STATUTE OF THE ICC, above note 679, at 550), writes that it may actually be possible for State Parties to agree to grant the ICC jurisdiction over specific crimes committed before the entry into force of the Statute for their citizens, without violating this principle. The same author points out that citizens of states which have not accepted the jurisdiction of the Court may be prosecuted, despite the fact that it seems to contradict this principle, because of the power of the Security Council (at 552–3). As regards historical development of the concept of legality, see Cherif Bassouini, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Virginia Journal of International Law Association (Fall 2001), 81–144. For one example of the fears raised by this article, see Mohamed Badar, From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 San Diego International Law Journal (2004), 73–143. 875 For a discussion on the ICC’s relationship to the death penalty, see William A. Schabas, Conceptualizing Violence: Present and Future Developments in International Law: Panel II: Adjudicating violence: Problems Confronting International Law and Policy on War Crimes and Crimes Against Humanity: War Crimes, Crimes Against Humanity and the Death Penalty, 60 Albany Law Review (1997), 733–770. 876 On the other hand, Edward M. Wise argues (The International Criminal Court: A Budget of Paradoxes, 8 Tulane Journal of International and Comparative Law (Spring 2000), at 276–277), that “the practice of giving judges full discretion to impose any penalty the law allows for all offenses within their jurisdiction is precisely the sort of situation that the nulla

jurisdiction, admissibility, applicable law

191

will prevent the ICC from using civil measures, such as deprivation of the right to vote, as penalties.877 4.3

Non-Retroactivity

Article 23 constitutes the third part of the principle of legality, and states that “no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the State.” Any action (or omission) that would constitute a crime may be tried by the Court only if it was committed after the entry into force of the Statute on 1 July 2002. Together with the requirements of nullum crimen and nulla poena sine lege, this article ensures that a person will only be prosecuted for acts which were, at the time of the their commission, clearly a criminal offense.878 4.4

Exclusion of Jurisdiction Over Persons Under Eighteen

Originally titled the “age of responsibility,” Article 26 provides that “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.” Although the various national laws of the state parties deem a person to be an adult anywhere from seven to twenty-one years of age, and though the Statute’s prohibition on conscripting “child” soldiers relates to children under fifteen years of age,879 nevertheless, for purposes of the International Criminal Court, the compromise age of jurisdiction was determined at 18. To placate objecting states, the article was couched in terms of “excluding jurisdiction,” instead of in terms of personal responsibility, in an attempt to make clear that the exclusion of jurisdiction by the ICC should in no way reflect upon the national ages of responsibility; offenses by those under 18, if deemed

poena principle seems to be meant to preclude.” This Article, offers a historical account of the principle of legality and its purpose (at 261–281). 877 See William A. Schabas, Nulla poena sine lege, in COMMENTARY ON THE ROME STATUTE, above note 7, at 463–466 for a brief discussion on this principle. For the historical development of this principle and its sources in customary international law, see Susan Lamb, Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law, in THE ROME STATUTE OF THE ICC, above note 679, at 756–765. For the history as to the placement of this principle, see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 195–196. 878 See Raul Pangalanga, Non-retroactivity ratione personae, in COMMENTARY ON THE ROME STATUTE, above note 7, at 467–473 for the history of this principle in international law and a brief discussion of the article itself see ibid., at 471 he also discusses the ambiguities that may arise from determining the moment of criminal “conduct.” For the drafting debates on wording and placement, see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 196–197. 879 Article 8(2) of the Rome Statute.

192

chapter ii

adults by the law of their state, are certainly not excused by this article (except, obviously, in the case where a person under fifteen—even if legally able in his or her country—was conscripted illegally, thus constituting a war crime).880 4.5

Non-applicability of Statute of Limitations

Despite the fact that most countries allow for a statute of limitations even for the most serious of crimes, Article 29 of the Rome Statute maintains that “the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.” Almost no discussion was necessary to arrive at this article.881 However, the broad phrasing of Article 29 may raise two interesting problems: the first, a problem of complementarity when a state maintains a statute of limitations and thus does not prosecute an alleged criminal, and second, it may indicate that states Parties’ laws on statutory limitations are in fact illegal, and states should be required to revise their own legislation to be in line with their responsibility to the ICC. However, since these issues were not raised during drafting or after, these would appear to be more theoretical possibilities than practical problems.882 On the contrary, as a result of this article, perpetrators of grave crimes who may otherwise have gone free will be tried and brought to justice. 4.6

Individual Criminal Responsibility

Due to the seriousness of the crimes under the jurisdiction of the ICC, and the fact that most of these crimes are perpetrated in the context of wide-

880 Matthew Happold (Excluding Children From Refugee Status: Child Soldiers and Article 1F of the Refugee Convention, 17 American University International Law Review (2002), 1131–1176), writes that this Article is “procedural rather than substantive in nature” (at 1154) in his discussion on the relationship between the age of responsibility and child soldiers. For a general overview of the drafting discussions and rejected proposals, see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 200–202. See also Roger S. Clark, and Otto Triffterer, Exclusion of Jurisdiction over persons under Eighteen, in COMMENTARY ON THE ROME STATUTE, above note 7, at 493–499. See also Micaela Frulli, Jursidiction Ratione personae, in THE ROME STATUTE OF THE ICC, above note 679, at 533–535. 881 See Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 204–205. 882 See Christine Van den Wyngaert and John Dugard, Non-Applicability of Statute of Limitations, in THE ROME STATE OF THE ICC, above note 679, at 873–888, for a comparison of this principle in international law and in various national laws. See also William A Schabas, Non-applicability of Statute of Limitations, in COMMENTARY ON THE ROME STATUTE, above note 7, at 523–526. See also Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Michigan Journal of International Law (Summer 2002), at 953–955.

jurisdiction, admissibility, applicable law

193

spread violence, it is extremely important that the Statute specifies the degree to which a person had to have been connected with the final criminal act to be held criminally responsible. Together with Articles 27 and 28 on the responsibility of those in positions of power, and Articles 30 and 31 on the degree of knowledge required by the perpetrator, Article 25, “Individual Criminal Responsibility,” lists clear guidelines for the strength of the connection necessary for an individual to be tried for the criminal act.883 Thus Article 25 states that a “natural” person (not a corporate body) can be held criminally responsible for an act committed individually; jointly with another person; through another person; or orders, solicits or induces the commission of the crime.884 Moreover, one who “abets or otherwise assists” in the commission or attempted commission of a crime, in order to facilitate the commission of the crime, is criminally responsible according to Article 25.885 And lastly, the Statute states even more broadly that one is held responsible if one “in any other way” contributes to the commission

883 See Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 198–200 for the difficulties in drafting this article. For a comparison with national and customary international law, see Albin Eser, Individual Criminal Responsibility, in THE ROME STATUTE OF THE ICC, above note 679, at 774–777 and 781–788. 884 The ICTY included this principle in shortened form, in Article 7(1): “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” Under the ICTR Statute (Article 6(1)): “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.” Kai Ambos (Individual Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 479–480), explains that “as an individual” means direct perpetration; “jointly with another . . . person” is in a situation where there was a division of labor between the parties; “through another person” means that the individual has some sort of tight control over the direct perpetrator, much like in the case of command responsibility—even when the perpetrator is not criminally responsible for some reason; “ordering” is also in a case of superior-subordinate relationship, similar to perpetration through means and to command responsibility; “solicits” means to “command, encourage, request, or incite another person to engage in specific conduct” (480); “induce” means to influence, whether physically or psychologically. Albin Eser (Individual Criminal Responsibility in THE ROME STATUTE OF THE ICC, above note 679, at 789–809) offers fairly similar definitions to Ambos, albeith with a few divergent explanations. As is fairly obvious, these categories overlap and may not have precise definitions, and as such, it will probably be left to the discretion of the judges to determine whether an action falls under one of these categories. 885 Aiding and abetting is the lowest form of complicity, which includes any form of assistance, physical or psychological, active or passive. The individual does not have to be present at the crime, nor does the act have to be indispensable in the commission of the crime. He or she does, however, have to know that the act performed will assist in the commission of a crime, see Kai Ambos, Individual Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 481–483.

194

chapter ii

or attempted commission of a crime committed by a group of people acting together. This contribution must have been made intentionally and with the aim of furthering the criminal purpose of the group, and with the knowledge of the intention of the group to commit the specific crime. Section (c) of Article 25 adds that for the specific crime of genocide, the act of inciting others to commit genocide directly—by indicating a specific and immediate criminal action—and publicly—by communicating to a large number of people in whatever forum—is also a criminal offense, even if the genocidal act was not committed or even attempted by the public.886 Attempting any of these crimes by “taking action that commences it execution by means of a substantial step” (section (f )), even if the crime did not take place for some reason, is a criminal act and the individual can be prosecuted by the Court. However, if a person completely and voluntarily abandons his or her effort, or prevents the completion of the crime, the ICC may not try that individual.887 The article on individual criminal responsibility, overall, was an attempt to firmly establish the necessary links between the crime committed and the individual tried; the broad scope of this article, however, has the consequence that such nexuses will probably be decided upon on a case-by-case basis. 4.7

Irrelevance of Official Capacity

Due to the seriousness of the crimes under the jurisdiction of the ICC, and the strong desire to bring the perpetrators of such crime to justice, there was an almost unanimous call that the ICC have jurisdiction over all persons.888 Article 27, which declares that “This Statute shall apply equally to 886 Incitement to genocide is directed toward the general public, as opposed to “soliciting and inducing” which is to an individual; see ibid., at 486–488. Although, Per Saland (International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 200) mentions that in Arabic the words “incite” and “induce” were actually translated by the same word, which may complicate matters, since incitement was included just in the provision for genocide. For the historical background on this principle, see Ameer F. Gopalani, The International Standard of Direct and Public Incitement to Commit Genocide: An Obstacle to U.S. Ratification of the International Criminal Court Statute? 32 California Western International Law Journal (Fall 2001), at 87–117. 887 Albin Eser (Individual Criminal Responsibility, in THE ROME STATUTE OF THE ICC, above note 679, at 771), comments that the placing of attempt is unusual, as in earlier drafts “attempt” was not connected to the article on “participation.” See ibid., at 807–820 for a detailed discussion on attempt and abandonment, their history and their ramifications. Kai Ambos (Individual Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 488–490) discusses the difficulties in determining the precise “stage” of affairs of an attempted or an abandoned crime. 888 Under the Statute of the ICTY, Article 7(2): “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” The ICTR Statute, Article 6(2) contains the same clause.

jurisdiction, admissibility, applicable law

195

all persons without any distinction based on official capacity,” was virtually uncontested. No exceptions are to be made, not for a head of state or government, a member of government or parliament, an elected representative, or a government official; nor are any of these individuals entitled to a reduction of their sentence as a result of their office according to this Article. In fact, it may be the case that an individual in a position of power is deemed more criminally responsible by virtue of his office. Also related, Article 27 states that national and international immunities cannot obstruct the Court’s jurisdiction over an individual.889 Since this principle is clearly currently at odds with most national systems of rights for officials in power, it remains to be seen whether the Court will declare, on this basis, a national system inadequate, thus perhaps influencing the workings of the complementarity principle.890 4.8

Responsibility of Commanders and Other Superiors

Not only are those in positions of power not immune to the Court’s jurisdiction, they are also held to an exacting standard of responsibility for the actions of their subordinates. In Article 28, the guidelines for the criminal responsibility of a superior or a military commander are described.891 A

889 Per Saland (International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 202) writes that there may be a contradiction between this principle and Article 98(1) on cooperation with respect to waiver of immunity. For the historical background and clause-by-clause analysis of this principle, see Otto Triffterer, Article 27: Irrelevance of Official Capacity, in COMMENTARY ON THE ROME STATUTE, above note 7, at 501–514. He also deals with the connection to Article 98 at 513. For a historical survey of this principle, see Paola Gaeta, Official Capacity and Immunities, in THE ROME STATUTE OF THE ICC, above note 679, at 975–1001; for various ways to reconcile this Article with Article 98(1), see ibid., 992–995; for the usage of this principle in the ICTY and ICTR, see ibid., at 989. 890 For a discussion on the impact of complementarity on national legislation on immunities, see ibid., at 996–1000. 891 The ICTY Statute included this principle under Article 7(3), 3. “The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” The ICTR Statute includes the same phrase in Article 6(3). For the development of this principle in international law, see Kai Ambos, Superior Responsibility, in THE ROME STATUTE OF THE ICC, above note 679, at 824–848. See also Matthew Lippman, Humanitarian Law: The Uncertain Contours of Command Responsibility, 9 Tulsa Journal of Comparative and International Law (2001), at 1–93 for the historical development of this principle and the issues still to be determined. For a discussion on discrepancies between municipal and international criminal law, see Mirjan Damaska, The Shadow Side of Command Responsibility, 49 American Journal of Comparative Law (Summer 2001), 455–496. For a discussion of the legal effects of this principle in the case of Ariel Sharon’s involvement at Sabra and Shatila, see Yuval Shany and Keren R. Michaeli, The Case Against Ariel Sharon: Revisiting the Doctrine

196

chapter ii

military commander (either an official commander or an individual “effectively” acting as a military commander) is responsible for crimes committed by the forces under his command or authority and under his control if he or she knew or should have know that they were to commit the crime, and failed to take reasonable and necessary measures to prevent the crime or failed to submit the matter to competent authorities for investigation; the crime is a “result” of the commander’s failure to exercise control properly over the forces. To be held responsible, the Court will have to be convinced that the military commander has either legal or effective control over his subordinates (whether direct or via intermediaries); that the commander “knew” or “should have known” of the crime, which can be determined by direct or circumstantial means; and that the commander did not act to either prevent or report the crime in good faith, in other words, did not take any actions which he thought would be effective in stopping the criminal offense. Any individual in a superior/subordinate relationship, even not in a military or armed context, is also to be held criminally responsible for the crimes committed by a subordinate. This category of superiors may include political leaders, business leaders, senior civil servants, etc.—anybody who, legally or effectively, has the ability to order and control the actions of the subordinates. A superior who knew about, or consciously disregarded information about, the intended crime, and had effective responsibility and control over the matter, and (like the military commander) failed to take all necessary and reasonable measures to prevent the crime or submit the matter to competent authorities, can be held criminally liable by the ICC.892 It is important to note that a civil superior and a military commander have different requirements for the degree of knowledge necessary to be a criminal act—the military commander is liable even if he “should ” have known about the crime.893 Like

of Command Responsibility, 34 New York University Journal of International Law and Politics (Summer 2002), 816–843. For a discussion on command responsibility specifically for war crimes, see Andrew Mitchell, Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes, 22 Sydney Law Review (September 2000), 381. 892 For more details on the definitions of each clause, see William J. Fenrick, Responsibility of Commanders and other Superiors, in COMMENTARY ON THE ROME STATUTE at 515–522. See also Kai Ambos, Superior Responsibility, in THE ROME STATUTE OF THE ICC, above note 679, 848–870, especially for the legal and theoretical gaps in this principle; Ilias Bantekas, The Contemporary Law of Superior Responsibility, 93 AJIL ( July 1999), 573. On the defence of superior orders, see Geert-Jan Alexander Knoops, DEFENCES IN INTERNATIONAL CRIMINAL LAW, International and Contemporary Criminal Law Series, Transnational Publishers (2001), at 41–52. See also Prosecutor v. Ntagerura and Others, ICTR-99-46-T, Judgement and Sentence, 25 February 2004; Prosecutor v. Mejakic and Others, Case No. IT-02-65-PT Decision on Zeljko Mejakic Preliminary Motion on the Form of the Indictment, 14 November 2003. 893 See Greg Vetter, Command Responsibility of Non-Military Superiors in the International Criminal

jurisdiction, admissibility, applicable law

197

the principle of individual responsibility, this Article delineates a fairly broad liability for commanders and superiors, in part because of the vague and flexible criterion listed in Article 28. 4.9

Superior Orders and Prescription of Law

Just as commanders and superiors have certain responsibilities, so too do subordinates. And while a commander may be responsible for the actions of his or her underlings, an individual in a subordinate position cannot evade criminal responsibility by virtue of his or her subordinate position.894 Therefore, Article 33 of the Statute lays out the general principle that one who commits a crime “pursuant to an order of a Government or a superior”895 of any kind will still be criminally responsible for that act. An

Court, 25 Yale Journal of International Law (Winter 2000), at 89–143 for the history of command responsibility for civilians, and a discussion on the impact of the lower standards required for a civilian superior on human rights law. 894 The ICTY Statute included this principle in Article 7(3), “The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.” The ICTR Statute included this principle in Article 6(4). See Andreas Zimmerman, Superior Orders, in THE ROME STATUTE OF THE ICC, above note 679, at 958–973 for the history of the principle in international law and the drafting history of this Article. The ICTY and ICTR’s practice on this issue is discussed in ibid., at 964, with the conclusion that there is of yet no authoritative precedent of the ICTY on the matter of superior orders. For a brief history of this principle and a clause-by-clause explanation, see Otto Triffterer, Superior Orders and Prescription of Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 574–588. For the drafting debates, see Per Saland, International Criminal Law Principles in THE MAKING OF THE ROME STATUTE, above note 781, at 210–212, who concludes that “This article is difficult to read and is bound to be debated.” For a detailed description of the development of the principle, see Matthew Lippman, Humanitarian Law: The Development and Scope of the Superior Orders Defence, 20 Penn State International Law Review (Fall 2001) at 153–251. See also James Insco, Defence of Superior Orders Before Military Commissions, 13 Duke Journal of Comparative & International Law (Spring 2003) at 389–418, who argues that superior orders, contrary to the Rome Statute, should be accepted as a legitimate defence. For a compilation of case studies on superior orders as a defence in international law, see Jordan J. Paust, M. Cherif Bassiouni, Sharon A. Williams, Michael Scharf, Jimmy Gurulé, & Bruce Zagaris eds., INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS, Carolina Academic Press (hereinafter “ICL: CASES AND MATERIALS”) (1996) at 1361–1383; Requel Cross, The Relevance of the Eichmann, Barbie and Finta Trials for the ICTR, Memorandum for the Office of the Prosecutor, Case Western Reserve University School of Law, International War Crimes Project, International Criminal Tribunal for Rwanda (Spring 2003), at http://www.nesl.edu/center/wcmemos; The Attorney General v. Adolf Eichmann, Criminal Case 40/61, District Court of Jerusalem. 895 For a debate as to whether orders from a private individual or organization will fall under this category, see Andreas Zimmerman, Superior Orders, in THE ROME STATUTE OF THE ICC, above note 679, at 969 versus Otto Triffterer, Superior Orders and Prescription of the Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 584.

198

chapter ii

exception will be made only if the individual was legally obligated to obey those orders, did not know that the order was unlawful, and that the order was not “manifestly unlawful,” meaning that an ordinary person would not know that this act was illegal under international law. The Article concludes with the clause that orders to commit genocide or crimes against humanity (war crimes are surprisingly not included) are “manifestly unlawful.” Once more, the principle of superior orders builds upon the principle of individual criminal responsibility to create a system of criminal law wherein most healthy, autonomous individuals will be deemed responsible for committing the heinous crimes under the jurisdiction of the ICC—even when one is in a situation where, socially and psychologically, it may be difficult to disobey superior orders. As a result of the thorny legal and moral issues involved in this principle, it is possible, however, that superior orders will constitute a factor in reducing punishments for subordinates. 4.10

Grounds Excluding Criminal Responsibility

Although many of the Statute’s articles on individual criminal responsibility are meant to ensure that criminals are brought to justice, the Statute still recognizes certain defences as valid. Article 31 lists four such defences: mental disease, intoxication, self-defence, and duress. In each of these cases, and likewise in a few other cases—abandonment, age restrictions, mistake of fact, and superior orders—the individual who committed the act will not be held criminally responsible. Mental illness which “destroys” the individual’s capacity to appreciate the unlawfulness of the conduct, or the capacity to control the conduct, is the first, and least debated grounds for excluding responsibility.896 Next, intoxication which similarly destroys the individual’s capacity to appreciate the unlawfulness of the conduct, or the capacity to control the conduct, can be used as a legitimate defence, unless the individual became “voluntarily intoxicated” knowingly or recklessly took a risk that he might commit a crime under the ICC’s jurisdiction. The most controversial defence, self-defence, was finally formulated in a manner that excludes responsibility if there was danger to the individual or his or her essential property from unlawful force, and if the act committed was a “proportionate” response to the danger.897 It was also necessary to 896 On the issue of mental illness as a defence in international law, see Peter Krug, The Emerging Mental Incapacity Defence in International Criminal Law: Some Initial Questions of Implementation, 94 AJIL (April 2000), 317–335. 897 For a compilation of case studies on self-defence as a defence in international law, see Jordan Paust and M. Cherif Bassiouni et al. INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS, above note 669, at 1389–1390.

jurisdiction, admissibility, applicable law

199

include that a military defensive operation does not constitute grounds for self-defence; this defence is meant solely for individuals. Lastly, the Statute accepts duress as a legitimate defence against criminal responsibility, providing that the individual was under duress, threatened by either imminent death or serious bodily harm by another person or by external circumstances, if the act was necessary and reasonable to counteract the threat, and was not intended to cause greater harm than that avoided.898 Despite the fact that this Article remains vague and the requirements for defence still require much clarification, the principles laid down here do offer a broad guideline for the Court to apply when necessary.899 4.11

Mistake of Fact or Mistake of Law

An individual may be mistaken about two different questions: the facts of the situation at hand and the laws concerning the action. Article 32 of the Rome Statute deals with both types of mistakes, to decide whether they constitute grounds for excluding criminal responsibility, along with mental illness, intoxication, self-defence and duress. It states that a mistake of fact can be included in that list “only if it negates the mental element” required of and individual to be responsible for that crime. A mistake of fact would include mistakes relating to elements that can be noticed by the senses; if a person is mistaken about a fact then he or she cannot have the correct intent necessary for the specific crime (unless the mistake is due to negligence, and for some crimes, negligence is enough for which one can be prosecuted). A mistake in law, however, meaning that the individual erroneously

898 On the subject of duress as a defence in case of murder, and the relationship between duress and superior orders, see Valerie Epps, The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Soldier’s Obligation to Die when Ordered to Shoot Civilians or Face Death Himself; 37 New England Law Review (Summer 2003) 987–1013. See also Andrew Bowers, A Concession to Humanity in the Killing of Innocents— Validating the Defences of Duress and Superior Orders in International Law; 15 Windsor Review of Legal and Social Issues (March 2003), 31–72. For a compilation of case studies on duress as a defence in international law, see Jordan Paust and M. Cherif Bassiouni et al,. ICL: CASES AND MATERIALS, above note 895, at 1384–1389. On the question when defences have to be raised, see Prosecutor v. Aleksovski, ICTY Case No.: IT-95-14/1-A, Judgement, 24 March 2000, emphasizing that defences have to be raised during the trial, and where required by the Rules of Procedure and Evidence, before the trial (para. 51). 899 A clause-by-clause explanation can be found in Albin Eser, Grounds for Excluding Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE, above note 7, at 538–554. For the difficult drafting issues, see Per Saland, International Criminal Law Principles, THE MAKING OF THE ROME STATUTE, above note 781, at 206–210. For a historical background and a comparison to other legal systems, see Kai Ambos, Other Grounds For Excluding Criminal Responsibility, in THE ROME STATUTE OF THE ICC, above note 679, 1003–1004 and 1027–1041 for the explanation of this Article.

chapter ii

200

thought that the conduct was permitted, does not constitute a valid defence, and the individual can be prosecuted. There are certain crimes, though, that do require knowledge of the law. If the mistake of law “negates the mental element required by such a crime,” then the mistake of law may be a legitimate ground for exclusion of jurisdiction.900 This Article in many ways overlaps with the requirements for mental element, to be discussed presently, as the grounds for exclusion of responsibility by mistake of fact or law are actually only if the mistake negates the required mental element. 4.12

Mental Element

Article 30 of the Rome Statute asserts that an individual will be criminally responsible only if he or she had “intent and knowledge.” Considering that these are ambiguous terms, the Article itself includes a definition of these terms. Intent indicates that the person “means to engage” in the conduct, and “means to cause that consequence” or at least is aware that such is the ordinary consequence of his or her act. Knowledge means “awareness” that the circumstance exists or that the consequence will normally occur. However, this definition does not apply for all crimes, as some crimes, within their definition, contain specific intent and knowledge requirements.901 The drafting of the Elements of Crime was, inevitably, intertwined with the general principles of criminal law provided in Part Three of the Statute. The Articles on the mental element, mistake of fact and mistake of law, among others, sometimes overlap with the definitions of mental elements of specific crimes which the Elements of Crime purports to clarify. Thus an explanation of the connection between the general principles and the Elements of Crime was indispensable for the proper working of the Court. Given the large number of overlaps and difficult issues to resolve, it was

900 For a clause-by-clause explanation, see Otto Triffterer, Mistake of Fact or Mistake of Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 555–571. For the historical background and a detailed explanation of the clauses of this article, see Albin Eser, Mental Elements—Mistake of Fact and Mistake of Law, in THE ROME STATUTE OF THE ICC above note 679, at 896–898, 921–925, and especially 934–946. For the drafting debates, see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 210. For a compilation of case studies on mistake of fact as a defence in international law, see Jordan Paust, and M. Cherif Bassiouni et al. ICL: CASES AND MATERIALS, above note 834, at 1390–1391. 901 For a clause-by-clause explanation, see Donald K. Piragoff, Mental Element, in COMMENTARY ON THE ROME STATUTE, above note 679, at 527–535. For the historical background, a detailed explanation of the clauses of this article, and its relationship to other terms describing mental states in the Rome Statute, see Albin Eser, Mental Elements— Mistake of Fact and Mistake of Law, in THE ROME STATUTE OF THE ICC, above note 664, at 890–933. For the drafting debates, see Per Saland, International Criminal Law Principles, in THE MAKING OF THE ROME STATUTE, above note 781, at 205–206.

jurisdiction, admissibility, applicable law

201

decided that a “General Introduction to the Elements of Crime” would be included, with the specific intent of introducing consistency between the two documents. This General Introduction states that first, the Rome Statute—including the General Principles—are applicable to the Elements of Crimes as well. Likewise, the grounds for excluding criminal responsibility set out in the Principles hold true for all crimes, and the Elements of Crimes will not repeat those grounds. Moreover, it rules that Article 30, on mental element, stands, and the requirements of intent and knowledge in that Article will be the default rule to apply, unless the Elements of Crimes or the Statute itself explicitly state a different requirement of intent and knowledge to apply.902

902

For the drafting history see Maria Kelt and Herman von Hebel, General Principles of Criminal Law and the Elements of Crime, in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 19–40. At 30, the authors discuss whether exceptions to default Article 30 can stem from the Elements of Crimes as well, or only from the Statute itself.

CHAPTER III

INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

During the past decade, the international criminal justice system has expanded in an unprecedented manner, in a large part due to the establishment of the ICTY, the ICTR, and the ICC thereafter. The ad hoc Tribunals were established by the Security Council and the obligation erga omnes of Article 29 of the ICTY Statute and Article 28 of the ICTR Statute for states to assist and cooperate with the Tribunals is of a different legal nature than the obligations provided on the same subject by the Rome Statute based on the agreement of states. A brief comparison with the ad hoc Tribunals shows that Part Nine of the Rome Statute on international cooperation and judicial assistance is innovative. So innovative, that many doubt whether this new international mechanism can operate effectively—and ensure compliance—without any specific organ of enforcement.903 The jurisdiction of the ICC reaches far beyond the ad hoc Tribunals for Yugoslavia and Rwanda, nevertheless, the functioning of the Court depends essentially on international cooperation. In the absence of cooperation, critical procedures such as arrests, surrenders, investigations of witnesses and victims, and the gathering of information, documents and evidence, are virtually impossible to implement.904 It is thus not surprising that the drafting of this section of the statute had been most controversial, as it has the potential to encroach upon the sovereignty of states members. The formula finally adopted in the Rome Statute relies on a combination of horizontal and vertical systems of cooperation,905 based on the agreement of the states parties.

903

Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1607. 904 Giuseppe Palmisano, The ICC and Third States, in ESSAYS ON THE ROME STATUTE, above note 600, at 402–403. 905 Claus Kress, Kimberly Prost, Angelika Schlunck, Peter Wilkitzki, International Cooperation and Judicial Assistance: Preliminary Remarks in COMMENTARY ON THE ROME STATUTE, above note 7, at 1047. For a discussion of how “vertical” the ICC cooperation regime really is in comparison to the ICTY and ICTR, see Goran Sluiter, The Surrender of War Criminals to the International Criminal Court, 25 Loyola of Los Angeles International & Comparative Law Review, at 611–612. See also Jörg Meßner, DIE ZUSAMMENARBEIT MIT DEM INTERNATIONALEN STRAFGERICHTSHOF NACH DEM RÖMISCHEN STATUT, C.H. Beck; Schulthess (2003).

204

chapter iii

In the Rome Statute, international cooperation and judicial assistance can be divided into three main parts: the nature of international cooperation, provisions concerning the arrest and surrender of suspects and accused persons, and other forms of cooperation.906 In each of these, the Statute includes some procedural elements that should ensure compliance, thus strengthening its vertical system of cooperation: such as, for example, a duty to adhere internal legislation of the states parties to the obligations provided by Article 88—therefore making it superior to internal legislation. However, the sanction for not doing so is limited to the referral of the matter to the Assembly of States Parties, and under specific conditions, to the Security Council. The Rome Statute includes procedures for the state to retain control, thus demonstrating a horizontal system: in the case of a threat to state security, pre-existing international obligations, third party property, etc. vested in it under international law.907 From this perspective, the Statute reflects the larger compromise which states had to accept in creating the ICC: the difficult compromise between protecting national sovereignty and effecting international justice. According to Patricia A. McKeon, the selection of authority vested in the hands of the Court is such, whereby only (some) offences which trouble the entire world, regardless of issues of sovereignty have been picked for the purposes of the Court. In parallel, a serious effort was made to avoid direct encroachments on state sovereignty, which is considered to be “sacred” in international law.908 This leads to the conclusion that the rules on jurisdiction of the Court will have to be applied carefully in order not to undermine the necessary cooperation of the states parties. Any challenge to the jurisdiction of the Court must be made according to Article 58 of the Rules of Procedure, at least as far as states parties are concerned.

1. The Nature of International Cooperation Part Nine of the Rome Statute elaborates on the obligations of states parties in order to create a framework as detailed as possible. Furthermore, it deals both directly and indirectly with third states, as well as with other international entities and their relation to the Court. 906 Claus Kress, Kimberly Prost, Angelika Schlunck, Peter Wilkitzki, International Cooperation and Judicial Assistance: Preliminary Remarks, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1049. 907 Article 73, 93(9)(b) of the Rome Statute. 908 Patricia A. McKeon, Note: An International Criminal Court: Balancing the Principle of Sovereignty against the Demands for International Justice, 12 St. John’s J.L. Comm. (1997), at 544.

international cooperation and judicial assistance 1.1

205

The Obligation to Cooperate

Article 86 of the Rome Statute distinguishes between states parties to the Rome Statute and third states. The obligation to cooperate applies only to state parties; therefore, states not parties to the Statute are under no such obligation. States parties shall, in accordance with the provisions of this statute, cooperate fully with the Court in the investigation and prosecution of crimes within the jurisdiction of the Court”.909 Article 86 contains a general obligation to cooperate with the Court, the obligation is based on a Treaty providing for a duty to cooperate.910 However, the mentioning of “states,” and no other entities, is naturally a limiting aspect of this Article. Individual state officials or individuals acting in a private manner are thereby not included in this provision.911 The cooperation of third states may be obtained by an ad hoc agreement with the Court, in which they accept the jurisdiction of the Court for a specific purpose.912 In such a case, the accepting states empower the Court to carry out not only internal activities but external ones as well.913 The general obligation to comply with requests of the Court, whether addressed to a state party or to a state not party, applies when the matter is referred to the Court by the Security Council, by a state, or initiated by the Prosecutor proprio motu. As far as states parties are concerned, the extent of cooperation with the Court does not seem to be left to the discretion of states parties, as the Rome Statute requires full cooperation with the Court;914 to some extent, the state remains bound to it even in case of withdrawal.915

909

Article 86 of the Rome Statute. The parties to the Rome Statute are under the obligation to do so, given the unique nature of the Court. See Bert Swart, General Problems, in THE ROME STATUTE OF THE ICC, above note 669, at 1595; Tatjana Maikowski, STAATLICHE KOOPERATIONSPFLICHTEN GEGENÜBER DEM INTERNATIONALEN STRAFGERICHTSHOF, Berliner Wissenschafs-Verlag (2002). 911 Claus Kress, General Obligation to Cooperate, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1051. 912 Article 87(5) of the Rome Statute. Several bilateral non-surrender agreements were signed by states which had not ratified the Rome Statute thereby preventing cooperation with the Court; on this issue see Chet. J. Tan Jr., The Proliferation of Bilateral Non-Surrender Agreements Among Non-Ratifiers of the Rome Statute of the International Criminal Court, 19 Mich. Law Rev. (2004), at 1115. 913 Guiseppe Palmisano, The ICC and Third States, in ESSAYS ON THE ROME STATUTE, above note 600, at 406. 914 See Article 93(1), as well as Rules 92(3), 96, 116, 167, 176, 194, 217, 218. The duty to cooperate stretches throughout the entire procedure, and is so detailed, that even the language of cooperation has been thought of in the Rules (see Rule 180). 915 Article 127(2) of the Rome Statute. 910

206

chapter iii

A case of non-cooperation is to be addressed to the Assembly of States Parties, according to the procedure provided by Article 112(2)(f ) of the Rome Statute. Due the fact that Article 88 obliges states parties to adhere to the Statute by amending their internal law, even a case whereby a state does not cooperate by reasons of its own internal law, can be brought to the Assembly, or to the Security Council. However, the Statute itself envisages instances where a state may delay implementing a request by the Court, or under specific conditions, not cooperate in case of competing requests, when it comes to the rights of third parties, or otherwise a threat to state security.916 It should be stressed that there are very few grounds where a request for cooperation may be deferred by a state. The exceptions to the principle of full cooperation provided in the Rome Statute, might be perceived as undermining the attempt to create a general obligation to cooperate according to Article 86.917 However, pre-existing obligations between states cannot be ignored. Article 86 states that the required cooperation refers to “crimes within the jurisdiction of the Court”. Pursuant to Article 19, only the Court itself can determine its own jurisdiction; in other words, the states cannot assert a challenge to jurisdiction as an excuse to decline a request by the Court, for it has the final word on it.918 In case of states parties, the Court is to “have the authority to make requests”,919 as opposed to “The Court may invite any State not party to this Statute to provide assistance”,920 and “the Court may ask intergovernmental organizations” to cooperate.921 Generally, the obligation to cooperate becomes relevant following a request from the Court addressed to the requested state for assistance in investigation and prosecution, or assistance in the arrest and surrender of an individual, or for other forms of cooperation.922 It is left to the state to decide the precise manner in which it wishes to execute the request pursuant to Articles 70(2) and 109. The free-

916 Article 98(2) requires that the authorization of the sending state be given in case of a waiver of immunity. 917 Frederik Harhoff and Phakiso Mochochoko, International Cooperation and Judicial Assistance, in THE MAKING OF THE ROME STATUTE, above note 781, at 307. 918 Claus Kress, General Obligation to Cooperate, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1054. 919 Article 87(1)(a) of the Rome Statute. 920 Ibid., Article 87(5)(a). 921 Article 87(c) of the Rome Statute. 922 Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1613. An example to that is under a direct warrant, such as in the case of cooperation for the benefit of forfeiture in favor of victims, which might clash with the interests of the applying state, that might itself want to confiscate the relevant properties: Article 57(3)(e).

international cooperation and judicial assistance

207

dom of States is greater for the application of article 70 than for the application of article 109 which only refers to the procedure provided for in national law, thus excluding national laws of a substantive nature. Though all Court requests must be in accordance with the Statute, states cannot refuse assistance arguing non-compliance with the Statute. In such circumstances, states may consult with the Court on the matter.923 The formal aspects of the request for cooperation are discussed in Article 87, which reviews the channels of transmission. It also enables the Court to contact intergovernmental organizations and third states for assistance.924 1.2

Non-Party State Cooperation

As mentioned earlier, non-party states can cooperate with the Court voluntarily. The Statute maintains the right of the Court to invite third states to cooperate, either by accepting jurisdiction concerning a specific crime925 or by an ad hoc agreement. Article 87 (5) addresses non-party states and calls upon them to assist the Court: “The Court may invite any state not party to this statute to provide assistance under this part (part nine) on the basis of an ad hoc arrangement, an agreement with such state or any other appropriate basis”.926

Assisting the Court does not necessarily mean that a third state accepts the jurisdiction of the Court entirely. Further, “any other appropriate basis”927 may ensure non-party states cooperation. This “appropriate” form can be a legal binding arrangement or an informal one, for example, a state’s unilateral offer to assist.928 However, once an agreement or an arrangement is concluded, the third state is under the same obligation to comply with the Court as states parties (taking into consideration the specific understanding between the state and the Court). Similarly, a problem or failure to cooperate is handled via the same channels as would a problem with a state party.929 According to 923

See Articles 89(2, 4), 91(4), as well as Rule 162. Article 87 of the Rome Statute. Also see Claus Kress, Kimberly Prost, Article 87: Requests for Cooperation: General Provisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1056. 925 Non-state parties may accept the jurisdiction of the Court with respect to a specific crime by way of declaration under Article 12(3). 926 Article 87(5) of the Rome Statute. 927 Ibid. 928 See Claus Kress, Kimberly Prost, Requests for Cooperation: General Provisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1062. 929 Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1616. 924

208

chapter iii

Article 87(5)(b), the Court may inform the Assembly of States or the Security Council (if the matter has been referred to the Court by the Council) of non-compliance of a third state which had entered into an agreement or arrangement with the Court.930 1.3

The Cooperation of International Organizations

International organizations constitute their own category under the rules of non-state party cooperation. There are two possible interpretations to their duty to cooperate. The first: cooperation with international organizations must be based on their consent in each individual case. This, however, does not apply to cooperation based upon a decision of the Security Council (under Chapter VII of the UN Charter) or established under customary law.931 Nonetheless: though subjects other than states cannot access the Statute, the Court can request their assistance concerning documents, information or other forms of cooperation, according to Article 87(6).932 When assistance is required, under the previous Article: “The Registrar shall, when necessary, ascertain its designated channel of communication . . .”, pursuant to Rule 177(2).933 The Prosecutor may also approach organs of the United Nations or any reliable source he deems necessary.934

2. Implementation The obligation to cooperate in part nine, as stated earlier, is subject to very few exceptions. Hence, states must legally guarantee their cooperation. Pursuant to Article 88, the states national law must be in line with their requirement to cooperate with the Court. “States parties shall insure that there are procedures available under their national law for all of the forms of cooperation which are specified under this part.”

930

Article 87(5)(b) of the Rome Statute. Claus Kress, Kimberly Prost, Article 87: Requests for Cooperation: General Provisions, COMMENTARY ON THE ROME STATUTE, above note 7, at 1064. 932 Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1617. 933 See Frederik Harhoff and Phakiso Mochochoko, International Cooperation and Judicial Assistance, in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 637. 934 Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1619. 921

international cooperation and judicial assistance

209

This Article refers directly to the sensitive subject of national law. It follows the logical assumption that in order to cooperate with the Court, states must have at their disposal the appropriate means to do so. Articles 89 and 93 both relate to this issue, stating that cooperation should be carried out “in accordance with the provisions of this part and under the procedures of national law”. This delicate phrasing emphasizes the fact that national laws should assist rather than compete with the obligation to cooperate,935 and states may not justify their failure to assist the Court by referring to their national systems. These Articles focus not on the means for cooperation, but on the final result of a request by the Court. A central aspect of implementation is provided for in Article 87. The provisions of this Article refer to channels of communication with the Court, mainly through diplomatic channels. According to Rule 176(2), both the Registrar and the Prosecutor are responsible for receiving information, documents and responses concerning international cooperation and judicial assistance. Though some felt that there should be only one address for handling external relations, namely the Registrar, others claimed that the Prosecutor should be granted sole authority for crimes under his investigation without being subject to the interference of the Registrar, in order to minimize delays. Eventually the latter’s opinion prevailed, and the Rome Statute gives the Prosecutor the right to act independently in receiving and transmitting his own requests. This position is strengthened by Articles 42 and 54 allowing the Prosecutor to approach any state or intergovernmental organization on issues related to an investigation. Furthermore, the Prosecutor is allowed to enter into an agreement with the state or organization in question for the purpose of cooperation. The Registrar is “the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged with receiving requests for cooperation,” i.e. for changes in the designation of channels and language, according to Rule 176(3), which also elaborates upon Rule 180, and obligates the Registrar to notify all relevant states of these changes. By not limiting states to a specific channel, a broader system of communication is created. This system also allows for direct ties between the Court and the states. Another alternative, presented under sub paragraph (b), provides for the services of the Interpol or a regional organization, according to the preference of the state (as long as there is no conflict with sub paragraph (a)). States

935 Kimberly Prost, Availability of Procedures under National Law, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1070.

210

chapter iii

must hand over all relevant information of their national authority in charge of cooperation as provided in Rule 177(1) of the Rules of Procedure and Evidence. As soon as this information reaches the United Nations, the Registrar may request permission from the Secretary General to see it and hand it over to the Prosecutor or the Presidency or both.936 A request, under paragraph 2, as well as any supporting material, should be transmitted in the language of the “requested” state (the state which is being asked to cooperate). After much deliberation as to which side is responsible for translation, a compromise had been reached. When there is a difference in languages, states parties determine the language of the request. They may decide to take responsibility for translation, if it does not present too much of a difficulty. However, when a state is lacking the proper means for translation, or if the translation becomes a burden on the state, it will be left up to the Court to do so.937 Under Rule 178(1), when a state has several official languages, requests may be drafted in any one of them. However, if the state does not specify a language to be used for communications with the Court, the request is to be written in, or accompanied by, a translation of one of the working languages of the Court.938 The same principle applies to non party states pursuant to Rule 179: any changes made in the language or the channels of communication are to be submitted in writing, as soon as possible, to the Registrar. These take effect “at a time agreed between the Court and the State or, in the absence of such an agreement, 45 days after the Court has received the communication and, in all cases, without prejudice to current requests or requests in progress”.939

Confidentiality is another important issue discussed under Article 87(3). As in many multilateral or bilateral treaties, the requested state is obligated to maintain the confidentiality of any request. By addressing the “requested state” and not the “state party”, it seems that the Article refers to non state parties as well, from which the Court may seek assurances in advance.940 Naturally, compliance with a request demands some degree of disclosure. Therefore, under Article 87(3)(2), disclosure is permitted only as necessary for execution.

936

Rule 176(5). Claus Kress, Kimberly Prost, Requests for Cooperation: General Provisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1059. 938 Rule 178(2). 939 Rule 180. 940 Claus Kress, Kimberly Prost, Requests for Cooperation: General Provisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1059. 937

international cooperation and judicial assistance

211

When a request entails the assistance of victims or witnesses, or their families, a certain amount of protection may be required. For this purpose, the Court may take all necessary measures to protect information and individuals. Details concerning the alleged offence may be excluded (unless they are vital to the execution), in order to prevent possible psychological damage to the victim. The Court may also direct the state to handle the information in a specific manner. This applies to all forms of cooperation and to all sides involved: state parties, non-parties, organizations and others.941 The costs for the execution of the requests are generally paid for by the state, except for specific expenditures born by the Court as provided under Article 100. Extraordinary costs pursuant to paragraph (1) (f ) require consultation with the Court, prior to execution (for the Court to be notified and aware of the situation). The costs include those associated with many of the modalities of implementation, such as translation and protection. Unlike previous provisions, this Article addresses only states parties to the Statute, while others will act according to their individual arrangement with the Court.942 Article 87 tends to minimize unnecessary delays which, in some instances may be overcome through direct communication between authorities and the exchange of information. However, the efficiency of these modalities is questionable with regards to the ICC.943

3. Exceptions to the Obligation to Cooperate Though the obligation to cooperate with the Court is stated explicitly in Article 86, there are some exceptions provided for in the Statute itself, relating to both a state party and a state that is not party. The Statute also recognizes the possibility of future difficulties yet to be discovered and therefore a number of more flexible mechanisms are adopted. The most general provision concerning problems of compliance with the Court is to be found in Article 97. This Article ostensibly relates to specific problems that may arise: insufficient information to carry out a request, a person sought who cannot be found, a warrant that contains a wrong name of a person, or an execution of a request that violates previous treaty

941 Ibid., at 1060, Protection of victims and witnesses is also provided for in Article 68, as well as Articles 88(4), 89(3) and 90(8). 942 Kimberly Prost, Angelika Schlunck, Costs, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1144–1145. 943 Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1628.

212

chapter iii

obligations to a third party. Nevertheless, it also provides for a general mechanism of consultation with the Court about any such problem.944 It is fully recognized that on the practical level, an execution may entail many obstacles; therefore there is a need for general guidelines before dealing with each case individually. Though Article 97 refers to a state obligation to consult with the Court, consultation may also take place as a result of a request by the Court.945 Articles 91(4) and 96(3) permit the Court to request consultation “either generally or with respect to a specific matter, regarding any requirements under its (the requested state’s) national law . . . During the consultations, the state party shall advise the Court of the specific requirements of its national law”.

Under Rule 195, applicable only in relation to Article 98(2), even if a state declines the request by the Court, it still is to provide all relevant information which may assist the Court, as would be required of any willing third state. Declining a request by the Court for consultation is possible only under specific circumstances enumerated in Article 93. The first, mentioned in subparagraph (4) and in accordance with Article 72, is when national security may be imperilled. The second is when the request is not listed under paragraph (1), and the law of the state prohibits such assistance. When execution of a request may be in breach of “an existing fundamental legal principle of general application”, the requested state must consult without delay with the Court on the matter. If it is determined that assistance cannot be provided by other means or under certain conditions, the request must be modified “as necessary”.946 In all cases, the state party must consult the Court prior to refusal. Another ground for refusal stems from legal obligations not related to the ICC in instances were the requested state is a party to pre-existing international agreements or undertook specific obligations towards third states. It is a well-known principle that existing obligations cannot be voided by the adoption of conflicting new agreements. Hence, states may be confronted with competing requests to which they are equally obligated. The Court is preferred whenever a request by it is served in parallel to a request 944 Kimberly Prost, Angelika Schlunck, Consultations, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1129. 945 Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1630. 946 Article 93(3) of the Rome Statute. The state must convince the Court that the required assistance entails a breach of a fundamental principle, otherwise it will have to comply with the request. Article 93(3) does not permit denial but obligates consultation, Kimberly Prost, Angelika Schlunck, Other Forms of Cooperation, COMMENTARY ON THE ROME STATUTE, above note 7, at 1104–1105.

international cooperation and judicial assistance

213

by a state member.947 Where a request of the Court relates to matters other that surrender or extradition, and competes with a request from another state, the requested state is expected to meet both requests “if necessary by attaching conditions to one or the other request”.948 A more problematic situation arises when a third state, not obligated to the Court in any way, is competing with it in a specific case. In such a case, it is left up to the discretion of the state to decide which competing request to follow,949 it shall nonetheless, consider several factor when making its decision: the dates of the request,950 whether the requesting state has a direct interest such as whether it has territorial or personal jurisdiction of the person the surrender of which the Court seeks,951 and whether the requesting state is likely to surrender the person to the Court should the requested state.952 If the requests concern the same individual but do not relate to the same offence, then consideration shall be given to the “relative nature and gravity of the conduct in question”, according to Article (90)(7)(b).953 Giving priority to a third state, thereby refusing to assist the Court, is not to be considered a breach if the state first consults with the Court. In the event a request by the Court relates to a situation where a state is requested to surrender a person to the Court after having received an extradition request by another state of the same person and the same conduct for which the Cout requests the surrender, priority has to be given to the request of the Court, where it determined that the case was admissible and the request for extradition was taken into account in the determination.954 Where no such determination was made by the Court, the requested state may continue to handle the extradition request, however’ the person requested is not to be extradited until the Court decided on the inadmissibility of the case.955 Compliance with the request of the Court for either extradition or any other form of cooperation contradicting the requested state’s international obligations, does not, as such, resolve the obligations undertaken by that party under international law.956 947

Article 90(2) of the Rome Statute. Ibid., Article 93(9)(a). 949 Guiseppe Palmisano, The ICC and Third States, in ESSAYS ON THE ROME STATUTE, above note 600, at 407–408. Also see Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1631. 950 Article 90(6)(a) of the Rome Statute. 951 Ibid., Article 90(6)(b). 952 Ibid., Article 90(6)(c). 953 Ibid., Article 90(7)(b). 954 Article 90(2) of the Rome Statute 955 Ibid., Article 90(3). 956 Guiseppe Palmisano, The ICC and Third States, in ESSAYS ON THE ROME STATUTE, above note 600 at 409. 948

214

chapter iii

A member state is obligated, under Articles 73 and 93(9)(b), to present the Court with documents and information entrusted to it by a third state or international organization only if their consent is obtained first. Without such consent, the member state can refuse to comply with the demand by the Court to present information. Moreover, under Article 98(1), the Court cannot proceed with a request for surrender and assistance if this leads to a situation where the requested state will be in conflict with international law concerning immunity of a person or property of a third state, unless consent was obtained first.957 This principle is strengthened by Rule 195(2), which has come to be extremely controversial during the discussions over the Statute and its Rules.958 It has been feared that third states would be able to use this opening to ignore the establishment of the Court, for without their consent the Court might have no bearings on them. Such a situation would damage the entire purpose of the Court and might even limit its jurisdiction. Eventually, a compromise has been reached: the Court is to abstain from pursuing a request which contradicts an international obligation of the requested state (unless the consent of the third state was obtained). According to some scholars, if a waiver of immunity is not received, the requested state should disregard the request by the Court entirely, since it contradicts Article 98. Furthermore, under such circumstances, in which the Court continues to pursue the request, the requested state and the third state may inform the Assembly of States parties of the actions of the Court.959 It should be noted, however, that international immunity is not applicable to crimes within the jurisdiction of the Court. Similarly, claiming immunity on the grounds of official capacity, or based upon national law is not an acceptable challenge to the jurisdiction of the Court. There are essentially two reasons pertaining to the complexities reflected by the Rome Statute on matters of surrender and extradition when compared to the ad hoc Tribunals. Established under Chapter VII of the Charter rather than by consenting states as is the case of the Statute if the ICC, states are obliged to cooperate with the ad hoc Tribunals. Further, their clearly established precedence for the prosecution in matters within their respective jurisdiction forestalled competing requests.960

957 See Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE ICC, above note 669, at 1631. 958 Rule 195(2) in particular. 959 Guiseppe Palmisano, The ICC and Third States, in ESSAYS ON THE ROME STATUTE, above note 600, at 410. 960 See above at 11–12.

international cooperation and judicial assistance

215

4. Measures of Enforcement The Rome Statute does not vest the Court with the power to take enforcement measures against states,961 but largely opted for consultation to resolve the difficulties or failure to execute a request of the Court. When failure by a state party to comply with a request to cooperate prevents the Court from exercising its powers under the Statute, or where the Security Council seized the Court under Chapter VII of the Charter, the Court “may” (but is not obliged to), make a finding and refer the issue to the Assembly of States Parties or to the Security Council.962 In the event of failure to comply with a request of the Court by a state not party to the Rome Statute which entered into an ad hoc arrangement or an agreement to cooperate, the Statute provided a less stringent measure as the Court may so “inform” the Assembly of States Parties or to the Security Council. Enforcement is limited to states which are under prior obligation to the Court, whether conventional or ad hoc. Once the matter is brought before the Security Council, the Council may take the necessary measures pursuant to its mandate under the UN Charter. The enforcement measures available to the Assembly of States Parties are not clear (as is the status of this body itself ). Though Article 112(2)(f ) empowers the Assembly to deal with all forms of non-cooperation, it does not elaborate on the possible solutions open to it. Since there is no explicit reference to this question, general rules on state responsibility may be taken into consideration. The Assembly may condemn the non-cooperative state and demand compliance, or condemn the international wrongful act and, where appropriate, refer to the Security Council where the Court did not refer the matter to it. Ambiguity also exists with regards to state actions against non-compliance. Where the action of either the Assembly or the Council fails to lead the non-cooperating state to do so, the option of a collective response is to be preferred over individual actions against the non-cooperating state. From a perspective of the non-cooperating state, withdrawal from the Rome Statute will not release it from the obligation to cooperate.963

961 On this matter, see Prosecutor v. Blaskic, Subpeona Duces Tecum to the Republic of Croatia and to the Defence Minister Gojko Susak, above note 254; Prosecutor v. Blaskic, Decision on the Objection of Republic of Croatia Subpeona Duces Tecum, above note 255; Prosecutor v. Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, above note 257. 962 Article 87(7) of the Rome Statute. See Dino Rinoldi and Nicoletta Parisi, International Cooperation and Judicial Assistance Between the International Criminal Court and States Parties, in ESSAYS ON THE ROME STATUTE, above note 600, at 376. 963 Article 127(2) of the Rome Statute.

216

chapter iii

The duty to cooperate is one of the central poles of the Court, it is essential to assure its efficient functioning which requires appropriate implementation measures taken by states parties to the Rome Statute in order to guarantee compliance with request for cooperation of the Court. Whether the required cooperation and judicial assistance from states not parties to the Rome Statute will be achieved, will depend not only on the credibility of the ICC, but on the very careful handling of requests and search for cooperation when rights of third states are involved.

CHAPTER IV

THE TRIAL

Articles 62 to 76 of the Rome Statute outline the role of the Court during the trial as well as the basic rights and general principles applicable throughout the course of the trial. In their entirety, they reflect a serious effort to provide a trail procedure that balances between prosecution of indicted persons, the rights of the victims and the rights of the accused to a fair trial.964 After the confirmation of charges, the Presidency constitutes a Trial Chamber, to which it refers the case. The Trial Chamber receives the decision of the Pre-Trial Chamber and the record of the proceedings before the Pre-Trail Chamber.965 The record may be consulted by the Prosecutor, the defence, and the representatives of states when they participate in the proceedings, and by victims or their legal representation when participating in the proceedings pursuant to Rules 89–91. However, this right may be subject to restrictions for reasons pertaining to confidentiality or the protection of national security information.966 A status conference is to be held promptly once the Trial Chamber is constituted in order to set a date for the trial. It is the duty of the Trial Chamber both to notify all sides in the proceedings of this date and any postponements, as well as make this information public.967 Prior to the commencement of the trial, the Trial Chamber may rule on any issue relating to the proceedings. Such issues may be brought by the Prosecutor, the defence, or raised by the Court itself.968 Rule 134 provides for the procedure to follow in case of such requests. They must be in written form and served upon the other party which shall have the opportunity to file a response (unless it is a request for an ex parte procedure). Although not explicitly stated by Rule 134, where an issue is brought by the Court itself, both the Prosecutor and the defence shall have the opportunity to address the Court on the issue.

964 For a clear and concise overview on the history and necessity of fair trial, see Sara Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, above note 664, 535–555. 965 Rule 130. 966 Rule 131. 967 Rule 132. 968 Rule 134(1).

218

chapter iv

At the onset, the Trial Chamber shall ask the sides whether they have any “objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings”.969 Objections or observations may not be raised thereafter during the Trial unless leave is granted by the Trial Chamber.970 Objections or observations may, however, be raised on appeal.

1. Powers and Composition of the Trial Chamber Throughout the trial, the Trial Chamber has the power to exercise any function of the Pre-Trial Chamber that is “relevant and capable of application” during the trial.971 More specifically, it can require attendance and testimony of witnesses, require the production of documents and other evidence, obtain the assistance of states if necessary for evidence, protect confidential information, order the production of additional evidence, protect the accused, witnesses and victim. Further, it may rule on any other relevant matter.972 The Trial Chamber has the power to rule on the admissibility or relevance of evidence, and take all necessary steps to maintain order during the hearing.973 The Trial Chamber also has jurisdiction over offences against the administration of justice for acts such as giving false testimony, presenting false or forged evidence, corruptly influencing a witness, obstructive or interfering with the witness’s attendance or testimony, retaliating against a witness, destroying or tampering with evidence, intimidating a Court official to persuade him not to perform his duties properly, retaliating against an official of the Court, and soliciting or accepting a bribe by a Court official.974 Punishment for these crimes may be imposed by the Trial Chamber, but may not to exceed five years of imprisonment, or a limited fine, or both.975 Where appropriate, the offence can be prosecuted by the state Party, if committed by a citizen or on its territory.976 Likewise, the Trial Chamber can sanction persons for misconduct, such as disruption of proceedings, without using imprisonment—by fines or removal from the courtroom.977 The Trial Chamber is charged with ensuring that “the trial is fair and 969 970 971 972 973 974 975 976 977

Rule 134(2). Ibid. Article 61(11) of the Rome Statute. Ibid., Article 64(8). Ibid., Article 64(10). Ibid., Article 70(1). Ibid., Article 70(3). Ibid., Article 70(4)(a). Ibid., Article 71.

the trial

219

expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”978 always, however, in view of the provisions of the Statute and the Rules of Procedure and Evidence.979 The first step of the Trial Chamber is to “confer with the parties” (a process developed at the ICTY980 and further delineated in the RPE),981 and adopt procedures necessary to ensure a fair and expeditious trial.982 These conferences are meant to decrease disputes over procedure later on in the trial, so that it may focus and deal with substantive matters: the crimes and the role of the accused.983 At the very first conference,984 the date of the trial is to be set, and can be postponed upon the request of the Prosecutor or the defence, or the Chamber itself; the date must be made public.985 The Chamber must also provide disclosure of any other documents or information that were not previously disclosed, far enough in advance to ensure adequate preparation for the trial, unless provided otherwise by the Statute.986 At this point, the Trial Chamber may, at its discretion, combine several trials or separate a trial into several trials, and publish its decision.987 The Chamber may also refer preliminary issues to the Pre-Trial Chamber; although the Trial Chamber may exercise any function of the Pre-Trial Chamber,988 referring the issue back to the Pre-Trial Chamber will smooth the progress of the trial itself. 978 Ibid., Article 64(2). For the difficulty of balancing fairness and expeditiousness, see Frank Terrier, Powers of the Trial Chamber, in THE ROME STATUTE OF THE ICC, above note 669, at 1264–1265. For a counter-argument that states that fairness is not to be found (or created) in the procedural elements of the Court, but rather in its very structure, specifically its requirements for defence counsel, see “Developments in the Law— International Criminal Law: III: Fair Trials and the Role of International Criminal Defence” 114 Harvard Law Review (2001) 1982–2006. 979 Article 64(1) of the Rome Statute. 980 Gilbert Bitti, Functions and Powers of the Trial Chamber, in COMMENTARY ON THE ROME STATUTE, above note 7, at 815. 981 Rule 132. 982 Article 64(3)(a) of the Rome Statute. 983 Frank Terrier, Powers of the Trial Chamber, in THE ROME STATUTE OF THE ICC, above note 669, at 1268. 984 See Peter Lewis, Trial Procedure, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 542. 985 Rule 132. 986 Article 64(3)(a) of the Rome Statute. For some of the tensions involved in this clause between the necessity of disclosure and the state’s need for security, see Gilbert Bitti, Functions and Powers of the Trial Chamber, in COMMENTARY ON THE ROME STATUTE, above note 7, at 816–817. 987 Article 64(5) of the Rome Statute. Generally, those accused together are tried together, unless the Trial Chamber deems it necessary to separate the trials to “avoid serious prejudice to the accused, to protect the interests of justice, or because a co-accused has made an admission of guilt . . .”, Peter Lewis, Trial Procedure, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 546. 988 Rome Statute, Article 64(6)(a).

220

chapter iv

Composition—The Trial Chamber shall be composed of three judges of the Trial Division. While there are references to the Presiding Judge,989 the powers of the Trial Chamber are vested in the Chamber in general.990 The Statute grants the Presiding Judge the power to give direction for the conduct of the proceedings.991 As such, all other decisions must be taken by the Court and not by the Presiding Judge alone. As a practical matter, it is inconceivable that every issue which is raised before the Court, would require the judges to break off and consult each other.992 The Presiding Judge should thus be able to rule quickly on routine matters, and his decision will be considered the decision of the Court. However, it is the duty of the other judges, if they disagree with the decision of the Presiding Judge, or believe that the issue deserves deliberation, to raise this fact and in that case the Judges will deliberate. The powers and functions of the Trial Chamber and of the Presiding Judge are not clearly defined by the Rome Statute. The extent of their respective powers will have to be defined by practice.993

2. Place of the Trial and Language of the Proceedings The Place of the Trial—Under Article 3 of the Rome Statute the seat of the Court is The Hague. Nonetheless “the Court may sit elsewhere, wherever it considers it desirable, as provided in this Statute”.994 Furthermore, Article 62 provides that “unless otherwise decided, the place of the trial shall be the seat of the Court”. Rule 100 adds that “in a particular case, when the Court considers that it would be in the interests of justice, it may decide to sit in a state other than the host state. Such a decision is to be based on the “interests of justice”. The Court may sit elsewhere than at the seat of the Court either for the whole duration of the trial or for specific parts of it, such as on-site visits or for the evidence of specific witnesses.995 It seems that the term “interests of justice” in this case must be construed widely, and include interests relating to the rights of the defendant,

989

For example, Rule 141(1). See Article 64 of the Rome Statute. 991 Ibid., Article 64(8)(b). 992 Frank Terrier, The Powers of the Trial Chamber, THE ROME STATUE THE ICC, above note 669, at 1275. 993 Ibid., at 1276. 994 The ad hoc Tribunals have not to this date sat elsewhere other than at the seat of the Court. 995 Otto Triffterer, Place of the Trial, in COMMENTARY ON THE ROME STATUTE, above note 7, 796. 990

the trial

221

the expeditious and fair conduct of the proceedings, the available measures to ensure the safety of the Court and the parties, the availability of facilities needed to conduct the trial (including physical facilities, adequate telecommunication equipment, and others), as well as any other factor that may influence the conduct of the trial. Even if there are compelling reasons to hold the trial in a state other then the host state, the Court will not sit there unless it is convinced that the interests of justice are not compromised. A possible instance where the Court could decide that the interests of justice are compromised is when difficulties arise to ensure the attendance or the safety of witnesses in the temporary seat of the Court. The Rules of Procedure and Evidence thus modified the test outlined in Article 3 of the Rome Statute which refers to desirability, which is also the standard for the International Court of Justice.996 Article 62 of the Statute states that the place of the trial is the seat of the Court, which is a specific location within the Hague. In case of lack of available courtrooms within the seat of the Court and the need for a further courtroom for a specific trial, the Trial Chamber may decide to sit in a place other then the seat of the Court, in The Hague or in the Netherlands.997 Applications or recommendations to change the seat of the Court can be submitted in writing to the Presidency, by the Prosecutor, the defence or a majority of the judges of the Court at any time after the initiation of an investigation and should include the proposed state where the Court will sit. After having heard the views of the relevant Chamber, the Presidency shall consult the proposed state, and if that state agreed, the decision to sit in a state other than the Host State shall be taken by the Judges in a plenary session by a two-thirds majority.998 While there is no formal requirement that the state be a party to the Rome Statute, it is to be expected that in most cases the proposed state will, in fact, be a party. It has been suggested that there will be need for a “subsidiary temporal Headquarters Agreement” in order to allow for the proceedings to take place in a state other then the Host State.999 The Rules of Procedure and Evidence did not address this issue; it might be solved on a case-by-case basis. Rule 100 of

996 Article 22 of the Statute of the International Court of Justice. See Gerhard A.M. Strijards, Seat of the Court, in COMMENTARY ON THE ROME STATUTE, above note 7, at 75. The Rules of Procedure and Evidence of the ICTY and the ICTR also apply the standard of “interests of justice” to this issue. See Rule 4 common to the Rules of Procedure and Evidence of the ICTY and the ICTR. 997 Otto Triffterer, Place of the Trial, in COMMENTARY ON THE ROME STATUTE, above note 7, at 798. 998 Rule 100(2). 999 Gerhard A.M. Strijards, Seat of the Court, in COMMENTARY ON THE ROME STATUTE, above note 7, at 76.

222

chapter iv

Rules of Procedure and Evidence, and despite some proposals to the contrary,1000 does not specifically refer to applications by victims. It is still possible, however, that victims will be allowed to present their views and concerns if they apply in accordance with the general Rules regarding victim participation in proceedings. Language of the Proceedings—While the official languages of the Court are English, French, Arabic, Chinese, Russian, and Spanish, the working languages of the Court are French and English only.1001 Thus, the basic rule is that the languages used during the proceedings are French and English. Rule 41 outlines the procedure for the use of another official language as a working language. Under this Rule, the Presidency shall authorize the use of such other language when it is understood and spoken by the majority of those involved in a case and if any of the participants in the proceedings so requests, whether the Prosecution or the defence.1002 Further, the Presidency may authorize the use of an official language as a working language “if it considers that it would facilitate the efficiency of the proceedings”.1003 Despite these rules, it is clear that according to Article 67 the rights of the defendant in this regard must be protected. Article 67 specifically states that the defendant’s rights include free, competent translation services so that the defendant may understand the proceedings.1004 The defendant’s rights also include the right to address the Court in the language that he/she is most comfortable in. The extent to which this principle extends to the defence counsel is a question that has been raised before the ICTY, which has consistently rejected claims that defence counsel has the right to make submissions in languages other than the working languages of the Tribunal. In the Delalic case before the ICTY, the defence requested that all transcripts and other documents be provided in Bosnian, the language of the accused. The application was based on the right of the accused to use his own language, and it was also argued that the requirement that defence counsel address the Court in one of the working languages is a restriction on the right of the accused to choose his own counsel.1005 Specifically, the defence requested

1000

Ibid., at 75. Article 50 of the Rome Statute. 1002 Rule 41(1). 1003 Rule 41(2). 1004 Rule 67(f ). 1005 Prosecutor v. Delalic et al., ICTY Case No. IT-96-21, Decision on Defence Application for Forwarding the Documents in the Language of the Accused, 25 September 1996, para. 1001

the trial

223

that four different categories of documents be translated into or that he be able to submit in Bosnian. These documents included evidence admitted for trial, discovery, motions filed, and private correspondence between the parties.1006 While it was agreed that evidence must be translated into the language of the accused, the Court ruled that discovery, motions and correspondence does not have to be translated into the language of the accused.1007 This amounted to a restriction of “the principle of the accused’s free choice of counsel”.1008 The Court held that “Given the facility provided by the International Tribunal for counsel to speak the language of the accused during the proceedings, in addition to the two working languages, there is no restriction upon this right.”1009

In another case, the Trial Chamber dismissed the application of the defence counsel to use his native language in all written communication at trial, which was also the language of the accused and therefore the use of the language would ensure a more efficient and expeditious defence.1010 The Trial Chamber rejected the argument, and stated despite the defence’s submissions, the end result would be that the additional work borne by the translation services would significantly slow down the proceedings.1011 In the context of the ICC, Rule 22 requires defence counsel to “have an excellent knowledge of and be fluent in at least one of the working languages of the Court”, thereby significantly limiting requests of submissions in other than the two working languages.

1 (hereinafter “Delalic decision on Defence Application”). See also John R.W.D. Johns, THE PRACTIVE OF THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, above note 62, 132–3. 1006 Delalic decision on Defence Application, above note 1005, at para. 3. 1007 Ibid., at para. 7–10. 1008 Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1280. Counsel will have to communicate with his client as the content of the documents will have to be explained to him/her, the ideal being in the language of the accused but this is not always be the case and translations might be necessary. Replacement of defence counsel by the accused is not granted lightly; see Prosecutor v. Blagojevic, ICTY Case: IT-02-60-AR73.4, Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 15 September 2003 1009 Delalic decision on Defence Application, above note 1005, at para. 13. 1010 Prosecutor v. Zaric, ICTY Case No. IT-95-9, Decision on Defence Application for Leave to Use the Native Language of the Assigned Counsel in the Proceedings, 21 May 1998, para. 2. 1011 Ibid., at para. 8.

224

chapter iv 3. Public Trial

In principle, trials at the International Criminal Court are to be held in public.1012 It is considered a right of the accused to have a public trial in order to ensure that justice is seen to be done.1013 Public trials also function as an educational tool,1014 and are considered to be a right of the public, of the victims (albeit on a different basis), and not only of the accused.1015 According to the International Covenant on Civil and Political Rights:1016 “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing . . .”

The scope of this right was discussed by the ICTY in the Tadic case, where the Trial Chamber stated: “The benefits of a public hearing are well known. The principal advantage of press and public access is that it helps to ensure that a trial is fair. As the European Court of Human Rights noted: ‘By rendering the administration of justice visible, publicity contributes to the achievement of the aim of . . . a fair trial, the guarantee of which is one of the fundamental principles of any democratic society . . .’ (Sutter v. Switzerland, decision of 22 February 1984, Series A, no. 74, para. 26.) In addition, the International Tribunal has an educational function and the publication of its activities helps to achieve this goal. As such, the Judges of this Trial Chamber are, in general, in favor of an open and public trial.”1017

However, this is not an absolute right. Exceptions are allowed for both in the ICCPR,1018 and in the Rome Statute. Article 64(7) of the Statute provides that

1012

Article 64(7) of the Rome Statute. Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, Transnational Publishers (2002), at 281. 1014 Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUTE OF THE ICC, above note 7, at 1281. 1015 Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 227 1016 Article 14(1) of the ICCPR. 1017 Prosecutor v. Tadic, ICTY Case No. IT-94-1, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para 32. 1018 Under Article 14(1) “the press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. 1013

the trial

225

“[T]he trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence.”

The two exceptions, the protection of the accused, victims or witnesses1019 and the protection of confidential or sensitive information,1020 are not identical to those provided by the ICCPR. The exceptions envisaged by the Rome Statute are necessarily narrower then those established by the ICCPR. One the one hand, the Rome Statute does not include exceptions for reasons of public order for instance, on the other, Article 68(3) of the Statute provides that any part of the proceedings may be conducted in camera, a provision that is not included in the ICCPR. Which circumstances constitute “special circumstance’ will be established by the practice of the Court. The extent to which the press is allowed to operate freely within the Trial Chamber is also an issue related to the right to a public trial. While there are no limitations on journalists entering the Trial Chamber, there might be limitations to the right of the press to take photographs or in other ways record the content of the Trial. The Trial Chamber may, but is not obliged to authorize any one else except the Registrar to take “photographs, audio- and video-recordings and other means of capturing the sound or image of the trial.”1021 This Rule is similar to that of the Rules of Procedure and Evidence of the ICTY, and the experience of the ICTY has shown that Trial Chambers limited the number of press photographers to take still photographs.1022

4. Inability to Stand Trial The Rome Statute does not refer to situations where the accused is involuntarily unable to be present during the trial, for example due to his

1019

Article 68(3) of the Statute. See discussion below. 1021 Rule 137(3). 1022 Prosecutor v. Nikolic, ICTY Case No. IT-94-2, Order for Release of Audio-Visual Record and Permitting Photography, 27 April 2000. In both cases the Trial Chambers authorized the taking of photographs as follows: “(2) Subject to any further order of the Trial Chamber, the taking of still photographs by two designated press photographers at the commencement of all proceedings in this matter is authorized as directed by the Chief of Security of the Tribunal’s Security Service”. A close to identical decision was taken by the Trial Chamber in Prosecutor v. Tadic, ICTY Case No. IT-94-1, Order to Permit Photography, 11 November 1999. 1020

226

chapter iv

or her physical or mental health. Even before the adoption of the Rules of Procedure and Evidence it was estimated that the general provision of Article 63 would, under the circumstances, lead to the postponement of the Trial until the accused will be able to take part.1023 This conclusion was also based on the fact that the draft statute specifically refers to the ill-health of the accused as grounds for trial in absentia, a provision which was not included in the Rome Statute.1024 The Rules of Procedure and Evidence ultimately addressed this issue. The Trial Chamber may on its own initiative or at the request of a party order a medical, psychiatric or psychological examination of the accused.1025 In deciding whether to order such an examination, the Court shall consider the nature and purpose of the examination, as well as whether the accused consents to the examination.1026 The Court shall place on record its reasons for such a decision.1027 The Trial Chamber may appoint one or more experts to conduct the examination. The expert shall either be selected from a list of experts approved by the Registrar or be suggested by a party and approved by the Court.1028 If the Trial Chamber is satisfied that the accused is unfit to stand trial, the trial will be adjourned. The case may then be reviewed either on the Court’s own motion or on the Prosecution’s motion, and in any case the Court will review the case after 120 days have passed, unless there are reasons for the Court to do otherwise. The Court may order, if necessary, further examinations.1029 Under Rule 113, among other factors, the Court “shall consider” whether the accused consents to the examination. As the Court may proprio motu order such an examination, the terms “shall consider” do not necessarily prevent the Court from doing so even in the absence of the accused’s consent.

5. The Rights of the Accused Article 67 of the Rome Statute sets out the “minimum guarantees” for the accused. The individual has been charged with crimes within the jurisdiction of the ICC, and the charges were confirmed by the Pre-Trial Chamber.

1023 Frank Terrier, The Powers of the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1283–4. 1024 Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 247. 1025 Rule 135. 1026 Rules 135 and 113. 1027 Rule 135(2). 1028 Rule 135(3). 1029 Rule 135(4).

the trial

227

From then until the end of proceedings, the accused has certain rights, first and foremost the right to a fair, public, and impartial trial.1030 Under Article 66 of the Statute “everyone shall be presumed innocent until proven guilty”. The presumption of innocence1031 is a fundamental right and is considered one of the cornerstones of a fair trial,1032 along with the principle that the burden of proof is placed upon the Prosecutor, and that to convict, the Court must be convinced “beyond reasonable doubt” of the guilt of the accused.1033 A corollary of this rule is that the accused also has the right to remain silent, without it having an effect on the determination of guilt or innocence.1034 This right was included in the Statute with virtually no dissent.1035 International human rights law requires that the accused be given a fair trial; this clause may also suggest that the Court must respect the development of international law and conduct a trial that is fair by the current standards of international law, even when this would expand the minimum guarantees.1036 One such development is the concept of “equality of arms” 1030

Article 67(1) of the Rome Statute. For a discussion of the implications of this Article in relation of the provisional release of the accused, particularly if the trials before the ICC will be as long as the trials of the ad hoc Tribunals, see Daniel Rearick, Innocent Until Alleged Guilty: Provisional Release at the ICTR, 44 Harvard International Law Journal (2003), 577–595. 1032 See Zappalà, Salvatore, The Rights of the Accused, in THE ROME STATUTE OF THE ICC, above note 669, at 1340–1341. For a brief history of this principle in international law, see Lynne Mirian Baum, Pursuing Justice in a Climate of Moral Outrage: An Evaluation of the Rights of the Accused in the Rome Statute of the International Criminal Court, 19 Wisconsin International Law Journal (hereinafter “Pursuing Justice in a Climate of Moral Outrage”) (2001), at 206–210. For topical discussions on the threat to the right to be presumed innocent in the face of a terrorist threat, see Emanuel Gross, Trying Terrorists—Justification for Differing Trial Rules: The Balance Between Security Considerations and Human Rights, 13 Indiana International & Comparative Law Review (2002), 1–96, and Marjorie Cohn, Rounding Up Unusual Suspects: Human Rights in the Wake of 9/11, 25 Thomas Jefferson Law Review (2003) 317. 1033 See William A. Schabas, Presumption of Innocence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 834. For a discussion on the drafting history of this Article, particularly on the minutiae of the wording see ibid., at 834–836. For possible misinterpretations of the Article, see ibid., at 838–842. 1034 Article 67(g) of the Rome Statute. See also RPE, Rule 74 for more details on selfincrimination. The link between the two provisions is determined by Salvatore Zappalà, The Rights of the Accused, in THE ROME STATUTE OF THE ICC, above note 669, at 1343. For an overview of the right to remain silent in international law, see Diane Marie Amman, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA Law Review (1998), 1201–1295 For a brief description of its origins, see Lynne Mirian Baum, Pursuing Justice in a Climate of Moral Outrage, above note 1032, at 203–205. 1035 See William A. Schabas, Article 67, in COMMENTARY ON THE ROME STATUTE, above note 7, at 861. For a detailed history of this right in international law, see Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L. Rev. 1201 (1998). 1036 William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 851. One such expansion may be the decision not to allow anonymous witnesses at the ICC: see Monroe Leigh, Witness Anonymity is Inconsistent with Due 1031

228

chapter iv

which has developed in international law.1037 Some elements of equality of arms, such as the right to adequate time and facilities to prepare the defence are already included as minimum guarantees,1038 while others, such as the right of the defence to operate in the territory of a state party as does the prosecution,1039 are implied by the notion of “fair trial.”1040 The Right of the Accused to be Present at the Trial—The issue of whether the ICC Statute should allow for trials in absentia raised divergent views during the drafting process of the Statute. Article 37 of the draft Statute1041 stated “as a general rule, the accused should be present during the trial”.1042 This provision also describes the conditions which have to be met in order for the ICC to diverge from this general rule. It should be mentioned that the Statute of the ICTY and the ICTR do not allow for trials in absentia, due to the “overriding need to ensure that justice is not only done but is seen to be done”.1043 Despite its inclusion in the draft Statute, the Rome Statute as adopted, does not contain a provision which could be interpreted as allowing trials in absentia of the accused .1044 Under Article 63 of the Rome Statute, “the accused shall be present during the trial”. The meaning of this provision does not seem to be limited to the mere physical presence of the accused; he must be able to understand the proceedings.1045 The International Covenant on Civil and Political Rights states that

Process, 91 A.J.I.L. (1997), at 80. For a general background on this issue, see Natasha A. Affolder, Tadic, The Anonymous Witness and the Sources of International Procedural Law, 19 Mich. J. Int’l L. (1998), at 445. 1037 See for instance Andre Klip, Obtaining Evidence Abroad in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, above note 717, at 28. See also Salvatore Zappalà HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 109–114. 1038 Article 67(1)(b) of the Rome Statute. 1039 See for instance, Kenneth Gallant, The Role and Powers of Defence Counsel in the Rome Statute of the International Criminal Court, above note 719, at 32. 1040 For an overview of the concept of the “fair trial,” see Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, above note 664, at 550–553. 1041 Report of the Preparatory Committee on International Criminal Court, U.N. GAOR, 51st Sess., Supp. No. 22, at 5, U.N. Doc. A/51/22 (1996). 1042 On this issue see Daniel Brown, Note: The International Criminal Court and Trial In Absentia, 24 Brook. J. Int’l Law (1998–1999), at 763. For a critique of the need for the presence of the accused to ensure a fair trial, see Neil Cohen, Trial in Absentia Re-Examined, 40 Tenn. L. Rev. (1973), 155. 1043 Statement by the President of the ICTY made at a Briefing to Members of Diplomatic Missions, IT/29, Feb. 11, 1994, cited in Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 281. 1044 Frank Terrier, The Powers of the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1283. 1045 William A. Schabas, Trial in the Presence of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 807.

the trial

229

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees . . . To be tried in his presence”.1046

However, the right to be present at one’s trial is not considered as a “core” human right.1047 Moreover, it seems that the right does not render trials in absentia illegal under all circumstances.1048 The Human Rights Committee in the case of Daniel Monguya Mbenge v. Zaire discussed this issue and noted that there are circumstances where such trials would be permissible.1049 The ICC Statute requires the presence of the accused. The exception to the general rule is Article 63(2) applicable in the event the accused deliberately “continues to disrupt the trial”.1050 In this case, the Trial Chamber may remove the accused and make provisions for him or her to observe the trial and instruct counsel from outside the courtroom through use of communication technology, if required.1051 Such measures shall be taken only in exceptional circumstances after other reasonable alternatives proved inadequate, and only for “such duration as is strictly required.” The Trial Chamber’s authority to remove the accused does not apply in case of a single disruption. The accused may be removed only when he or she continues to disrupt the trial. In practical terms, the Trial Chamber will warn an accused that he or she is being disruptive and may be removed, and only then, after such warnings and continued disruptions, will the accused be removed. Under Article 63(2), after having been removed, the accused must be granted the opportunity to observe the trial and instruct his counsel. This provision is inapplicable when it comes to an accused person who chooses to represent himself. The specific purpose of Article 63(2) is that even where the accused is removed, the ramifications of such a removal other than the physical presence of the accused in the actual Chamber are minor. However, an accused who choose to represent himself and does not have counsel, will not have the opportunity to take part in the proceedings through said counsel. Thus, it seems that in light of the specific intent of the Article to allow the accused to participate in the proceedings despite

1046

ICCPR, Art. 14(3)(d). Daniel Brown, The International Criminal Court and Trial in Absentia, above note 773, at 16. 1048 Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 242–243. 1049 Mbenge v. Zaire, Communication No. 16/1977, U.N. Doc. CCPR/C/OP/2 (1990), at 76. 1050 Frank Terrier, The Powers of the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1282. 1051 Michele Caianiello and Giulio Illuminati, From the International Criminal Tribunal for the Former Yugoslavia to the International Criminal Court, 26 N.C.J. Int’l L. & Com. Reg. (Spring 2001), 447 (hereinafter “From the ICTY to the ICC”). 1047

230

chapter iv

having been removed, the Trial Chamber will have to attempt to find a way to allow an accused who is not represented to take part in the proceedings. Possible solutions could include participation via communications technology directly to the Court, allowing the accused to be seen and/or heard by the Court. However, if the accused continues to disrupt the trial even in these circumstances then the Court will have to weigh the rights of the accused against the interest of proceeding in a timely manner with the trial, and reach a decision as to the continuation of the trial. Only in exceptional circumstances should the trial continue in the absence of the accused which is not a desirable situation for international trials.1052 Right to Full Equality—The accused has a right not to be discriminated against. This right can also be gleaned from the general provision that the Court should apply all applicable principles and rules of international law.1053 The formulation of “in full equality” is equivalent to non-discrimination clauses in other international documents, such as Article 14 of the ICCPR1054 and was taken directly from the ICTY Statute.1055 Likewise, the accused has the right to impartial judges. The Rome Statute provides that a judge is disqualified from a case if his impartiality “might reasonably be doubted”, or if a judge was previously involved in a “related case at the national level” among others.1056 The Right to be Informed of the Charges—Together with Articles 55(2) and 61(3), the minimum guarantee in Article 67 underscores that the accused has a

1052 See Salvatore Zappalà HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 129. On the question as to whether a witness is obliged to answer questions of the prosecution during a cross-examination in the absence of the accused who chose to represent himself (Milosevic), and who was prevented to appear for medical reasons, the Trial Chamber found the witness refusing to answer questions posed by the Prosecutor in contempt of Tribunal; see Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54-R77.4, Contempt Proceedings against Kosta Bulatovic, Decision on Contempt of Tribunal, 13 May 2005. The defence argued among others, that the accused should be present to be fully informed and able to object during the cross-examination. The Trial Chamber held that it will not allow a witness to control the pace of proceedings. The matter is pending before the Appeals Chamber; see ibid., ICTY Case No. IT-02-54-A-R77.4, Decision on Prosecution Application to Strike Appellant’s Brief in the Appeal of the Decision on Contempt of the Tribunal Costa Bulatovic, 23 June 2005. 1053 Article 21(1) of the Rome Statute. 1054 William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 852. 1055 Article 21 of the ICTY Statute. 1056 Article 41 of the Rome Statute. The disqualification of a judge may be requested by an investigated or accused person and by the Prosecutor; Article 41(2)(b). For a decision dismissing an application for the disqualification of Judges in the context of the ICTY, see Prosecutor v. Brdjanin, ICTY Case No. IT-99-36-R 77, Decision on Application for Disqualification, 11 June 2004.

the trial

231

right to be informed of his charge, in detail. He is to be informed, at no cost to himself, of the nature of the crime, the specific offense, the cause, the relevant material facts, and the content, which includes anything else that is relevant.1057 The accused must be in a position to thoroughly understand the information relevant to his case. In order to ensure full disclosure, the Statute emphasizes that the disclosure must be in the language that the accused “fully understands and speaks,”1058 or the language for which the accused “clearly expressed his or her preference.”1059 This right is broader and more detailed than that granted at both the ICTY and ICTR, which ensured the right to be informed only.1060 In case an accused does not understand for reasons other than language barriers, he/she may be subject to the appropriate examinations by order of the Trial Chamber or at the request of any party in order to determine whether the person is fit to stand trial.1061 Right to Adequate Preparation for the Defence—As one of the minimum requirements of a fair trial, the accused is guaranteed “adequate time and facilities for the preparation of the defence”. Adequate time is, obviously, a relative term, and will have to be decided on a case-by-case basis.1062 Further, the accused has the right “to communicate freely with counsel of the accused’s choosing in confidence.”1063 Facilities apparently do not refer only to physical space, but also to documents and records necessary to the defence.1064 Implicitly, this right may include the prohibition on allowing a conviction not listed in the indictment; it would leave the defence no time to prepare counterevidence.1065 The specific regulations on the details of how the 1057 William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 853. 1058 Article 67(1)(a) of the Rome Statute. Clearly, this should not exclude handicapped individuals unable to speak from the jurisdiction of the Court. 1059 Footnote 5 in Report of the Working Group on Procedural Matters, quoted by William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 854. 1060 See Article 21(4)(a) of the ICTY Statute and Article 19(2) of the ICTR Statute. 1061 The trial of a person considered unfit to stand trial will be adjourned, this following a medical, psychological or psychiatric examination conducted by an expert appointed or approved by the Trial Chamber. The trial will proceed after the accused has become fit to stand trial; see Rule 135. 1062 Article 67(1)(b) of the Rome Statute. Various factors will have to be considered to determine which time is “adequate”. In view of the crimes within the jurisdiction of the Court combined with the inherent difficulties to gather evidence and find witnesses for the accused, motions for the postponement of set time limits may be expected. 1063 Ibid. The ICTY Statute is identical, except for the addition of the words “in confidence” in the ICC Statute (see art. 21(4) of the ICTY Statute). 1064 See William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 855. 1065 See Sarah Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, above note 664, at 558.

232

chapter iv

accused may communicate are left to the various regulations of the Tribunal; for example, they are guaranteed office space, and the Tribunal’s library is open to the defence counsel.1066 However, there is no guaranteed funding for the defence investigation as of yet.1067 Choice of Counsel and to Legal Assistance—The accused has the right to be defended “through legal assistance of the accused’s choosing,” and to be informed of this right,1068 though the counsel may be subject to certain restrictions, as discussed above, essentially but not exclusively to ensure that counsel meet the required standards. The accused has the right to have legal assistance assigned by the Court if the “interests of justice so require”. The accused lacking sufficient means to pay for legal assistance, it must be provided without payment.1069 This right is granted to a person from the time he/she is believed to have committed a crime,1070 until the very end of the proceedings. It is unclear precisely where it would not be in the interest of justice to require free legal assistance when necessary, and as such, the

1066 Salvatore Zappalà The Rights of the Accused, in THE ROME STATUTE OF THE ICC, above note 669 at 1339. 1067 See Kenneth Gallant, The Role and Powers of Defence Counsel in the Rome Statute of the International Criminal Court, above note 719, at 36. 1068 Article 67(1)(d) of the Rome Statute. 1069 Ibid. Rule 21–1 refers to “procedures for assignment of legal assistance”. The French version of the Rules reads: “les procedures pour la commission d’office d’un conseil ‘aux indigents’: The French term ‘indigents’ means persons lacking the most necessary things for life (“Qui manquent des choses les plus nécessaires à la vie”—French dictionary Petit Robert, 1991). The French version is much more restrictive than the English version as an accused might be unable to pay counsel for lack of sufficient means without being “indigent”. Pursuant to Rule 21, the Registrar shall establish and maintain a list of counsel. The accused may choose his or her counsel from that list. Counsel not appearing on the list may be chosen by the accused conditional upon the counsel’s willingness to be included in the list and provided that he meet the criteria set forth in Rule 22 under which “A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in any similar capacity, in criminal proceedings”. The requirement to have “established competence” in international, criminal law and procedure limits the choice of counsel essentially to those having represented defendants at the ICTY and ICTR, former amicus curiae and former legal representative of victims. The aim of ensuring that efficient counsel clearly undermines the freedom of choice of counsel by the accused. Counsel will be subject to the Code of Professional Conduct for Counsel which was not yet adopted (May 2005). The said Code, is to be adopted by the Assembly of States according to Article 112, paragraph 7 of the Statute. An accused should be allowed to dismiss counsel in case of offences against the administration of justice (Article 70 of the Statute) or in the event of misconduct by counsel before the Court (Article 71 of the Statute) and for any act of negligence that proved to be detrimental to the accused. 1070 Ibid., Article 55(2).

the trial

233

Article appears to be unnecessarily wordy,1071 unless this provision allows the Court to assign legal counsel against the will of the accused, if in the interest of justice. Though the Registrar is responsible to determine procedures for assigning legal assistance,1072 it is also still unclear which tests shall be applied to determine need, and to what lengths the Registrar should go to determine financial need.1073

6. Conduct of the Defence in Person The accused may but is not obligated to be represented by counsel.1074 Article 67(d) provides that the accused has the right “to conduct the defence in person or through legal assistance of the accused’s choosing . . .”. If an accused so chooses, he must notify the Registrar in writing immediately.1075 Article 14 of the ICCPR and more recently by the ICTY Statute (Article 21), and the ICTR Statute (Article 20), enables the defendant to conduct his or her own defence. This right may, however, come into conflict with the general prescription to conduct a fair trial. If the defendant is inexperienced or simply unskilled in the courtroom, it may bode badly for his trial; in that case, the Court will have to determine whether to appoint counsel, or perhaps appoint an amicus curiae, or perhaps be less strict in the treatment of the defendant. In the Milosevic case the Appeals Chamber held that

1071 See William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 858. 1072 Rule 21. 1073 See Gerard Dive, The Reigstry THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 280–281 for the drafting history of Rule 21 and its drawbacks. See also Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 62–64. For some of the difficulties faced at the ICTY, see Sylvia de Bertodano, What Price Defence? Resourcing the Defence at the ICTY, ICJ 2.2 (2004), at 503. Prosecutor v. Stanisic, ICTY Case No. IT-03-69-PT, Decision of the Registry on Assignment of Counsel and the Extent to which the Accused is Able to Remunerate Counsel, 29 June 2004, and Appendix II (of the decision), Registry Policy for Determining the Extent to Which an Accused is Able to Remunerate Counsel (entry into force: 4 May 2004). For problems posed on the issue of remuneration in international tribunals, see Dorothee de Sampayo Garrido-Nijgh, The Defence Unit of the Registry of the ICTY: Personal Recollections, in AN INDEPENDENT DEFENCE, above note 717, at 47. See also John R.W.D. Jones, Claire Carlton-Hanciles, Haddijatou Kah-Jallow, Sam Scratch, and Ibrahim Yillah, The Special Court For Sierra Leone—A Defence Perspective, ICJ 2.1(211) at 3B (“Devising a Legal Aid System). 1074 Article 67(1)(d) of the Rome Statute. For an overview of the history of this right in international tribunals, see Nina H.B. Jorgensen, The Right of the Accused to Self-Representation Before International Criminal Tribunals, 98 A.J.I.L., (2004), at 711; see also Stuart Beresford & Hafida Lahiouel, The Right to be Defended in Person or through Legal Assistance and the International Criminal Court, 13 Leiden Journal of International Law (2000), 949. 1075 Rule 21.

234

chapter iv “. . . by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal system’s respect for a defendant’s decision to forgo assistance of counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring. Where an accused elects self-representation, the concerns about the fairness of the proceedings are, of course, heightened, and a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” (para. 19) (footnote omitted).1076

Self-representation by an accused person does raise both legal and practical difficulties related to the scope of the right, and whether the Court may impose representation on the accused. Neither the Statute nor the Rules of Procedure and Evidence specify in which case the Court may impose representation. As the ICTY experience has shown, this fact alone does not imply that the Court does not have such power. In the Slobodan Milosevic case, the accused asserted repeatedly his right to represent himself, and strenuously opposed that legal representation be imposed by the Court. On 30 August 2001, shortly after Milosevic was transferred to the Tribunal in The Hague (on 29 June 2001),1077 the Court ordered that amicus curiae be appointed. The Court stated that it “considers it desirable and in the interests of securing a fair trial that an amicus curiae be appointed as permitted by the Rules of Procedure and Evidence, not to represent the accused but to assist in the proper determination of the case”.1078

The amicus curiae were designated to assist the Trial Chamber in: “(a) making any submissions properly open to the accused by way of preliminary or other pre-trial motion; (b) making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate; (c) drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and (d) acting in any other way which designated counsel considers appropriate in order to secure a fair trial . . .”1079

1076 Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004. See William A. Schabas, The Rights of the Accused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 857. 1077 Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54, Order for Detention on Remand, 3 July 2001. 1078 Ibid., Order Inviting Designation of Amicus Curiae, 30 August 2001. 1079 Ibid.

the trial

235

While the stated purpose of this order was to serve the interests of a fair trial, amicus curiae enjoy, without being a side in the proceedings, certain rights of the defendant. Amicus curiae are entitled to receive, and the Court so ordered, any material (including confidential materials) which the accused received.1080 The amicus curiae were allowed among other things to file a Motion for Judgement of Acquittal1081 and were allowed de facto to file an interlocutory appeal.1082 The Prosecution contended that defence counsel should be imposed on the accused. In a comprehensive opinion dealing with the right to defend oneself in international and national law, the Court declined to impose such counsel. Nonetheless, the Court stated that there may be circumstances where counsel should be imposed in the interests of justice. Milosevic’s health problems seriously hampered the scheduled hearings. During the Prosecution’s case, the worsening in the accused’s condition meant that the Court could eventually only sit for three days a week, and after the Prosecution rested its case, the Court’s anticipated three-month delay which supposedly already took Milosevic’s health into account ended up doubling. As a result, Milosevic’s opening statement commenced over six months after the close of the Prosecution’s case.1083 The Prosecution eventually submitted a further request to impose counsel, and this time the Court granted the request.1084 The Court did however state that

1080

Ibid., Order Concerning the Provision of Documents to Amici Curiae, 19 September 2001. Ibid., Decision on Prosecution’s Motion Under Rule 73(A) for a Ruling on the Competence of the Amici Curiae to Present a Motion for Judgement of Acquittal Under Rule 98 bis, 5 February 2004. 1082 Ibid., Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004. The Appeals Chamber noted that the amici are not a party to the proceedings, and therefore are not allowed to file interlocutory appeals. Nonetheless, the Court held that “amici’s present request is aligned with that of the Accused, and that the Appeals Chamber’s consideration of this appeal would not infringe his interests. Nor is there a danger of unfairness to the Prosecution. The Prosecution does not oppose the consideration of the appeal; in fact, the Prosecution represented to the Trial Chamber its willingness to accept the amici as a party for these purposes. It is also to be noted that in this case the consideration of the appeal serves the interests of justice. In these circumstances, the Appeals Chamber decides to consider the appeal”, para. 5. See also separate opinion of Judge Shahabuddeen, who stated that while he agreed with the Court’s decision to dismiss the appeal, the appeal should have been dismissed due to the fact that it was not brought by a “party” to the proceedings. 1083 Milosevic Case, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 4–5. 1084 Ibid., Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, para. 64–68. 1081

236

chapter iv “The Accused may, with the leave of the Trial Chamber, continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses, following examination by Court assigned counsel.”1085

The Trial Chamber granted certification to appeal the decision. The Appeals Chamber affirmed the Trial Chamber’s decision to impose counsel, but reversed the decision on the accused’s own involvement in the defence on the grounds that the decision was not proportional.1086 Other international tribunals have also made decisions imposing defence counsel.1087 The ICC might follow the standard established by the ICTY in the Milosevic case, although nothing precludes the setting of a different one. The choice of the accused to defend himself, raises practical difficulties for the Court. Such difficulties will vary greatly from case to case depending on whether the accused is a person lacking any legal knowledge or whether he/she is an experienced criminal attorney standing trial before the Court. The first case does raise difficulties for the Court, while the latter does not. The practical questions can be classified into two groups. The first is granting the accused sufficient tools so that he may prepare his defence. For example, in the Milosevic case the Chamber ordered the Registrar to provide the accused with adequate facilities to conduct his defence. The accused was given the following facilities: “With regard to facilities at UNDU, the Registry reported that the Accused is, inter alia, entitled to: receive and send uncensored mail and facsimile messages from and to his legal associates on weekdays; conduct unmonitored communications by telephone with his legal associates during all days of the week; receive scheduled visits of his legal associates during weekdays; make use of the photocopying facility of UNDU; review video evidence on VCR at UNDU; use his own portable computer in UNDU and, if he so wishes, install a printer to it. While appearing in Court, the Accused is also allowed to access a privileged phone line during the trial breaks. The Accused is also able to send facsimiles and use photocopying facilities if urgently needed.”1088

This list is an example of the means the Court considered needed, in the circumstances of the case, for the accused to prepare his defence. His needs 1085

Ibid., para. 69. Ibid., Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 4–5. 1087 Prosecutor v. Norman, and Others, Special Court for Sierra Leone Case No. SCSL04-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation Under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, at para. 8; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000. Milosevic Case, Reasons for Decision on Assignment of Defence Counsel, above note 1084. 1088 Ibid., at footnote 143. 1086

the trial

237

will in fact have to be determined on a case-by-case basis. The test for a “reasonable request” should be that the means required by the accused are necessary for the preparation of his case, while not posing insurmountable difficulties to the Court. Article 67(b) states that the accused has the right “to have adequate time and facilities for the preparation of his defence”, there is, however, no minimum or other test as to the facilities the accused person is entitled to. The extent to which the Trial Chamber, accommodates the self-representation by the accused, largely depends on his ability to do so. As a general rule, the accused’s right to a fair trial requires that the Court take measures to safeguard the rights of the accused. This might include that the Court interfere with the adversarial proceedings in ways in which it might not in the case of an accused who has legal representation. The Chamber might be more liberal in using its power under Article 64(9) of the Rome Statute to raise motions on its own, specially when examining the admissibility of evidence, and might be more active in seeking exculpatory evidence using its power under Article 64(6)(d) of the Rome Statute. The role of the Court to ensure a fair trial is obviously more extensive in cases where the accused chose not to have legal representation.

7. Amicus Curiae Rule 103 grants the Chamber broad discretion. The Chamber may either invite or grant leave to submit observations. Therefore, observations by amicus curiae can be put before the court in two ways, upon invitation by the Court (such as in the Milosevic case before the ICTY), or upon leave by the Court as requested by the state, organization or person who wishes to participate in the proceedings. Observations may also be submitted by a state (not necessarily a party to the Statute), an organization or a person. Lastly, the observations may be either in writing, filed with the Registrar (who shall provide copies to the Prosecutor and the defence), or in oral form before the Chamber itself. With regards to written observations, the Chamber may set time limits that shall apply to the filings of the observations.1089 Rule 103 does not limit the scope of these observations. The amicus curiae could either be invited or allowed to make observations on a specific point, such as a legal question, or be allowed to participate extensively in the proceedings, almost to the point where they are a party to the proceedings such as in the Milosevic case. The Prosecutor and the defence shall be

1089

Rule 103(3).

238

chapter iv

granted the opportunity to respond to the observations submitted.1090 Rule 103(1) of the RPE is very similar to Rule 74 of the Rules of Procedure and Evidence of the ICTY,1091 and it was submitted that the ICC could benefit from the practice of the ICTY in this regard.1092 Examples of participation by amicus curiae before the ad-hoc Tribunals include issues related to the participation of governments in the proceedings,1093 amicus curiae submissions on the matter of anonymity of witnesses and the protection of victims and witnesses,1094 the invitation of the ICTY to submit briefs on the issue of the power of the Court vis-à-vis subpoena duces tecum,1095 an amicus curiae Prosecutor,1096 amicus curiae brief submitted to the Appeals Chamber by media companies and associations of journalists on the question of journalistic privilege,1097 among others.

8. Proceedings on Admission of Guilt The admission of guilt by an accused, also referred to as “guilty plea”,1098 is of major importance and is a means to dispose of a considerable amount of cases without resorting to trial in several common law countries. In the continental law system, an admission of guilt by the defendant is not automatically accepted. In the context of international criminal trials, a guilty plea is of meaningful as it permits to avoid lengthy, complicated and expensive trials.1099 1090

Rule 103(2). The Rule states that “A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber”. 1092 On this issue, see John R.W.D. Jones, THE PRACTICE OF THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, above note 62, at 273–5. 1093 Ibid. at 273. 1094 Ibid. 1095 Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Order Submitting the Matter to Trial Chamber II and Inviting Amicus Curiae, 14 March 1997. 1096 Prosecutor v. Brdjanin, ICTY Case No. IT-99-36-R77, Order to Amicus Curiae Prosecutor, 16 July 2004. 1097 Prosecutor v. Brdjanin, ICTY Case No. IT-99-36-AR73.9 Decision on Interlocutory Appeal, 11 December 2002. 1098 Alphons Orie writes that the wording ‘admission of guilt’ has been deliberately selected so as not to use the term ‘guilty plea’ which is used in the common-law or civil-law systems, see Alphons Orie, Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and In the Proceedings Before the ICC, in THE ROME STATUE OF THE ICC, above note 669, at 1480. See also Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 276. 1099 Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 45. See Prosecutor v. Dragan Nikolic, ICTY Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005; Todorovic Sentencing Judgement, above note 464. 1091

the trial

239

Although rare, there have been whole or partial guilty pleas in proceedings before the ICTY.1100 In the international context, trials have an added importance in that they are not merely adversarial proceedings, but also provide a forum for fact-finding and the presentation of important historical documentation. On the issue of guilty pleas, a Joint Separate Opinion of Judge McDonald and Judge Vohrah stated: “The concept of the guilty plea per se is the peculiar product of the adversarial system of the common law which recognizes the advantage it provides to the public in minimizing costs, in the saving of court time and in avoiding the inconvenience to many, particularly to witnesses. This common law institution of the guilty plea should, in our view, find a ready place in an international criminal forum such as the International Tribunal confronted by cases which, by their inherent nature, are very complex and necessarily require lengthy hearings if they go to trial under stringent financial constraints arising from allocations made by the United Nations itself dependent upon the contributions of States.”1101

After the accused has been fully informed of the nature of the charges, and the trial is set, the accused can plead guilty or not guilty. If the accused pleads guilty,1102 the Trial Chamber must be satisfied that he understands “the nature and consequences” of the admission; that the admission was made voluntarily and after sufficient consultation with defence counsel; and finally, that the admission of guilt is supported by the facts of the case.1103 The degree to which the Chamber will have to ensure that each of these requirements was met, will have to be fleshed out in the course of the workings of the ICC. Upon establishing the admission of guilt, the Trial Chamber may convict the accused. If the Chamber is not satisfied that all criteria were met, the admission of guilt is considered as never having been made, and the trial continues as would a regular trial.1104 If the Chamber believes that more facts are necessary “in the interests of justice, in particular the interests of the victims,”1105 it may request the Prosecutor to bring additional evidence, or order the trial to continue under ordinary trial procedures, 1100 See for example Prosecutor v. Sikirica et al., ICTY Case No. IT-95-8, Sentencing Judgement, 13 November 2001, para. 38–9. 1101 Erdemovic Jugement II, above note 76. 1102 On the admission of guilt and its consistency with the Court’s mandate to administer public justice, see Caianiello, Michael and Giulio Illuminati, From the ICTY to the ICC, above note 1051, at 454–455. 1103 Article 65(1) of the Rome Statute. For the synthesis of this Article between common law and civil law systems, see Fabricio Guariglia, Proceedings of an Admission of Guilt, in COMMENTARY ON THE ROME STATUTE, above note 7, at 824–826. 1104 Article 65(3) of the Rome Statute. 1105 Frank Terrier explains that at times a public hearing, even after the guilt has been admitted, may be for an educational purpose, or sometimes to ensure that the truth is not covered up in public discourse; Procedure before the Trial Chamber, in THE ROME STATUTE OF THE ICC, above note 669, at 1289.

240

chapter iv

once again ignoring the admission of guilt.1106 If the case proceeds to trial, the Trial Chamber may remit the case to another Chamber; the Chamber can, however, retain jurisdiction over the case.1107 Any plea-bargaining between the Prosecutor and the defence is not binding upon the Court,1108 it has exclusive competence to determine the sentence.1109 Article 65 outlines the procedure which shall be taken in case the accused chooses to make such an admission of guilt. The Trial Chamber must: a) Determine whether the accused understands the nature and consequences of the admission of guilt,1110 The Court has a duty to do so in addition to the requirement of Article 64(8)(a) which is to ensure that the accused understands the nature of the charges. According to Rule 135, the Court may in both cases order a medical, psychological or psychiatric examination of the accused, so that the Court may ascertain whether the accused is mentally fit to understand the nature and consequences of the admission of guilt and the charges. b) Determine whether the admission was made voluntarily by the accused and was made after sufficient consultation with defence counsel.1111 The question is whether an accused who chooses to represent himself may make an admission of guilt without consulting counsel. Under such circumstances, the Court will be unable to find that the admission of the accused “was made after sufficient consultation with defence counsel”. The might decide that the required criteria for an admission of guilt were not met, or to appoint counsel and condition the Court’s decision to effective consultations with counsel. c) Determine whether the admission of guilt is supported by the facts of the case.1112

1106

Article 65(4) of the Rome Statute. On this issue, see Fabricio Guariglia, Proceedings of an Admission of Guilt, in COMMENTARY ON THE ROME STATUTE, above note 7, at 824–826 and 830–831. 1108 Article 65(5) of the Rome Statute. For a historical survey on plea-bargaining in international law, see Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 University of Pennsylvania Law Review (2002). For a comparative survey on plea-bargaining in civil law systems and the theoretical underpinnings of the process, see Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard International Law Journal (2004) 1–64. 1109 For a brief discussion on guilty pleas and plea-bargaining at the ICTY, see Joseph Falvey, United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 19 Fordham International Law Journal 475 (1995) at 506–509. 1110 Article 65(1)(a) of the Rome Statute. 1111 Ibid., Article 65(1)(b). 1112 Ibid. 1107

the trial

241

The Court will consider whether the facts brought by the Prosecutor are those that are admitted by the accused,1113 whether materials presented by the Prosecutor which supplement the charges are accepted by the accused,1114 together with any other evidence presented by the Prosecutor or the accused.1115 Accordingly, the proceedings do not end with admission of guilt, the Court will examine the admission in light of the evidence submitted. Under Article 65(1)(c)(iii), both the Prosecutor and the accused may bring further testimony. When the Court has ascertained that the aforementioned conditions are met, and that the admission of guilt together with the evidence presented suffice to establish “all the essential facts that are required to prove the crime to which the admission of guilt relates”, the Court my convict the accused. If the Court is not convinced that these conditions are met, then it shall consider the admission of guilt as not having been made, and the Court will order that the trial continue under normal trial rules. Under Article 65(4) the Trial Chamber may, in the interests of justice, decide either to hear further testimony or to order that an ordinary trial continue and that the admission of guilt be seen as not having been made. The interests of justice that are to be taken into consideration are general interests as well as the particular interests of the victims. This Article allows the Court to fulfill its role as a forum in which the evidence on these most serious crimes of international law can be presented to the public. According to Rule 139, after having proceeded in accordance with Article 65(1), the Court may invite the views of the Prosecutor and the defence as to whether to proceed in accordance with Article 65(4). Thereafter, the Trial Chamber shall render a reasoned decision on the admission of guilt which shall be placed on record.1116 Article 65(5) of the Statute states that: “any discussion between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court”.

1113

Ibid., Article 65(1)(c)(i). Ibid., Article 65(1)(c)(ii). 1115 Ibid., Article 65(1)(c)(iii). 1116 Rule 139(2). From the jurisprudence established by the ICTY, it follows that in case of an admission of guilt, an accused may not be found guilty of charges he did not plead guilty to. In the Jelisic case, the Appeals Chamber found that “the Trial Chamber erred in finding the cross-appellant guilty of two murders under counts 16 and 17 of the second amended indictment when he in fact pleaded guilty to only one of the murders, . . .” see Prosecutor v. Jelisic, Appeal Judgement, above note 402, para. 133. 1114

242

chapter iv

While this Article does not prohibit such plea-bargains between the accused and the Prosecutor, but whatever it’s content, the Court may set it aside or accept it. Plea-bargains are possible, however, the Prosecutor has little to offer to the accused other than a promise for a recommendation for a less severe sentence.1117 The experiences of the ICTY has shown that despite the fact that the Court is not bound by, plea-bargains are still agreed upon.1118 The first sentencing judgement of the ICTY came after a plea bargain.1119 This same case also highlighted the problematic nature of plea-bargains, especially in international criminal law. The accused pleaded guilty to committing crimes against humanity rather than to committing war crimes, and was consequently sentenced for crimes against humanity entailing a harsher sentence. The majority of the Appeals Chamber stated that: “Although the Appellant did repeat his plea of guilty on several occasions, he remained on each of these occasions, and probably even to this day, ignorant of the true nature of each of the two charges against him, as it was never adequately explained to him either by the Trial Chamber or by defence counsel.”1120

The Appeals Chamber noted that crimes against humanity are intrinsically more serious than war crimes, and decided that: “We, therefore, hold that the Appellant’s plea was not the result of an informed choice. He understood neither the nature of the charges nor the distinction between the two alternative charges and the consequences of pleading guilty to one rather than the other. It thus follows that the Appellant must be afforded an opportunity to replead to the charges with full knowledge of these matters.”1121

The accused eventually pleaded guilty to war crimes before a new Trial Chamber.1122 This case highlights that the process resulting in a guilty plea, and a plea-bargain specifically is not to be taken lightly. If a similar case comes before the ICC, it will be faced with a choice of whether to accept the withdrawal of the other charge. The Court may decide that it accepts the admission of guilt, but refuse to accept the withdrawal of the other charge.1123 1117 Fabricio Guariglia, Proceedings of an Admission of Guilt, in COMMENTARY ON THE ROME STATUTE, above note 7, at 831. 1118 For example, Prosecutor v. Cesic, ICTY Case No. IT-95-10, Plea Agreement, 8 October 2003. 1119 Erdemovic Sentencing Judgement I, above note 135. 1120 Erdemovic Judgement II, above note 76; Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 18. 1121 Ibid., para. 27. 1122 Erdemovic Sentencing Judgement III, above note 177. For other cases of accused who plead guilty, see Prosecutor v. Todorovic; ICTY Case No. IT-95-9/1, Prosecutor v. Sikirica, ICTY Case No. IT-95-8; Prosecutor v. Simic, ICTY Case No. IT-95-9/2, Prosecutor v. Plavsic, ICTY Case No. IT-00-39 & 40/1. 1123 Article 61(9). On the issue of plea-bargaining, see Nancy Amoury Combs, Copping

the trial

243

The ICTY consistently held that a guilty-plea, including one within the framework of a plea-bargain, is considered a mitigating factor. In the Cesic judgement for example: “8. The Trial Chamber accepts that the guilty plea helps to establish the truth and may aid the process of reconciliation in the Brcko municipality. More particularly, a guilty plea, whereby an accused recognises his/her responsibility and specifies the circumstances in which the crimes were committed, is likely to provide a sense of relief to the surviving victims and the victims’ relatives and friends. A guilty plea also saves the witnesses from the possible trauma of re-living the events when testifying in court. 59. In this case, the plea was entered some sixteen months after the initial appearance of the Accused, but nevertheless still before the commencement of trial, thereby saving time, effort and resources. The jurisprudence of the Tribunal has accepted that this factor counts in mitigation of punishment. 60. Under these circumstances, the Trial Chamber finds that the guilty plea in the present case is an important mitigating circumstance.”1124

9. Grounds Excluding Criminal Liability If the defence wishes to raise a ground for the exclusion of criminal liability under Article 31 of the Rome Statute, the defence must give notice to the Trial Chamber and to the Prosecutor sufficiently in advance in relation to the scheduled beginning of the trial, this in order that the prosecution may prepare adequately for trial. Following such notice, the Trial Chamber shall hear both the Prosecutor and the defence before deciding whether the defence can raise grounds for excluding criminal responsibility.1125 Considering the rights of the accused, if the defence can show prima facie that there is a case for the exclusion of criminal liability, the defence must be allowed to raise such grounds. Any factual issue will be left for trial. However, if the ground for excluding criminal responsibility can be dismissed on a question of law, there is no reason why the Court could not decide that question of law before the commencement of the trial. If the Trial Chamber decides to allow the defence to raise such grounds, the Chamber may grant an adjournment to the prosecution for it to address these grounds. a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa. L. Rev. 1 (2002); Theresa Marie Clark, Transplant Justice?: The Efficacy of a Purely Common Law Concept in the International Criminal Forum, 9 Buff. Hum. Rts. L. Rev. 75 (2003), (hereinafter “Transplant Justice?”) 88–110. Also see Prosecutor v. Sikirica and Others, ICTY Case No. IT-95-8, Sentencing Judgement, 13 November 2001. 1124 Prosecutor v. Cesic, ICTY Case No. IT-95-10, Sentencing Judgement, 11 March 2004. 1125 Rule 80.

chapter iv

244

10. The Participation of Victims in the Proceedings Compared to previous or existing international criminal proceeding, the Rome Statute has taken a radically different approach to the status of victims, and particularly to victim participation in the proceedings. The Statutes of the ICTY and the ICTR do not allow for the victims to participate in person in the proceedings. The assumption was that the Prosecutor represents the interests of the international community as a whole, and that those interests include the interests of the victims.1126 The Rome Statue grants the victims the potential right,1127 where their personal interests are affected, to submit their views and concerns to the Court, as long as the victim’s participation is not inconsistent with and does not prejudice the rights of the accused to a fair and impartial trial.1128 10.1

The Definition of “Victim”

The term “victim” is not defined by the Rome Statute but by Rule 85 of the Rules of Procedure and Evidence which differentiates between two types of victims: natural persons and organizations or institutions. Natural persons are considered “victims” when they have “suffered harm as a result of the commission of any crime within the jurisdiction of the Court”.1129 Organization or institutions may also be considered victims, if they have “sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes”.1130

The definition of “victim” provided by Rule 85 is problematic in several respects. First, the definition presupposes that a crime has been commit1126 Claude Jorda, and Jérôme de Hemptinne, The Status and Role of the Victim, in THE ROME STATUE OF THE ICC, above note 669, at 1387–1388. 1127 Ibid., at 1405. 1128 Article 68(3) states: “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence”. The wording of this Article, relies heavily on General Assembly Declaration 40/34 on Basic Principles of Justice for Victims of Crime and Abuse of Power (Doc A/RES/40/34, 29/11/1985), (hereinafter “Declaration of Basic Principles of Justice for Victims”). See Claude Jorda and Jérôme de Hemptinne, The Status and Role of the Victim, in THE ROME STATUE OF THE ICC, above note 669, at 1404. 1129 Rule 85(1). 1130 Rule 85(2).

the trial

245

ted, before the crime has been proven in Court, casting shadow on the presumption of innocence.1131 According to Rule 89(2), a Chamber may reject the application of a “victim” if it considers that the applicant does not fulfill the criteria required to be considered a “victim”. Upon an application of a victim, the Court will decide whether “the victim has suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. In deciding whether a “victim” has standing, the Court will have to deal both with the question of whether a crime was in fact committed and whether the crime is within the jurisdiction of the Court, the former being a matter more appropriate for the main proceedings rather than during an application by a victim. It seems that the only way this provision can be interpreted so as not to infringe on the accused’s rights, is that Rule 85 refers to a prima facie claim that a crime within the jurisdiction of the Court has been committed. Second, Rule 85 does not limit the participation of victims to those, which were affected by the specific acts underlying the trial. Rules 85 and 89 refer to victims in general, and not to victims of alleged crimes in the specific case and may lead to the conclusion that that any victim may participate in any trial. Rules 85 and 89 have to be seen jointly with Article 68(3) limiting the rights of victims to participate in the proceedings “where the personal interests of the victims are affected”. If the “victim” is not a victim of the specific crime attributed to the accused, the victim does not have a personal interest, and consequently lacks standing. A further difficulty derives from the definition of the term “harm”. Rule 85 does not define the nature or the extent of “harm’, and leaves it to the discretion of the Court. The two main questions that are likely to arise with regard to the definition of “harm” relate to the degree of harm necessary in order to qualify as a victim and how direct the harm must be.1132 For instance, an accused is a member of a given ethnicity and is tried for the crime of genocide. The person applying to qualify as a “victim” is a member of the “other” ethnicity which has undoubtedly been the victim of a “crime under the jurisdiction of the Court”. However, the specific applicant and his close family and relatives, were not directly harmed by the genocide. The killing and maiming of people within the applicant’s village

1131 See Claude Jorda, and Jérôme de Hemptinne, The Status and Role of the Victim, in THE ROME STATUE OF THE ICC, above note 669, at 1403. 1132 The Declaration of Basic Principles of Justice for Victims defined harm as “including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights”. See Declaration of Basic Principles of Justice for Victims, above note 102, at para. 1. Also see Human Rights Watch, Commentary to the Preparatory Commission on the International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, July 1999, at 24.

246

chapter iv

and community, as well as the horrors reported by the media, led to some degree of psychological damage to the applicant. Prima facie, it seems that the person having suffered some psychological, fulfills the criteria to be considered a “victim”. The applicant was “harmed” as a result of the commission of a crime under the jurisdiction of the Court (genocide), as he suffered psychological damage. In any case of genocide, there would be a substantial number of persons having suffered some sort of “harm”. If every person who suffered any kind of harm qualifies as a victim and is allowed to participate in the proceedings, the conduct of the trial might be severely hampered which has implications on the right of the accused to a fair trial to take place without undue delay pursuant to Article 67. It is most likely that the Court will interpret Rule 85 so as to require that the victim must have suffered “direct” harm as a result of the crime allegedly committed by the accused at the specific trial. The criteria of directness should remain flexible and be adaptable to the nature of the crime. The Court would still have the ample discretion to give proper consideration to the views of the victims, although limiting victim’s participation to instances where their personal interests were affected. In the framework of the elaboration of the Rules of Procedure and Evidence, Amnesty International suggested a much broader definition of “victim”,1133 which specifically referred to both direct and indirect harm, although acknowledging that such wording was deemed to be overly inclusive.1134 Moreover, Amnesty International suggested that family members of victims should also qualify as “victims” before the Court.1135 This proposal was only partially incorporated into Rule; 89(3) allowing applications “by a person acting with the consent of the victim or a person acting on behalf of the victim, in the case of a victim who is a child or, when necessary, a victim who is disabled.”1136

1133 “1. “Victim” means any person or group of persons who individually or collectively, directly or indirectly, suffered harm as a result of crimes within the jurisdiction of the Court. 2. “Harm” includes physical or mental injury, emotional suffering, economic loss or substantial impairment of fundamental rights.” Amnesty International, The International Criminal Court: Ensuring An Effective Role for Victims, AI Index: IOR 40/10/99 ( July 1999), 8. 1134 Ibid. 1135 Ibid., basing its proposal on The Declaration of Basic Principles of Justice for Victims, above note 102, at par. 2 which states that: “The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization”. 1136 For another proposed definition of “victim” see David Donat-Cattin, Protection of Victims and Witnesses and their Participation in the Proceedings, in COMMENTARY ON THE ROME STATUTE, above note 7, at 885.

the trial 10.2

247

Application for Participation of Victims

Rules 89–93 deal with the participation of victims in the proceedings. A written application of the victims has to be submitted to the Registrar, who will transmit it to the relevant Chamber. Subject to the provisions of the Statute and in particular Article 68(1) on the protection of victims and witnesses, the Registrar supplies copies of the request to the Prosecutor and the defence, who have the opportunity to respond to the request within the time limit set by the Chamber.1137 Unless the application is rejected under Article 68(2), the Chamber specifies the proceedings and manner in which the victims’ participation is considered appropriate.1138 If the application is rejected, the victim is not prevented from filing an application at a later stage of the proceedings.1139 The views and concerns of the victims “may be presented by legal representatives of the victims”,1140 if the Court considers it appropriate. Rule 90(1) states that “a victim shall be free to choose a legal representative”. Under Article 68(3), the Court may decide that the legal representation of a victim is inappropriate in a specific case. The might be situation where there are a substantial number of victims requesting to participate in the proceedings. In order to assure a fair and expeditious trial and thus safeguard the rights of the accused, the Court may rely on the provisions outlined in Rules 89(4) and 90(2)–90(5). Rule 90(2) states that for the purpose of ensuring the efficiency of the proceedings, the Chamber may request the victims or particular groups of victims to choose one or more common legal representative. The Registrar assists the victims by referring them to a list of counsel maintained by the Registry, and if necessary by suggesting legal representatives.1141 If the victims are unable to choose a common representative within the timeframe provided, the Chamber may request the Registrar to do so.1142 The Court and the Registrar will take all reasonable measures to ensure that the specific interest of every victim is represented and that there be no conflicts of interest.1143 Victims that have different and conflicting interests may not be represented jointly. However, not every slight difference between the victims shall suffice for the Court to allow separate representation. The question of what is reasonable shall depend on the specific proceeding and on the number of victims who wish to participate. A victim, or a group of victims, lacking

1137 1138 1139 1140 1141 1142 1143

Rule 89(1). Ibid. Rule 89(2). Article 68(3) of the Rome Statute. Rule 90(2). Rule 90(3). Rule 90(4).

248

chapter iv

sufficient means to pay for a common legal representative chosen by the Court, may receive financial assistance from the Registry.1144 A victim or a group of victims selecting legal counsel by themselves, are not entitled to financial assistance. Although the Statute does not say so explicitly, victims may not represent themselves before the ICC,1145 unless the victim meets the qualifications required to serve as counsel for the defence. Rule 91 deals with the participation of victims and legal representatives in the proceedings. Rules 92 and 93 specifically refer to both victims and the legal representatives concerning their right to receive notification and to express views. Victims and the legal representative may attend and participate in the proceedings.1146 This participation shall include hearings unless the Chamber before which the case is heard, believes that the representative’s intervention should be confined to written observations or submissions. In any case, the Prosecution and the defence shall have the right to reply to any written or oral observation of the legal representative for the victims.1147 When the legal representative wishes to examine a witness, an expert or the accused, he or she must make an application to the Chamber. The Chamber may require that the legal representative submit the questions that he or she wishes to ask in written form, and in that case the questions shall be communicated for observations within a time limit decided upon by the Court to the Prosecutor, and where appropriate, to the defence.1148 The Chamber will then issue a ruling on the matter in view of “the stage of the proceedings, the rights of the accused, the interests of the witnesses, the need for a fair, impartial and expeditious trial . . .”.1149

If the Chamber deems it appropriate, it may itself put the questions to the witness, expert or accused.1150 According to Rule 93, a Chamber may seek the views of victims or their legal representatives participating under Rules 89 to 91 on any question which relates to issues referred to in the Rules outlined in Rule 93.1151 The Chamber may also seek the views of other victims.1152

1144

Rule 90(5). Under Rule 90(1), “A victim shall be free to choose a legal representative”. 1146 Rule 91(2). The restrictions provided by this Rule shall not apply to a hearing limited to reparations under Article 75 of the Rome Statute. See Rule 91(4). 1147 Ibid. 1148 Rule 91(3)(a). 1149 Rule 91(3)(b). 1150 Ibid. 1151 These include issues referred to in Rules 107, 109, 125, 128, 136, 139 and 191. See also Rule 93. 1152 Ibid. 1145

the trial 10.3

249

The Victim as a Witness

An issue that will most likely arise before the ICC, is the relationship between the victim a witness in the trial and the potential right of the victim to participate in the proceedings before the Trial Chamber. Despite its importance, this issue is not directly addressed in the Rome Statute or in the Rules of Procedure and Evidence. However, Rule 143(3) states that: “unless otherwise ordered by the Trial Chamber, a witness . . . shall not be present when the testimony or another witness is given . . .”

In most cases, it is to be expected that the Prosecution will call the victims as witnesses, and as such any participation of the victim in the proceedings prior to his or her testimony will be problematic, despite the fact that the victim participation does not exclude the testimony altogether, but is considered as a factor by the Trial Chamber when evaluating the evidence. Despite the fact that it has been suggested that “in order fully to safeguard the rights of the accused, it will be necessary to ensure that a victim may not simultaneously be a witness and a party in one and the same case”,1153 it seems that the interests of the accused are generally safeguarded by the fact that the victim’s testimony will be evaluated according to the fact that the victim has heard other testimony. If the victim has already heard most of the evidence in the case, then it is to be expected that the testimony will be granted little or no weight in the final decision. There may be a conflict between the interests of the Prosecutor and the victims. The Prosecutor may wish to summon the victim to testify, and due to the importance of the testimony to the case, and avoid that the testimony be granted less weight for the witness having heard other testimony. While in some cases, it might be possible to accommodate the wishes of the victim and allow him or her to testify first in order to be able to participate in the rest of the proceedings, this will not be possible in all cases. In such instances, the Trial Chamber will be faced with the question of how to proceed. Some possible solutions include the Court utilizing its power under Rule 89(1) to “specify the proceedings and manner in which participation is considered appropriate”, that is to order that the victim may only participate after his or her testimony, to order that the witness gives testimony which shall be recorded before the victim hears other testimony,1154 or to confine the intervention to written observations or submissions.1155

1153 Claude Jorda and Jérôme de Hemptinne, The Status and Role of the Victim, in THE ROME STATUE OF THE ICC, above note 669, at 1409. 1154 Article 69(2) of the Rome Statute. 1155 Rule 91(2).

250

chapter iv 11. Evidence

The Rome Statute and the Rules of Procedure and Evidence allow the Court extensive discretion in the admission of evidence. Evidentiary matters1156 before the ICC are governed mostly by Article 69 of the Rome Statute and in Chapter 4 Section I of the Rules of Procedure and Evidence, which apply in proceedings before all Chambers.1157 However, the ICC shall not apply national rules governing evidence, except under Article 21 of the Statute,1158 providing, that after the Court does not find an answer to a question in International Law, it may, under specific conditions, apply “general principles of law derived by the Court from national laws of legal systems of the world . . .”1159 Evidence is submitted to the Court at the initiative of the parties or at the request of the Court. The accused has the right to receive “evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.”1160

This right allows the Court to ensure that the principle on equality of arms is applied in effect. Seen from a different perspective, the assignment of the Prosecutor to gather to gather inculpatory as well as exculpatory evidence would be meaningless if it such evidence was to remain undisclosed. The parties may submit any evidence which is relevant to the case and is considered admissible,1161 and the Court may request the submission of all evidence that it deems necessary for the determination of the truth.1162 Thus, the two basic rules governing the submission of evidence are admissibility and relevance. It should be noted that in the context of the ICTY, relevance is referred to as an element of admissibility,1163 in the Rome Statute, relevance and admissibility may be ruled upon independent of one 1156 On the definition of “evidence”, see Ilias Bantekas and Susan Nash, INTERNATIONAL CRIMINAL LAW, Cavendish Publishing (2003), at 289. 1157 Rule 63(1). 1158 Rule 63(5). 1159 For a discussion of the general principles, see above at 186 to 201. 1160 Article 67(2) of the Rome Statute. 1161 Article 69(3) of the Rome Statute. Article 67(1)(h) recognizes the right of the accused to make an unsworn oral or written statement in his or her defence, This right is has no precedent in international instruments. However, it is unclear what weight the Court may give an unsworn statement; whether to treat it as sworn testimony, as evidence, or as something even less than that, will have to be determined by the Court. See William A. Schabas, The Rights of the Acuused, in COMMENTARY ON THE ROME STATUTE, above note 7, at 862. 1162 Article 69(3) of the Rome Statute. 1163 Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at Chapter 4.2.

the trial

251

another.1164 From the wording of Article 69(4), it follows that evidence will be considered relevant if it has probative value, and admissible unless it prejudices the fairness of the trial or of the evaluation of the testimony of a witness’s. 11.1

Defence Counsel and Collection of Evidence

In order to defend the accused person, defence counsel has to gather evidence to counter the accusations of the prosecution. To do so, he needs get acquainted with the circumstances and the location where purported event took place and, depending on the case, the background of the conflict. This can potentially be any place on the globe, depending where the purported crime(s) was said to be committed. The crimes within the jurisdiction of the Court are by their nature related to politically or racially motivated conflicts with all their implications when collecting evidence. National or international conflicts in the area might be ongoing or the situation has calmed down, and if the “criminal” was or is their enemy, the national authorities, although formally cooperating as that is what they undertook when ratifying or acceding the Rome Statute, may make the task of a defence counsel searching for evidence very difficult. Witnesses will have to be located, if there were any. The defence counsel will have to make the investigation and find materials and documents as a piece of evidence or a key witness may change the outcome of a trial. When exercising their functions, defence counsel and persons assisting him/her, will need entry into foreign countries and access to documents, they may be at risk, and require protection not less so for documents and materials relating to their function. Further, the Statute and the Rules contain provisions in order to enable the person to prepare his or her defence. Article 57(3)(b) of the Statute provides that the Pre-Trial Chamber may, upon request of the person arrested or that appeared pursuant to a summons,1165 issue the necessary orders, including measures described in Article 56,1166 or seek cooperation pursuant to Part 9.1167 Such measures and orders 1164

Under Article 69(4): “The Court may rule on the relevance or admissibility of any evidence” (emphasis added). Compare with Rule 89 of the Rules of Procedure and Evidence of the ICTY provides that: “A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”. For more detailed discussions on relevance and admissibility of evidence, see below at 254–255. 1165 Article 57 of the Rome Statute. 1166 Article 56 relates to the Role of the Pre-Trial Chamber in relation to a unique investigative opportunity. 1167 Part 9 covers international cooperation and judicial assistance.

252

chapter iv

may concern testimony or statement of witnesses,1168 the collection of evidence, the preservation of evidence,1169 the questioning of a person,1170 the appointment of an expert,1171 and measures to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.1172 It is the duty of the Registrar to “provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence” and to “provide the defence with such facilities as may be necessary, on relevant defence related issues”.1173

Rule 20 (2) states that the “Registrar shall carry out the functions stipulated, including the financial administration of the Registry, in such manner as to ensure the professional independence of the defence counsel”.1174 Article 48 of the Statute is the basis of privileges and immunities granted to defence counsel, although necessary and relevant when performing its functions everywhere, they are particularly meaningful when gathering evidence in far away countries. The article reads in part: “The Court shall enjoy in the territory of each State Party, such privileges and immunities as necessary to the fulfilment of its purposes. . . .”1175 Counsel, experts, witnesses or any other person required to be present shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court”.1176

Such privileges and immunities are granted in the territories of each state party to the Rome Statute.1177 Under Article 18 of the Agreement on the Privileges and Immunities of the International Criminal Court adopted on September 9, 2002, counsel and persons assisting defence counsel enjoy

1168

Article 56(1)(a) of the Rome Statute. Ibid., Article 57(3)(c) and 56(2)(f ). 1170 Ibid., Article 56(2)(e). 1171 Article 56(2)(c). 1172 Article 56(1)(b). 1173 Rule 20(1)(b). 1174 Although the Presidency is responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor (Article 38 of the Statute), a strong international criminal bar association should be established. It could intervene in situations where the rights of the defence are at stake. In order to prevent conflict of interest, its president and board members should be retired experienced lawyers not on the Registrar’s list of counsels. 1175 Article 48(1). 1176 Article 48(4). 1177 Agreement on the Privileges and Immunities of the International Criminal Court, Preamble, paragraph 3, ICC-ASP/1/3 (in force since 22.07.2004). 1169

the trial

253

privileges, immunities and facilities to the extent necessary for the independent performance of their functions, including when traveling for that purpose.1178 Among others, the protection afforded is “Immunity from personal arrests or detention and from seizure of personal baggage; Immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in their official capacity . . .; Inviolability of papers and documents in whatever form and materials relating to the exercise their functions; . . . the right to receive and send papers and documents in whatever form;1179 . . . Exemption from inspections of personal baggage . . .;1180 The same repatriation facilities in time of international crisis as accorded to diplomatic agents under the Vienna Convention”1181 (footnotes added).

Compared to the situation of defence counsel of the ICTY and ICTR, there has been some improvement, but it is still a far cry from the international accreditation of the Prosecutor, and equality of arms seems to be applicable to the proceedings before the Court only. It should be mentioned as of now that the ICC system of evidence does not exclusively rely on evidence presented by the parties. Unlike in purely adversarial systems, the Trial Chamber has the power to “order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties”.1182

This power is clearly an influence of civil law on the Statute,1183 although similar provision exists in certain adversarial systems. It is clear from the wording of the Article, that the Court may require additional evidence after the presentation of the evidence by the parties. Further, the Court

1178 The privileges and immunities of the counsel and person assisting defence counsel may be waived by the President (Article 26 of the Agreement on the Privileges and Immunities of the International Criminal Court). 1179 This must refer to electronic means of correspondence. 1180 Unless there are serious grounds for believing that they contain articles whose import or export is prohibited by law or that are subject to quarantine regulation. In such case the inspection is made in the presence of the counsel. 1181 Article 44 of the 1961 Vienna Convention on Diplomatic Relations reads: “The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property”. 1182 Article 64(6)(d) of the Statute. 1183 Gilbert Bitti, Functions and Powers of the Trial Chamber, COMMENTARY ON THE ROME STATUTE, above note 7, at 820; Michele Caianiello and Giulio Illuminati, From the ICTY to the ICC, above note 1051, at 448.

254

chapter iv

may request the parties to submit “all evidence that it considers necessary for the determination of the truth”.1184 The request of the Court is issued in the interests of truth and justice,1185 and not in the interest of either of the parties. The extent to which the Court will resort to this provision, will reflect its shifting from the passive adversarial trial to a more active role of the Court. It may also decide to leave this provision as an exception to the rule. The experience of the ad hoc Tribunals shows an increasingly active role played by the Court in obtaining evidence.1186 11.2

Relevance and Admissibility of Evidence

The Chamber has the power to rule on issues of admissibility and relevance of evidence,1187 either upon application of a party or on its own motion.1188 In principle, issues relating to relevance and admissibility of evidence are to be raised at the time when the evidence is submitted to the Chamber. The exception is, that if the questions raised were not known at the time of the submission, they may exceptionally be raised immediately after it become known.1189 Matters relating to relevance and admissibility of evidence are be submitted in writing if the Chamber so requires, in which case the motion shall be communicated by the Court to all the participants in the proceedings, unless otherwise decided by the Court.1190 In determining the relevance or admissibility of evidence, the Chamber may assess freely all evidence submitted.1191 According to Rule 64(2), the Chamber’s ruling on the matter shall be motivated and incorporated into the record of the proceedings irrelevant or inadmissible evidence “shall not be considered by the Chamber”.1192 The approach adopted by the ad hoc Tribunals with regards to the admissibility of evidence has been one of great freedom in the evaluation of evidence.1193 In the Blaskic case, the Court described the approach as follows:

1184

Article 69(3). Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1296. 1186 Ibid. 1187 Article 64(9). 1188 Ibid. 1189 Rule 64(1). 1190 Ibid. 1191 Rule 63(2). 1192 Rule 64(3). 1193 Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 93–94. On the historical trials and the rationale for the approach, see ibid., at 94–98. On the evaluation of evidence by the ICTY Trial Chamber, see Prosecutor v. Aleksovski, ICTY Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 63–64. For a detailed description of the considerations pertaining to the evaluation of evidence, 1185

the trial

255

“The admissibility of the evidence presented at trial was also the subject of Decisions on several occasions. The principle embodied by the case-law of the Trial Chamber on the issue is the one of extensive admissibility of evidence— questions of credibility or authenticity being determined according to the weight given to each of the materials by the Judges at the appropriate time”1194

11.3

Reliability

In the context of the ICTY, there is a major debate on whether the reliability of evidence should be a factor in the determination of admissibility.1195 In the Kordic case, the Appeals Chamber of the ICTY took the view that the reliability of evidence is relevant in the determination of the admissibility of the evidence.1196 However, May and Wierda, take the view that in the context of an international tribunal, reliability should be considered as a component of the evidence when determining its weight.1197 In separating admissibility from relevance, and not addressing reliability as a separate component in determining whether the Court should accept a given evidence, it seems that the Statute has taken the position that reliability is not, in fact, a separate factor. In the Kordic case, the Appeals Chamber stated that “A piece of evidence may be so lacking in terms of the indicia of reliability that is not ‘probative’ and is therefore inadmissible.”1198

Reliability constitutes “the invisible golden thread that runs through all components of admissibility”;1199 evidence which is unreliable to the extent that it lacks any probative value should be excluded by the Court.

see Prosecutor v. Brdjanin, ICTY Case No. IT-99-36-T. Judgement, 1 September 2004, para. 20 to 36. 1194 Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Judgement, 3 March, 2000, para. 34. 1195 Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 107–111. 1196 Prosecutor v. Kordic and Cerkez, ICTY Case No. IT-95-14/2, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, (hereinafter “Kordic Appeals Chamber Decision”). See also Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54-T, Decision on Prosecution Motion for the Admission of Witness Statements Relevant to Events in Gacko, Visegrad, Zvornik and Sanski Municipalities in Lieu of Viva Voce Testimony Pursuant to Rules 54 and 92bis, 31 October 2003. 1197 Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 109–110. This is not merely a question of timing, a decision on admissibility is made on a specific piece of evidence treated in isolation, and not examined in the final analysis. If evidence is admitted and weighed later, this is done in light of all the other evidence presented at the trial. 1198 Kordic Appeals Chamber Decision, above note 1085, para. 24. 1199 Ilias Bantekas and Susan Nash, INTERNATIONAL CRIMINAL LAW, above note 1156, at 289. For an example of evidence the reliability of which was not sufficiently established, see Prosecutor v. Cesic, ICTY CASE No. IT-95-10/1-S, Sentencing Judgement. 11 March 2004. On allegations of fabrication of evidence and collusion among witnesses, see

chapter iv

256 11.4

Custody of Evidence

According to Rule 138, Evidence submitted to the Court during the trial proceedings and any “other materials offered during the hearing” shall be retained and preserved by the Registrar, unless the Court orders otherwise. 11.5

Language of Evidence and its Translation

While there are six official languages of the Court, the working languages are English and French.1200 The Statute and the Rules do not directly relate to the language in which evidence shall be submitted to the Court, but the nature of the International Criminal Court requires that evidence be admitted, regardless of the language of the original piece of evidence. In cases where all sides to the proceedings (including the Court itself ), are fluent in the language in which the evidence is presented, such evidence does not raise any particular question. However, it seems that in most cases, while the evidence must naturally be presented to the Court in its original form, regardless of the language, such evidence will have to be translated into one of the working languages, so that the Court and all sides to the proceedings may understand the evidence. The rights of the accused with regards to the language of the evidence presented to the Court are provided in Article 67(f ), which states that the accused shall have the right “To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks”.1201

The right to have an interpreter is closely linked to the right of the accused to examine witnesses,1202 to be present at the trial1203 and the duty of the Court to insure a “fair” trial.1204 The Court may refuse to allow translation of the proceedings or documents for the accused, free of any cost, if the

Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I, Judgement and Sentence, 15 July 2004, para. 110–112, 1200 Article 50(2). The Court may also choose to use another language as a working language. 1201 Article 67(f ) of the Statute. 1202 Article 67(e) of the Statute. This right is particularly important in the context of cross-examination. If the accused does not understand the testimony, there is no way to effectively cross-examine the witness regarding his/her testimony. 1203 Article 63 and Article 67(d) of the Statute. An accused who is physically “present” during the trial, but who does not understand what is being said or does not understand the terms of the evidence presented, may not be considered “present” in any meaningful way. 1204 Article 64(2) of the Statute.

the trial

257

Court finds that such translations are not “necessary to meet the requirements of fairness”.1205 It is difficult to conceive a situation where it would be permissible not to translate evidence into a language understood by the accused, barring a situation where the accused has a legal representative who understands the language and the accused waives his/her right to translation.1206 In the context of the ICTY it was decided that: “all exhibits which the parties intend to submit for admission shall be available in a language the accused understands, as well as in at least one of the official languages of the Tribunal at the time of it being submitted to the Chamber for admission and that it is the responsibility of the party, intending to submit the document, to ensure that such translations are available.”1207

In another case, it was decided that motions, memoranda and correspondence, should be in a working language, and that transcripts of the proceedings are provided in the working languages as an aide-mémoire for courtroom participants, and as such the accused is not entitled to have these documents in his/her language. On the issue of discovery, it was stated that: “The rights of the accused are fully protected by ensuring that all evidence submitted at trial is provided in his language. The Trial Chamber finds that discovery provided by the parties to each other shall be in the original language of the document, if that is the language of the accused, or in one of the working languages of the International Tribunal. If the original language of the document is one other than the language of the accused or one of the working languages, discovery shall be in one of the working languages.”1208

These decisions were issued in the statutory context of the ICTY, which differs from that of the ICC in this regard,1209 and the ICC may be more liberal in granting translations then the ICTY, refusing translation of document for the accused only in extreme cases. It is the duty of the Court in the implementation of its obligations under the Statute and the Rules of Procedure and Evidence to ensure that translation and interpretation services are effectively available.1210

1205

Article 67(f ) of the Statute. See the Tadic Opinion and Judgment, above note 331. In case the relevant language is unknown to the legal representative, the requirements of fairness still require translation, particularly if credible translation of the language of the evidence cannot be obtained through normal channels. The need for the accused to understand the evidence is obvious, as he/she will have to respond to it. 1207 Prosecutor v. Naletilic and Martinovic, IT-98-34, Decision on Defence Motion Concerning Translation of all Documents, 18 October 2001. 1208 Delalic decision on Defence Application for Forwarding the Documents in the Language of the Accused, above note 948, para. 8. 1209 See Rule 3 of the Rules of Procedure and Evidence of the ICTY, Article 21(4)(f ) of the Statute of the ICTY. See also Article 20(4)(f ) of the Statute of the ICTR. 1210 Rule 42. 1206

258

chapter iv

During the course of the proceedings, challenges to translation may be raised. While these challenges were prevalent in the Post-WWII Trials, the experience before modern tribunals is that the interpretation has been generally reliable and challenges to the translation rare.1211 However, in some cases, these challenges may be critical for the outcome of a case when a mistaken translation alters the content of given testimony.1212 If such a challenge presents any merit prima facie, evidence should be allowed and a decision rendered on the correct translation. Challenges to translations are more important in case of translation of evidence into the language of the Court then in case of translation into a language understood by the accused. 11.6 Agreements on Matters of Evidence The Prosecutor and the defence may agree that an alleged fact, the contents of a document, the expected testimony of a witness or other evidence, is not contested. In such a case, the Chamber may consider the fact as being proven.1213 However, if the Chamber considers that a more complete presentation of the facts is required in the interests of justice, it may reject the agreement, particularly, in view of the interests of the victim.1214 11.7

Principles of Evidence in Cases of Sexual Violence

The Rules of Procedure and Evidence contain specific rules regarding evidence in cases of sexual violence. The Court shall be “guided by” and “where appropriate, apply the following principles”:1215 “Consent cannot be inferred by reason of any words or conduct of the victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent”.1216

1211 See Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 276. 1212 It must be assumed that translation errors were not made intentionally, as the interpreters and translators make a solemn declaration according to Rule 6.2 under which they declare that they will perform their duties faithfully and impartially. 1213 Rule 69. 1214 Ibid. There are similarities between this Rule and the provisions regarding proceedings on admission of guilt. In both cases the Court may ignore the fact that certain issues and facts are undisputed and demand that they be presented in open Court. 1215 Rule 70. See Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1294. 1216 Rule 70(a).

the trial

259

Moreover, where the victim is incapable of giving genuine consent, it cannot be inferred “by reason of any word or conduct of a victim”.1217 Even without the existence of these rules, consent which is not genuine or voluntary, should not be considered as constituting consent. Evidence in cases of sexual violence raises several complex issues. As mentioned, consent cannot be inferred by reason of silence, or lack of resistance by a victim to the alleged sexual violence.1218 While this rule is relevant to the factual question of “consent”, it is irrelevant to the question of the mens rea of the accused and his knowledge of the consent. Even if due to this principle, it is decided that the fact that the victim did not resist an act of sexual violence, does not imply that the victim consented to the act as a matter of fact, the question of silence or lack of resistance of the victim may still have great relevance in deciding the extent to which the accused had knowledge that the victim did not consent. A further specific Rule regarding evidence in cases of sexual violence is that “Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness”.1219

While this Rule is understandable with regards to credibility and character, less so in relation to the predisposition to sexual availability of a victim or witness. It is difficult to imagine how it would otherwise be possible to prove such predisposition of the victim or the witness. When the defence submits or elicits evidence relating to the Rules outlined above, notification must be given to the Court which shall include the evidence intended to be introduced or elicited and the relevance of the evidence to the case before it.1220 The Chamber will hear the views of the Prosecutor, the defence, the witness and victim and his/her legal representative in camera. Guided by the aforementioned rules, the Court will consider whether the evidence has probative value to the case before it, as well as the prejudice that such evidence may cause.1221 After the Court determined the admissibility of the evidence, it already saw the evidence, and therefore the relevance of prejudice is not clear. The rules of evidence before modern tribunals were drafted taking into account that professional judges, unlike a jury, have broad discretion in the admission of evidence. 1217 1218 1219 1220 1221

Rule Rule Rule Rule Rule

70(b). 70(c). 70(d). 72(1). 72(2).

chapter iv

260

The assumption is that the professional judge will not be prejudiced by such evidence. Where the Court finds the evidence admissible, the specific purpose for which the evidence is admissible shall be stated on record. In its evaluation of the evidence, the Court shall apply the aforementioned rules.1222 According to Rule 71, the Chamber shall not admit evidence of prior or subsequent sexual conduct of a victim or witness. It should be noted that this Rule is explicitly subject to Article 69(4) of the Statute, providing that the Court may rule on the relevance or admissibility of any evidence. Consequently, Rule 71 is not absolute and the Court may admit evidence of prior or subsequent sexual conduct upon determination of the relevance of the evidence to the case. There are two main arguments which may be raised against these provisions as a whole. The first one is that the Rules discussed are inconsistent with the rights of the accused, and therefore the rules should not apply as they are “prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.1223 The second argument is relevant in the context of the ad hoc Tribunals, not so at the ICC. The argument is that the Rules in this regard should be considered ultra vires, as they contain provisions which are not matters of evidence but are part of the definition of the crime itself.1224 The Rules of Procedure and Evidence for the ICTY and the ICTR were adopted by the Judges of the Tribunals, for the ICC they were adopted by the Assembly of State Parties. Nonetheless, it would have been preferable that these provisions were included in the Rome Statute. 11.8

Privileges

Article 69(5) states that “the Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence”.1225 Privileges are outlined in Rule 73. The first privilege to be respected by the Court is the privilege of confidentiality between a person and his or her legal counsel.1226 This privilege may only be waived by the person’s consent an in writing1227 or by the person’s voluntary disclosure to a third

1222

Rule 72(3). Article 68(1) of the Rome Statute. See also Article 51(5), which states that in cases of conflict between the Rules and the Statute, the Statute shall prevail. 1224 This argument especially refers to Rule 70, which in effect defines an element of sexual crimes, the lack of consent is therefore not merely a provision of evidence. 1225 Article 69(5). 1226 Rule 73(1). 1227 Rule 73(1)(a). 1223

the trial

261

party which then gives evidence of that disclosure.1228 Under certain conditions,1229 communications made in the context of other classes of professional shall have the same privilege. One of the conditions is that the communications were made in the course of a professional relationship which produces a “reasonable expectation of privacy”. An interesting point is that a “reasonable expectation of privacy” is not only a factor of the class of professional relationship, but also the laws of the state where the relationship takes place. A specific class of relationships may hold a “reasonable expectation of privacy” in one state due to the fact that the law in that state protects that class of relationship, while in another state the laws do not protect that class of relationships and therefore they do not produce a “reasonable expectation of privacy”. The Court will be faced with the issue of whether it will deal with the privileges of a class as a whole, or deal with the specific relationship in the case before it. Rule 73(3) states that in deciding upon further classes of professional privilege, the Court should give special regard to relationship between a person and his/her doctor, psychiatrist, psychologist or counselor, and the relationship, under certain circumstances, between a person and a member of a religious clergy.1230 A class of professional privilege that the Court would have to consider and which is not directly referred to by the Rules, is that relating to journalists. The question of compelling a war correspondent to testify was brought before the ICTY.1231 The Trial Chamber issued a subpoena to Jonathan Randal, a correspondent for the Washington Post in Yugoslavia, who decided to contest the subpoena. His objection was denied. He was subpoenaed to testify essentially on the accuracy of the quotations that had been published. The article contained quoted statements attributed to the accused. The Prosecution requested to admit these statements into evidence, and not to question him on his communications with his sources. Jonathan Randal was granted leave to appeal, and on appeal the decision of the

1228 Rule 73(1)(b). Although nowhere explicitly stated, communications and information exchanged between the investigator of the defence and counsel of the accused constitute privileged information not subject to disclose. 1229 See Rule 73(2). Rule 73(2)(c), includes the condition that “Recognition of the privilege would further the objectives of the Statute and the Rules”. It is difficult to anticipate the effect that this condition would have on the privileges. The Statute and Rules contain several main objectives, which often contradict each other, such as the rights of the victims, the rights of the accused, or the interests of justice, as well as other interests. 1230 Rule 73(2)(a). On the issue of the Priest-Penitent relationship, see Robert John Araujo, International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the “PriestPenitent” Privilege Under International Law, 15 Am. U. Int’l L. Rev. (2000), 639. 1231 Prosecutor v. Radoslav Brdjanin, ICTY Case No. IT-99-36-AR73.9, Decision on Motion to set Aside Confidential Subpoena to Give Evidence, 7 June 2002.

262

chapter iv

Trial Chamber was overturned.1232 After the Appeals Chamber rejected the Trial Chamber’s “pertinence” test,1233 it first applied a three-stage test in order to determine whether privilege is warranted. First, the Appeals Chamber examined the question of whether there is a public interest in the work of a war correspondent.1234 Second, it examined the question of whether compelling the correspondent to testify before the Tribunal would adversely affect their ability to carry out work.1235 Lastly, the Appeals Chamber examined the question of the appropriate test to balance “the public interest in accommodating the work of war correspondents with the public interest”1236 so to have “all relevant evidence available to the Court”.1237 The Appeals Chamber decided on a two-prong test: “First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere”.1238

The Prosecution filed a new motion before the Trial Chamber, which was denied according to the standards set by the Appeals Chamber. The article was, however, accepted into evidence.1239 The interesting point in this case is that Jonathan Randal was not to be questioned on his relationship with his sources, which is what journalistic privilege usually protects. The discussion in the case was much wider, as it related to a privilege for war correspondents from testimony in general. Another privilege is that granted to the ICRC. Anything that came into the possession of the ICRC as a result of the performance of its functions under the relevant Statutes is granted absolute privilege, including by means of testimony of “any present or past official or employee of the [ICRC]”.1240 Such privilege is waived only if such information or evidence is contained in public statements or documents of the ICRC or if, after consultations, the ICRC does not object in writing to the disclosure.1241 Rule 73(6) sets

1232 Ibid., Decision on Interlocutory Appeal, in the Brdjanin Case, above note 1097. See also Separate Opinion of Judge Shahabuddeen suggesting a different test. 1233 Ibid., para. 47. 1234 Ibid., para. 35–38. 1235 Ibid., para. 39–45. 1236 Ibid., para. 45–55. 1237 Ibid. 1238 Ibid., para. 50. 1239 Prosecutor v. Radoslav Brdjanin, ICTY Case No. IT-99-36-T, Decision on Prosecution’s Second Request for a Subpoena of Jonathan Randal, 30 June 2003. 1240 Article 73(4) of the Rome Statute. See Emily Ann Berman, In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals, 80 N. Y. U. L. Rev. (April 2005), 241. 1241 Rules 73(4)(a) and 73(4)(b).

the trial

263

out the method for consultations between the ICRC and the ICC. Thus, the Court does not have power to compel evidence, but only to “consult” with the ICRC. The ICTY stated that the rule granting confidentiality to the ICRC is one of international customary law, and as such granted confidentiality without a specific provision.1242 11.9

Consequences of Failure to Disclose Evidence

The Rules of Procedure and Evidence contain specific and detailed rules on disclosure of evidence,1243 however the only provisions regarding failure to disclose evidence is Rule 79 which deals with disclosure by the defence,1244 a provision which specifically addresses a question raised before the ICTY. In the Kupreskic case, it was decided that due to the failure of one of the accused to provide the required notice of alibi, evidence other than his testimony shall be excluded. The Court stated that: “while Vlado Santic himself may testify to the effect that he has an alibi, pursuant to Rule 67(B) of the Rules, if counsel does not file an appropriate alibi notice under Rule 67(A)(ii)(a) of the Rules, the evidence of other witnesses as to alibi is liable to be excluded by the Trial Chamber.”1245

In the context of the ICC, under Rule 79, failure to provide notice shall not limit the defence’s rights to raise the issues and present evidence. Precedents of the ICTY show that motions to exclude evidence that was either disclosed late or outside the time limits have generally been dismissed and the practical ramifications of such failures were minimal.1246 In the Furundzija case, the Prosecutor’s persistent violations during the pre-trial stage of the orders of the Court on the obligations of disclosure

1242 Prosecutor v. Simic, ICTY Case No. IT-95-9, Ex Parte Confidential Decision on the Prosecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999. On the waiver of privilege, see also ibid., Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, 7 June 2000, and Separate Opinion of Judge David Hunt. 1243 Rule 76–84. 1244 In case of alibi and grounds for exclusion of criminal liability, the defence is required to disclose information as well as the witnesses and evidence on which the defence will rely. On alibi evidence, see Prosecutor v. Muhimana, above note 440; see also Niyitegeka v. Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004. On the burden of proof regarding alibi, see Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 38–43. 1245 Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16, Decision, 11 January 1999. For reasons why a defence of alibi may be rejected, see Prosecutor v. Kunarac and Others, IT-96-23 & 23/1 Judgement, 22 February 200. 1246 Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 84.

chapter iv

264

eventually led to a formal complaint of the Trial Chamber.1247 The Prosecutor failed to disclose a document casting doubt on the memory of their main witness until after the close of the proceedings. In another case, the Trial Chamber referred to the Prosecutor’s conduct in the case and stated that “it is appalled by what it considers to be conduct close to negligence in the Prosecution’s preparation of this case.”1248 However, regarding the practical ramifications of such conduct, the Court rejected the defence’s positions that the testimony of the witness should be struck or that a new trial should be held.1249 The case law of the ICTY generally shows that in the early parts of the trial, violations of disclosure obligations generally lead to postponement, and as such the rights of the defence were not prejudiced. Even in the Furundzija case, where disclosure was central to the case and was effectuated only after the close of the proceedings, the remedy decided upon by the Court was a reopening of the trail and not the exclusion of the evidence. Therefore, the extent to which sanctions other than postponements will be imposed by the Trial Chamber, will depend on the extent to which the non-disclosure actually prejudiced the rights of the accused.1250 Where prejudice is caused to the accused, the matter should be granted greater weight due to the accused’s rights to a fair trial and his right to conduct his defence. In extreme cases, the Court may impose sanctions for misconduct,1251 as well as exclusion of evidence.1252 However, these sanctions are extreme and would probably require intentional non-disclosure and/or extreme prejudice suffered by the other side. 11.10

Judicial Notice

Article 69(6) of the Rome Statute states that the Court may take judicial notice of facts of common knowledge.1253 Accordingly, facts that are not

1247

Prosecutor v. Furundzija, ICTY Case No. IT-95-17/1-PT, The Trial Chamber’s Formal Complaint to the Prosecutor Concerning the Conduct of the Prosecution, 5 June 1998. 1248 Prosecutor v. Furundzija, ICTY Case No. IT-95-17, Decision, 2 June 1998. 1249 See Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 84–85. 1250 Ibid. 1251 See Article 71 of the Rome Statute. 1252 In order to exclude such evidence, the Trial Chamber may rely on Article 69(4) of the Statute which states that “The Court may rule on . . . the admissibility of evidence, taking into account inter alia . . . any prejudice that such evidence may cause to a fair trial” and Article 64(2) according to which “The Trial Chamber shall ensure that a trial is fair . . . and conducted with full respect for the rights of the defence”, which includes for the accused “to have adequate time and facilities for the preparation of the defence” (Article 67(1)(b)), and the right to disclosure (Article 67(2)). 1253 Similar provisions were contained in Article 21 of the Statute of the International

the trial

265

reasonably disputable do not need to be proven. The purpose of judicial notice is to expedite trials and to eliminate the need for the Prosecutor to prove facts that cannot be reasonably disputed. This provision differs from that of the ad hoc Tribunals, Rule 94(B) common to the two Tribunals provides that: “At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.”

The Rome Statute and the Rules of Procedure and Evidence do not contain a similar provision, the Chambers of the ICC are consequently limited to judicial notice of facts of common knowledge. In Kvocka et al. case before the ICTY, the Trial Chamber stated that: “it would be in the interests of judicial economy and would promote an expeditious trial for the Trial Chamber to take judicial notice of the adjudicated facts upon which the parties are agreed.”1254

However, in the case cited, defence counsel of one of the accused, objected to the Trial Chamber taking judicial notice of some of the facts, and the motion of the prosecution was granted as to adjudicated facts only. An issue that has been hotly debated before the ICTY is the extent to which the Court may take judicial notice of facts that contain legal components.1255 In the Simic case, the Trial Chamber stated that: “Rule 94 is intended to cover facts and not legal consequences inferred from them, that the Trial Chamber can only take judicial notice of factual findings but not of a legal characterization as such.”1256

In the Kvocka case, a Trial Chamber composed of different Judges (except for one) stated: “that even if Rule 94 is concerned only with judicial notice of facts and documentary evidence, no provision in the Statute or the Rules forbids the Trial

Military Tribunal of Nuremberg and in Rule 94(A) of the Rules of Procedure and Evidence of the ICTY and ICTR. See Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1293. 1254 Prosecutor v. Kvocka and Others, ICTY Case No. IT-98-30, Decision on Prosecutor’s Motion for Judicial Notice of Adjudicated Facts, 19 March 1999. See James Stewart, Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent, International Criminal Law Review (2003), at 267–8 (hereinafter “Judicial Notice”). 1255 Ibid., at 261. 1256 Prosecutor v. Simic, ICTY Case No. IT-95-9, Decision on the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999.

266

chapter iv Chamber, having taken account of the rights of the accused, from drawing legal conclusions based on facts thereby established beyond a reasonable doubt.”1257

Then, the Trial Chamber decided that: “it results necessarily and incontestably from the facts that the parties have agreed upon and which the Trial Chamber is taking judicial notice of, that there was an armed conflict, accompanied by a widespread and systematic attack on the Muslim and Croat civilian population, in the times and places alleged in the indictment; and it further is included in these agreed upon facts that the existence of the Omarska, Keraterm and Trnopolje camps and the mistreatment of the prisoners in those camps was linked to the armed conflict and to the widespread and systematic attack on the civilian population.”1258

Another Trial Chamber composed by the same Judges as in the Simic case stated that the Chamber is not bound by the decisions of other Trial Chambers, and that “it is not the purpose of Rule 94(B) to allow findings on contested matters of law at this stage of the proceedings, the purpose of Rule 94(B) being to narrow the factual issues in dispute in the relevant proceedings.”1259

Hence, there is no clear precedent regarding this issue, and the ICC will have to establish whether the taking of judicial notice is limited to factual findings only or if it may include matters of law. When the issue of the scope of judicial notice will arise before the ICC, the expectation is that the ICC will establish a proper balance between judicial notice and the rights of the accused.1260 In view of the provisions on judicial notice of the ICC and of the ad hoc Tribunal’s, the task of the ICC in this matter might be less complex that that of the ad hoc Tribunals. The rights of the accused, which are likely to be infringed by the taking of judicial notice,1261 include 1257

See for example the Kvocka Case, above note 1254. Ibid. 1259 Prosecutor v. Sikirica et al., ICTY Case No. IT-95-8, Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 27 September 2000. Before the ICTR too, conflicting decisions were rendered on this subject; see Prosecutor v. Semanza, ICTR-97-20-I, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000; Prosecutor v. Ntakirutimana and Others, ICTR-96-10-T, Decision on The Prosecutor’s Motion For Judicial Notice Of Adjudicated Facts, 22 November 2001, Prosecutor v. Kajelijeli, ICTR-98-44A-T, Decision On The Prosecutor’s Motion for Judicial Notice Pursuant To Rule 94 of The Rules, 16 April 2002, Prosecutor v. Ntagerura and Others, ICTR-99-46-T, 4 July 2002, Oral Decision, at 9. 1260 Rule 94(B) of the Rules of Procedure and Evidence of the ad-hoc Tribunals, raises issues that go beyond that of judicial notice before the ICC, such as the accused’s right to cross-examination, to face his accusers for example, which are prevented by the fact that judicial notice is not necessarily taken of facts which are notorious, but facts and evidence adjudicated in other cases. 1261 James Stewart, Judicial Notice, above note 1254, at 269. 1258

the trial

267

the right to raise defences and to present evidence,1262 and possibly the right not to have a reversal of the burden of proof imposed on the accused1263 and finally the right to a fair trial.1264 It is imperative that judicial notice be weighed against the rights of the accused in any case it arises. Where the rights of the accused tend to be negated to an extent unwarranted by the rationale for judicial notice (to ensure an expeditious trial), judicial notice should not be taken. While it has been suggested by the Prosecutor of the ICTR that a proper balance would be to establish a guideline whereas “facts judicially noticed do not go to prove the personal responsibility of any Accused person appearing at trial”,1265 this view was subsequently held to be too narrow.1266 In view of the number of pending cases before the ad hoc Tribunals, and unless such guidelines were established but not yet published, they should be established for purposes going beyond the issue of the proper balance between the rights of the accused and the advantages inherent in the taking of judicial notice. 11.11

Protection of National Security Information

Article 72, relating to the protection of national security information, is also relevant with regards to evidence before the Trial Chamber.1267 Thus, where in the subjective opinion of a state the disclosure of information or documents would prejudice its national security interests, the procedure outlined in Article 72 applies. This also applies when a person appearing before the Court, refuses to give information or evidence which might affect the national security interests of a state, and the state concerned confirms that in its opinion, the information or evidence would prejudice its national security.1268 Article 72 grants the relevant state the right to intervene in the proceedings.1269 Once an objection is raised, Article 72(5)

1262

Article 67(1)(e) of the Rome Statute. Ibid., Article 67(1)(i). 1264 Ibid., 64(2). 1265 James Stewart, Judicial Notice, above note 1254, at 269. 1266 Ibid., at 270–1. 1267 Article 72(1). 1268 Article 72(2). This article makes it clear that it is the state which has the final decision on disclosing such information or evidence. See Rodney Dixon and Helen Duffy, Protection of National Security Information, in COMMENTARY ON THE ROME STATUTE, above note 7, at 939, for a discussion of the various proposals advocated in the drafting of the Rome Statute and specifically the proposal of adopting the ICTY model of the Blaskic decision (Prosecutor v. Blaskic, ICTY Case No. IT-95-14, 18 July 1997, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenas Duces Tecum, para. 61–66). 1269 Article 72(4). 1263

268

chapter iv

states that the state, working together with the parties and the relevant Chamber1270 is to take “all reasonable steps” to resolve the issue, including possibilities listed.1271 Once all reasonable steps have been taken, if the state is of the opinion “that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests”, it shall so notify the Prosecutor or the Court and provide the specific reasons, “unless a specific description of the reasons would itself necessarily result in such prejudice to the state’s national security interest”.1272 Article 72(7) describes the measures available to the Court, if it deems the evidence “relevant and necessary for the establishment of the guilt or innocence of the accused”. If the disclosure relates to a request for cooperation under Part 9 of the Rome Statute, or is an issue dealt with by Article 72(2), the Court may refer the matter under Article 87(7) if it is of the opinion that “the requested state is not acting in accordance with its obligations under [the] Statute”.1273 Prior to reaching such a conclusions, the Court may request further consultations, including in camera and ex parte hearings.1274 The Court also may make inferences as to the existence or non-existence of a fact, as appropriate in the circumstances.1275 The circumstances referred to in Article 72(7)(b) lack clarity,1276 that is all those not covered by Article 72(7)(a). Such instances are expected to be rare,1277 and the Court may either order disclosure or, to the extent to which it does not order disclosure, make inferences “as to the existence or non-existence of a fact, as may be appropriate in the circumstances”.1278 The purpose of this provision is to mini-

1270 P. Malanczuk, Protection of National Security Interests, in THE ROME STATUE OF THE ICC, above note 669, at 1383. 1271 Article 72(5)(a) to 72(5)(d). The Court may refer the matter to the Assembly of States Parties to the Security Council if the matter was referred the to the Court by the Security Council. 1272 Article 72(6). 1273 Article 72(7)(a)(ii). 1274 Article 72(7)(a)(i). 1275 Article 72(7)(a)(iii). 1276 P. Malanczuk, Protection of National Security Interests, in THE ROME STATUE OF THE ICC, above note 669, at 1385. 1277 Ibid. 1278 Article 72(7)(a)(iii) of the Rome Statute. Concerning the inferences made under Article 72, due regard must be granted to the rights of the accused. These rights include the presumption of innocence and the fact that the onus is on the Prosecutor to prove the guilt beyond reasonable doubt (Article 66), and the right to a fair trial (Article 67). It seems that finding the accused guilty on the basis of facts which were inferred, violates his rights, consequently inferences may be made either on issues which are not central to the case or to the benefit of the accused. See Rodney Dixon, and Helen Duffy, Protection of National Security Information, in COMMENTARY ON THE ROME STATUTE, above note 7, at 939–40.

the trial

269

mize the impact on the proceedings in case evidence is withheld.1279 Nonetheless, inference as to the existence or non-existence should be made only if the Court is satisfied that the such inferences are compatible with the rights of the accused under Article 67(1)(e), that the inferences do not lead to a reversal of the burden of proof,1280 or are in contradiction with the principle that the accused is to be presumed innocent until proven guilty.1281 Although the implications of the inferences are somewhat mitigated as they are made on facts rather than of guilt,1282 the provision allowing the Court to make inferences is nonetheless problematic. 11.12

Witness Testimony

In principle, witness testimony is to be given in person.1283 This principle is not absolute as the Statute (Article 68) and several Rules of Procedure and Evidence1284 provide for exceptions which will be discussed below. A witness before the Trial Chamber is to give an undertaking as to the truthfulness of the evidence to be given.1285 The witness has to be warned that it is an offence under Article 70(1)(a) of the Statute to give false testimony while under the obligation to tell the truth.1286 If the witness is below 18 years of age, or “whose judgement has been impaired” and, in the opinion of the Chamber, “does not understand the nature of a solemn undertaking”,1287 the Chamber may allow the testimony without the undertaking if it

1279

Ibid., at 946. Article 67(1)(i) of the Rome Statute. 1281 Article 66 of the Rome Statute states that “The onus is on the Prosecutor to prove the guilt of the accused”. 1282 Rodney Dixon and Helen Duffy, Protection of National Security Information, in COMMENTARY ON THE ROME STATUTE, above note 7, at 946. 1283 Article 69(2) of the Rome Statute. 1284 Ibid. 1285 Article 69(1) of the Statute. Rule 66(1) states that the undertaking shall be “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth”. 1286 Rule 66(3). According to Richard May and Marieke Wierda (INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 166), there is no record of any witness refusing to make the declaration required before the ad hoc Tribunals, and it is doubtful that there are grounds on which a valid objection could be made. The Court may refuse to hear the witness in such a case. In the opinion of the mentioned authors, the wording of Articles 70 and 71 make it doubtful that the Court could sanction such a witness. In May 2005, a witness in the Milosevic case refused to answer questions posed by the prosecution and was held in contempt of Tribunal; see Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54-R77.4, Contempt Proceedings against Kosta Bulatovic, Decision on Contempt of Tribunal, 13 May 2005. 1287 Rule 66(2). 1280

chapter iv

270

“considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to speak the truth”.1288

The witness must be notified of the provisions regarding self-incrimination.1289 A witness, if he or she has not yet testified and is not an expert, is not allowed to be present while the testimony of another witness is given. However, the fact that the witness has heard the testimony of another witness shall not, by itself, disqualify him or her from testifying. The fact that the witness testifies after hearing the testimony of others shall be noted in the record, and will be considered by the Trial Chamber when it evaluates the evidence.1290 11.13

Power of the Court to Compel Witness Attendance and Testimony

The Court has the power to require the attendance and testimony of witnesses.1291 Rule 65 elaborates this principle and states that “a witness who appears before the Court is compellable by the Court to provide testimony, unless otherwise provided for in the Statute and the Rules . . .”

The Court may, if necessary for the fulfillment of this purpose, obtain the assistance of states.1292 Part 9 of the Rome Statute contains a general obligation for states parties to cooperate.1293 It also contains the procedure for such cooperation.1294 There are several limitations to the power of the Court to compel the attendance of witnesses. Further, the obligation to cooperate does not extend to states which are not parties to the Statute,1295 the Court may, however, invite other states to cooperate, and therefore to summon witnesses, on the basis of ad hoc arrangements or agreements with the state in question. Difficulties are to be expected in instances where a witness is not willing to attend voluntarily. There is no specific provision which authorizes the Court to request that a person be forcefully transferred to the Court

1288

Ibid. See below, at 274–275. See Prosecutor v. Akayesu, ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998. 1290 Rule 140(3). 1291 Article 64(6)(b). Under Article 100(1)(a) the cost associated with the travel of witnesses in order to appear are born by the Court. 1292 Ibid. 1293 Article 86 of the Rome Statute. 1294 Ibid., Article 87(1)–87(4). 1295 Ibid., Article 87(5). While this provision certainly hampers the power of the Court, it is understandable and unavoidable due to the nature of the Statute as a multilateral treaty, that third parties may not be compelled. 1289

the trial

271

in order to give evidence.1296 This is due to a discrepancy between Article 64(6)(b), which states that the Court has the power to compel witness testimony and Article 93(1)(e) under which states parties shall assist the Court in “facilitates the voluntary appearance of persons as witnesses or experts before the Court”.1297 States parties undertook several related obligations, such as assisting the Court in identifying or locating the whereabouts of a person,1298 and assisting the Court in taking evidence including testimony under oath.1299 It could be argued that the cooperation required by states is not limited to the forms of cooperation expressly stated.1300 States are required to assist the Court in the serving of judicial documents,1301 and states have a duty to adopt procedures under their national laws for the forms of cooperation specified. By inference and reference to the general duty of the parties to cooperate with the Court, it could be deduced that cooperation for the non-voluntary transfer of witnesses may be requested. However, such conclusion does not seem to be acceptable for several reasons: – The exclusion of an explicit provision, which allows the use of coercive power in order to compel attendance, cannot be attributed to an oversight due to the important nature of this issue. – The duty of the state to ensure that there are procedures under their national laws is limited to the forms of cooperation specified. – Failure of a witness to appear before the Court is not listed as an offence under Article 70 or 71 of the Rome Statute. – The parties undertook to cooperate with the Court for the facilitation of the voluntary appearance of persons before the Court thereby excluding the use of coercive powers. Thus, the nature of the appearance of witnesses in person before the Court is voluntary.1302

1296

Article 93(1)(e) concerns assistance of states parties in “facilitating the voluntary appearance of persons as witnesses or experts before the Court” and Article 93(7), deals with the transfer of a person in custody, and requires that the person give “his or her informed consent to the transfer”. 1297 Gilbert Bitty, The Functions and Powers of the Trial Chamber, in COMMENTARY ON THE ROME STATUTE, above note 7, at 819–820. 1298 Article 93(1)(a) of the Rome Statute. 1299 Ibid., Article 93(1)(b). 1300 Ibid., Article 93(1)(l). 1301 Ibid., Article 93(1)(d). 1302 On this issue, see Annalisa Ciampi, Other Forms of Cooperation, in THE ROME STATUTE OF THE ICC, above note 669, at, 1728–1729. On the issue as to whether witnesses before the ad hoc Tribunals may be compelled to give evidence, see Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 190–193.

chapter iv

272 11.14

Audio or Video Link and Prior Recorded Testimony

Although in principle testimony shall be given in person, the Court may authorize the giving of oral testimony by means of video and audio technology, this at the condition that these means permit the Chamber, the Prosecutor, and the defence to examine the witness “at the time that the witness so testifies.”1303 With the assistance of the Registry, the Chamber “shall ensure that the venue chosen for the conduct of the audio or videolink testimony is conductive to the giving of truthful and open testimony and to the safety, physical and psychological well-being, dignity and privacy of the witness”.1304

Should the case load of the Court and the related witness expenses increase significantly, it cannot be excluded that this option will probably be resorted considering that the Court may request the cooperation of states for the taking of evidence under oath1305 and for the protection of witnesses.1306 The introduction of prior recorded testimony may be allowed by the Trial Chamber under Article 69(2) of the Statute, unless measures were taken in accordance with Article 56 by the Pre-Trial Chamber. The submission of such evidence is conditional upon the prior or actual opportunity to examine the witness. Consequently, where the witness giving recorded testimony is not present before the Trial Chamber, prior recorded testimony may be allowed if both the Prosecutor and the defence had the opportunity to examine the witness during the recording.1307 Where the witness who gave the recorder testimony is present before the Trial Chamber and does not oppose to the submission of the previously recorded testimony, such testimony may be allowed if the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings.1308 It is unclear whether the opposition of the witness to the submission of the previously recorded testimony would have any consequences.

1303

Rule 67(1). Rule 67(3). See the Tadic Opinion and Judgment, above note 331; On the admission of video-recording of the testimony, see the Aleksovski Judgement, above note 534. 1305 Article 93(1)(b) of the Rome Statute. 1306 Ibid., Article 93(1)( j). 1307 Rule 68(a). 1308 Rule 68(b). 1304

the trial 11.15

273

Examination and Cross Examination

Subject to specific provisions,1309 the party who calls the witness has the right to question him or her.1310 The same witness may be questioned by both, the prosecution and the defence, on matters relevant to the testimony and its reliability, the credibility of the witness and other relevant matters.1311 As such, the scope of questioning available to both parties is extremely broad,1312 and is not limited to issues raised during the direct examination. The Trial Chamber may question the witness before or after the examination and the cross-examination.1313 In any case, the defence shall have the right to examine the witness last,1314 albeit avoiding to raise issues that were not already raised. Unlike the Rules of Procedure and Evidence of the ICTY providing that witnesses are questioned in terms of examination and cross-examination, ICC Rule 140 does not contain a similar provision, and the order and manner of the presentation are either to be decided by the Presiding Judge or by agreement between the Prosecutor and the defence.1315 It may be assumed that the method of examination will be that of examination and cross-examination. Strict rules of examination and cross-examination are virtually non-existent in the ICC and the sides might be granted more leeway in the examination of the witnesses.1316 The question is whether basic common-law rules regarding questioning will apply in proceedings before the Court such as the rule prohibiting “leading questions” in direct examination for instance. The ICTY has generally allowed leading questions on issues of background and other matters not in dispute, but has not allowed such questions on matters at dispute.1317 Despite the fact that the ICC does not have an “examination/cross-examination” system per se, it is to be assumed that similar rules should apply due to the fact that the witness’s answers, when given in reply to leading questions during the direct examination (in terms of Rule

1309

Articles 64(8)(b), 64(9) and 69(4) of the Rome Statute; Rule 88(5) and 140(2). Rule 140(2)(a). Rule 140 has been described as “one of the most controversial of all the rules in the drafting process”, Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 146. 1311 Rule 140(2)(b). 1312 In comparison, see Rule 90(h) of the ICTY. 1313 Rule 140(2)(c). 1314 Rule 140(2)(d). 1315 Rule 140(1). 1316 See Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 146. 1317 Ibid. 1310

chapter iv

274

140, the examination of the party which called the witness), should be considered to have limited probative value and thus little relevance.1318 Another issue which is not directly addressed by the Statute or the Rules of Procedure and Evidence, is that of the length of the examination of witnesses. The length of any examination is closely related to the duty of the Court to ensure an expeditious trial,1319 to the relevance and scope of the testimony, and to the respect for the accused’s right to question the witnesses against him or her.1320 11.16

Self-Incrimination

Before testifying, the Court shall notify the witness of the provisions of Rule 74 on self-incrimination by a witness. As a general rule, “A witness may object to making any statement that might tend to incriminate him or her”.1321 However, the Court may require that the witness answer the question or questions if it gave the witness assurances that the evidence provided will be kept confidential and will not be used directly or indirectly (except in proceedings under Articles 70 and 71) against that witness.1322 Such assurance may be granted either before the witness attends1323 or, if such assurances were not granted, the Chamber may do so during the testimony.1324 The Chamber shall consult, ex parte, with the Prosecutor before granting such assurances.1325 Rule 74(5) specifies the factors to be considered by the Chamber: “a) The importance of the anticipated evidence; b) Whether the witness would be providing unique evidence; c) The nature of the possible incrimination, if known; and d) The sufficiency of the protections for the witness, in the particular circumstances”.

If the Chamber decides not to grant assurances, it may not require that the witness answer the questions, but the witness may still be questioned on

1318

Ibid. Article 64(2) of the Rome Statute. 1320 Ibid., Article 67(e). The Trial Chamber of the ICTY held that questions posed to witnesses have” to be directed to issues relevant to the case, that is, either relevant to a fact that is in issue between the parties or relevant as to the credit of the witness” Judgement, Prosecutor v. Kunarac and Others, ICTY Case No. IT-96-23 & 23/1, Judgement, 12 June 2002, note 53 of the Appeals Chamber decision referring to the transcript of the trial; 1321 Rule 74(3)(a). 1322 Rule 74(3)(c)(i) and 74(3)(c)(ii). Rule 74(7) includes provisions giving effect to the assurance. 1323 Rule 74(2). 1324 Rule 74(3)(c). 1325 Rule 74(4). 1319

the trial

275

other matters.1326 Rule 74 includes provisions regarding advance notification on issues of self-incrimination,1327 and a provision allowing the witness, in case the issue regarding self-incrimination arises during the course of the proceedings, to obtain legal advice. In the meantime, the testimony shall be suspended.1328 11.17

Incrimination by Family Members

While family members of the accused may be compelled to testify in the accused’s trial, they shall not be required to make statements which “might tend to incriminate that accused person”. They are, however, allowed to choose to make such statements.1329 This Rule deviates from the commonlaw rule, which generally limits the compellability of the spouse rather then allowing for him or her not to make specific statements.1330 The Chamber shall, in its evaluation of the testimony, take into account the fact that the witness “objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer”.1331

Rule 75(1) lists “a spouse, child or parent of an accused person” as a witness appearing before the Court under the heading “Incrimination by family members”. This provision does not address the question of “family members”; it may nonetheless be assumed that a spouse for example, is such if married to the accused on the day she or he gives testimony. The same may not have been a spouse on the day of the alleged commission of the crime or when summoned to testify. The issue of marriage subsequent to the commission of the crime arose in Great Britain in the case of Hoskyn,1332 where the victim married her attacker two days before the trial. The Court consequently held that the spouse may not be compelled to testify.1333 1326

Rule 74(6). See Rules 74(8) and 74(9). 1328 Rule 74(10). 1329 Rule 75(1). 1330 See Section 80(3) of the Police and Criminal Evidence Act (UK). 1331 Rule 75(2). 1332 Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474. 1333 See John Andrews and Michael Hirst, ANDREWS & HIRST ON CRIMINAL EVIDENCE, London, Sweet and Maxwell (1997), at 280 (hereinafter “ON CRIMINAL EVIDENCE”). Rule 75 does not contain a provision relating to a situation where the alleged offence is committed against the family member which is being asked to testify. However, this exception which exists in many nations legal systems is mostly relevant to cases of domestic violence and is not crucial when in the context of the subject matter jurisdiction of the ICC. 1327

chapter iv

276 11.18

Expert Witnesses

Expert evidence is resorted to in cases where the Court requires information which is not within its normal expertise and knowledge.1334 Such testimony holds an increasingly important role in modern trials,1335 including in the experience of the ad hoc Tribunals.1336 The Rules of the ICTY and the ICTR contain specific provisions regarding expert witnesses.1337 The ICC Rules do refer to expert witnesses in other regards,1338 but do not contain specific provisions on the testimony of expert witnesses, nor a distinction between the expert and a “regular” witness.1339 The Court might elaborate its own conditions for allowing expert testimony on a case-bycase basis according to the admissibility and relevance tests. “Expert testimony” submitted by anyone who cannot objectively be considered an expert should be ruled irrelevant.1340 Thus, only an expert testimony on an issue relevant to the case provided by a person of sufficient qualifications should be considered relevant and as such be allowed into evidence. For a second expert to be appointed, the defence had to show that the expert possessed “superior knowledge, expertise or methods of working”.1341 The defence objected to the inclusion of a prosecution exhibit which consisted of a report by a judge appointed by the UN, who in essence summarized and collated information from hundreds of witnesses. This raised two substantial issues. First, it was not clear why the judge was an expert and what the judge’s field of expertise was. Further, the report was in essence hearsay, in several cases multiple hearsay, and as such the admission of the report into evidence would not have allowed the defence to cross-examine the witnesses at all. The counsel for the accused stated: 1334 Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 199. 1335 Frank Terrier, The Powers of the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, 1307. 1336 Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 198. 1337 Rule 94 bis common to the ICTY and the ICTR. 1338 Rule 140(3) for example, states that witnesses, other than experts shall not be present in the Chamber during the testimony of another witness. 1339 F. Terrier, The Powers of the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1307. 1340 May and Wierda submit that evidence be admitted and that the issue of qualifications be left for cross-examination and be considered when granting weight to the evidence, see Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 199. Evidence should be allowed where there is no disagreement as to the level of expertise. However, if it is shown that the witness lacks expertise to the extent that he or she may not be considered an expert, the evidence should be deemed irrelevant and therefore not admitted into evidence. 1341 Prosecutor v. Kovacevic, ICTY Case No. IT-97-24 Decision on Request for Approval of Defence Experts, 8 October 2002. On hearsay evidence, see below at 284–286.

the trial

277

“. . . she [the expert-judge] has summarized, analyzed and collated information from 400 witnesses. This constitutes the very heart and soul of the prosecuting attorney’s case. That is totally unfair and in any court, in any civilized society, to have a man’s life depend on multiple hearsay where the defendant is being denied the essential right that any accused has in any trial to have him convicted on the type of evidence that they’re trying to introduce at this time . . . Your Honour knows the character and the type of witness that’s in this document. It violates the fundamental rights of cross-examination and the right to confront witnesses. Further, Your Honour, with reference to an expert witness, they cannot merely summarize evidence and introduce it under the guise of being an expert. And for those two essential reasons, we object”.1342

Judge May, on behalf of the Trial Chamber, dismissed the defence’s objection, accepted the report and stated: “It is our view that the witness should be treated as an expert in this sense, an expert who has made a study of material and is therefore qualified to give evidence about it. The position being analogous to that of the historian. We take entirely the point made by the Defence, that they cannot crossexamine the 400 witnesses on whose statements this evidence will be based. We understand that. But in this Tribunal we admit all types of evidence. The hearsay rule does not apply, but the issue of how much weight is given to this evidence is very much a matter for the Tribunal. And, in that connection, we shall, of course, bear in mind that it is hearsay. And, as I said earlier, sometimes hearsay upon hearsay. With those considerations in mind, we shall admit this report. But, I should make it quite plain, there is no question of this defendant being convicted on any count on the basis of this evidence. And we shall require other evidence before we consider taking any such course.”1343

Despite the assurances quoted above, the expertise of the expert remained unclear. In essence, the Judge who wrote the report performed a function that should have been performed by the Tribunal. Hearing witnesses and drawing conclusions is the function of the Trial Chamber, not of an expert witness. It appears that the very reason behind allowing for expert witnesses is that the expertise is beyond the normal knowledge of the Court.1344 In the Kovacevic case, the expertise was within the normal knowledge of the Tribunal and if presented with the factual basis that was before the “expert”, there can be no dispute that the Trial Chamber of the ICTY had the expertise to weigh and assess the evidence. 1342

Ibid., Official Transcript, 6 July 1998, at 70–71. Ibid., at 75. On this issue see also Ilias Bantekas and Susan Nash, in INTERNATIONAL CRIMINAL LAW, above note 1157, at 310–311. 1344 See Richard May, in CRIMINAL EVIDENCE (3rd ed., 1995), at 162. See also Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 199. 1343

278

chapter iv

Expert testimony was challenged in the Kordic case, where the defence objected to the prosecution’s expert witness on two grounds:1345 that the “expert witness” did not have expertise beyond that of the Court, and that the common-law “ultimate issue rule” had been violated. On the witness’ expertise, defence counsel Robert A. Stein stated: “Let me start by debunking a myth. First, Dr. Cigar is neither neutral nor an expert . . . he offers no expertise that the Court doesn’t already have. His PhD . . . is in Middle Eastern history and Arabic from the University of Oxford. His thesis was Mohammed L. Khadar’s Nashr al Mathani, The Chronicles, which is a thesis about a Moroccan historian . . . His undergraduate degree is in French. He has a Masters, of course, in international affairs and his M.S. in strategic intelligence is in Soviet Union areas studies. The long and short of all this is I do challenge what my opposition has said, and the bottom line is he is no more expert than the Bench. His graduate degrees versus our law training and our background are identical, and he clearly, and Your Honours clearly understand, he invades on your province. He is the fourth judge. He is the Prosecutor’s closing argument, and he tries to make the case for the Prosecution.”1346

The Trial Chamber noted that this issue is mostly one for cross-examination, but finally excluded the witness based on the “ultimate issue” rule, Judge May stating that: “it may be that in certain circumstances experts are now permitted in jurisdictions, certain jurisdictions, to give evidence about the ultimate issue, but we don’t think that this is such a case . . . Because it’s dealing with the matters which we have to deal with ultimately, drawing the conclusions and inferences which we have to draw, we think that it does not assist and is, therefore, not of probative value . . . Accordingly, we shall exclude the evidence”.1347

It should be mentioned the “ultimate issue” is not an absolute rule; an exception for example, is that evidence on the ultimate issue is admissible when the “expert witness can hardly express a relevant opinion at all without answering the ultimate issue itself ”.1348 The ICTR has allowed expert testimony which discussed the culpability of the accused person in great depth. In the case of Bagosora case (often referred to as the “Military case”), the Tribunal allowed the admission of expert testimony by a historian on a book she wrote,1349 which was explicit on the guilt of the accused in 1345 Prosecutor v. Kordic and Others, ICTY Case No. 95–14/2, Official Transcript, 28 January 2000, at 13269. 1346 Ibid., at 13289–13290. 1347 Ibid., at 13306–7. 1348 John Andrews and Michael Hirst, ON CRIMINAL EVIDENCE, above note 1333, at 742. 1349 The title of the book is: LEAVE NONE TO TELL THE STORY: GENOCIDE IN RWANDA, by Alison Liebhafsky des Forges (1999). It should be mentioned that the

the trial

279

the specific trail.1350 The evidence also included anonymous testimony and expertise in the area of human rights law, which is known to the Tribunal. These cases outline the difficulties faced by the Court when it comes to expert evidence that is mostly a compilation and analysis of various pieces of evidence and testimony complied by that expert. Ideally, the right of the accused to cross-examination and to present his defence would require that all those pieces of evidence and testimony on which the expert based his or her expert testimony be brought before the Court and the defence granted adequate facilities to counter the documentary evidence and the opportunity to cross-examine the witnesses. Analyzing evidence and testimony is the Trial Chamber’s expertise and responsibility, and the Prosecution should not be allowed to circumvent the proper presentation of evidence through expert witnesses. Furthermore, the relevant Trial Chamber should not only receive the final report, but also hear witnesses on the facts that the expert report is based on. Expert’s evidence is based among others, on certain facts, and those facts have to be proven in Court.1351 In view of the precedents, greater emphasis should be placed on the actual expertise in the relevant field. As apparent in the defence’s objection in the Kordic case cited above, it is questionable what qualifies Dr. Cigar as an expert on the conflict in the Balkans. While expertise may be gained through a person’s own study and research and not only through formal training,1352 not everyone who conducts a specific research is necessarily an expert and the side who wishes to call the expert must show why the specific research on the matter makes the witness an “expert” rather than simply an amateur that collected data or conducted research.1353 11.19

Evidence and the Protection of Victims and Witnesses

Upon request of the Prosecutor, the defence, the victim or witness or on its own motion, the Court may order protective measures for witnesses, victims or other persons who are “at risk on account of testimony given by a witness . . .”1354 Whenever possible, the Court will attempt “to obtain . . . the writings of the expert cover other tragedies of mankind as well and are not exclusively focused on Rwanda. 1350 Prosecutor v. Bagosora and Others, ICTR Case No. ICTR-96-7 ( Joinder, ICTR 9841-T), Minutes of Proceedings, Day 4, 4 September 2002, at 2. 1351 Richard May, CRIMINAL EVIDENCE, above note 1344, at 175. 1352 R. v. Silverlock [1984] 2 Q.B. 766. 1353 John Andrews and Michael Hirst, ON CRIMINAL EVIDENCE, above note 1333, at 739–40. 1354 Rule 87(1). The Court will consult with the Victims and Witnesses Unit before ordering protective measures. Under this provision, the person receiving the protection may be anyone at risk as a result of a testimony.

chapter iv

280

consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure”.1355 The motion or request for a protective measure by a victim shall be in writing, it may not be submitted ex parte and shall be served upon both the Prosecutor and the defence, all those served shall have the opportunity to respond. If the motion is initiated by the Trial Chamber “notice and opportunity to respond shall be given to the Prosecutor and the defence, and to any witness or any victim and his or her legal representative, if any, who would be affected by such protective measures.”1356

A motion may also be filed under seal, and is to remain sealed unless otherwise ordered by the Chamber, the same for responses to motions or requests filed under seal.1357 Hearings on motions or requests for protective measures may be held in camera, and the Trial Chamber may, if it deems it necessary, order measures preventing the release of the identity or the location of a victim, a witness or anyone at risk due to the testimony given, to the public or the media.1358 Rule 87(3) provides an open list of orders that may be rendered such as: “that the information which may identify the person at risk be expunged from the public records of the Chamber; that participants in the proceedings be prohibited from disclosing such information to third parties; that testimony be given by means that prevent the victim or witness to be identified; that a pseudonym be used instead of the name of the person at risk; and that part (but not all) proceedings be held in camera.”1359

11.20

Confidentiality and Anonymity of Witnesses

The situation in case of an anonymous witness differs from that of a confidential witness.1360 As stated above in the context of the ad hoc Tribunals, 1355

Ibid. Rule 87(2)(d). 1357 Rule 87(2)(e). 1358 Rule 87(3). 1359 Rule 87(3)(a)–87(3)(b). 1360 For a historical examination of the issue of anonymous witnesses, see David Lusty, Anonymous Accusers, above note 604, 361–426. See also J.R.W.D. Jones, Protection of Victims and Witnesses, THE ROME STATUTE OF THE ICC, above note 669, at 1364–1366; Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 130–1; Mercedeh Momeni, Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An Examination of the Anonymity Rules of the International Criminal Tribunal for the Former Yugoslavia, 41 How. L.J. (1997), at 155; Anna M. Houghton, Balancing of the Rights of the Accused Against the Rights of a Witness in Regard to Anonymous Testimony, Memoranda for the Office of the Prosecutor, Case Western Reserve University School of Law, (December 2001), at http://www.nesl.edu/center/wcmemos; Kellye L. Fabian, Note and Comment: Proof and Consequences: An Analysis of the Tadic & Akayesu Trials, 49 DePaul L. Rev. (2000), at 1012–1016 (hereinafter “Proof and Consequences”). 1356

the trial

281

the anonymity of witnesses affects the fairness of the trial, whereas the confidentiality of a witness does not.1361 In the first case the true identity of the witness is withheld not only from the public but from the accused and his or her counsel as well. The difficulties that anonymous witnesses raise are clear. First, the accused is in effect denied his right to examine the witness as he is prevented to know who his accuser is and cannot resort to means of defence which he could, in a non anonymity situation, use against a witness.1362 The accused cannot investigate the witness, a fact which is highlighted by the developments in the Tadic case where it came to light that one of the anonymous witnesses lied under oath and that the witness “asserted that he had done this at the behest of the Bosnian government authorities who had allegedly “trained” him to give evidence against the accused”.1363 The ICTR did not follow the ICTY on this matter and held that the Prosecutor is required to disclose the identity of witnesses to the defence.1364 The issue of anonymous witnesses was also a point of major debate in academic writing. Monroe Leigh claimed that the majority opinion in the Tadic case1365 did not find the right balance between the rights of the accused and the public interest in the protection of victims and witnesses.1366 Christine Chinkin (who submitted an amicus curiae brief in the relevant decision in the Tadic case), claimed that Monroe Leigh “has failed to take into account the full details of the chamber’s judgement, which recognized in particular that the accused’s right to know and confront Prosecution witnesses is not absolute but may have to be balanced against other important issues.”1367

In his response, Monroe Leigh,1368 held that the right to a fair trial is an absolute minimum, and as such should not be weighed against any other right,1369 adding that

1361 For the issue of anonymous witnesses in the ad hoc Tribunals, see above at 91–93 and accompanying notes. 1362 J.R.W.D. Jones, Protection of Victims and Witnesses, in THE ROME STATUTE OF THE ICC, above note 669, at 1365. 1363 Prosecutor v. Tadic ICTY Case No. IT-94-1, Decision on the Prosecutor’s Motion to Withdraw Protective Measures, for Witnesses L, 5 December 1996, para. 4. 1364 See V. Morris and M.P. Scharf, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, above note 62, 540–1 and cases cited therein. 1365 Above, note 370. 1366 Monroe Leigh, Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 AJIL (1996), at 235; see also V. Morris and M.P. Scharf, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, above note 62, at 540. 1367 Christine Chinkin, Due Process and Witness Anonymity, 90 AJIL (1997), at 75. 1368 Monroe Leigh, Witness Anonymity is Inconsistent with Due Process, 91 AJIL (1997), at 80. 1369 Ibid., at 81.

chapter iv

282

“ordinarily, in municipal legal systems any balancing takes place in the Prosecutor’s office before trial. The Prosecutor either decides to go to trial without the witness or abandons the case or the particular charge . . . It is a radical proposition to suggest that the minimum rights of the accused to a fair trial can be diminished in order to protect witnesses and victims”.1370

It was suggested that the issue of anonymous witnesses could be dealt with by an appointed ombudsman, a neutral third party or a Court official entrusted with the task of investigating the anonymous witness and examining him or her, subject to the control of the Chamber.1371 The question of anonymous witnesses is not explicitly dealt with by the Rome Statute. Rule 87 outlines the steps that a Chamber may take in order to protect victims, witnesses or other persons at risk. Withholding the identity of the witness from the defence is not one of those steps. Due to the extent of debate over the Tadic case, the drafters of the Rules of Procedure and Evidence of the ICC were obviously aware of this issue, and it is assumed that the exclusion of a provision allowing for anonymous witnesses from Rule 87, is intentional.1372 Another view is that “The Statute does not take a definite position on the admissibility of anonymous testimony whereby a person’s identity is kept secret. This topic has been a controversial issue for a long time. It seems that the question is left to a case-by-case balancing between security needs and protection of the defendant’s rights, with the final determination made by the judge”.

11.21

Evidence Other than Testimony of Witnesses

Article 69(2) explicitly allows for the introduction of documents1373 and written transcripts.1374 This provision clearly avoids the technical Rules of Evidence governing the admission of documents, specifically the commonlaw rules regarding the admission of documents via witnesses and the best evidence rule.1375 Thus, The Statute makes it clear that that the Court may

1370

Ibid. Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 132. 1372 Michele Caianiello and Giulio Illuminati, From the ICTY to the ICC, above note 1051, at 448. 1373 On what can be considered a “document”, see John Andrews and Michael Hirst, ON CRIMINAL EVIDENCE, above note 1333, at 355–6. 1374 Donald K. Piragoff, Evidence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 900. 1375 Ibid. On the requirement that the submission of document evidence be through witnesses, see Richard May, CRIMINAL EVIDENCE, above note 1344, at 245–6; on the best evidence rule regarding documents, see John Andrews and Michael Hirst, ON CRIMINAL EVIDENCE, above note 1333, at 359–61. 1371

the trial

283

admit evidence other than testimony of witnesses, without the need for such evidence to be admitted through a witness.1376 However, it is stated that such acceptance of evidence shall be “subject to this Statute and the Rules of Procedure and Evidence”. Neither the Statute nor the Rules of Procedure and Evidence contain any further provision specifically dealing with the admission of such evidence, other than the general rules relating to admissibility and relevance. Provisions in the Statute that may nonetheless be considered relevant are Article 56, 67 and 68.1377 In comparison, the Rule 92 bis of the Rules of Procedure and Evidence of the ICTY deals in depth with the issue of “Proof of Facts other than by Oral Evidence”. Precedents of international criminal trials have shown that non-testimonial evidence is of considerable importance1378 and the Court might develop its own rules regarding the submission of such evidence. It can be expected that the Court will not apply the regular common-law model whereby such evidence may only be introduced through a witness who testifies as to the nature, origin and authenticity of the evidence.1379 The dilemma before the ICTY is a mirror image of the conflict existing between the right to a fair trial and the right to an expeditions trial. The ICTY has been criticized for the length of the trials, a considerable part of consists of hearing live testimony. To some extent, the ICTY shifted away from testimonial evidence. This shift has been considered as an erosion of due process and has been extensively scrutinized, especially in relation with the adversarial nature of the proceedings.1380 Subject to the Statute and Rules of Procedure and Evidence, the Court may allow the introduction of documents or written transcripts.1381 As there are no provisions specifically relating to the standards for the admission of written statements of witnesses, the general standards of admissibility and relevance must be adhered to. With regards to both written statements of

1376

Article 69(2)–69(4) of the Rome Statute. Donald K Piragoff, Evidence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 900. 1378 Frank Terrier, The Powers of the Trial Chamber, in THE ROME STATUE OF THE ICC, above note 669, at 1308. 1379 Ibid. 1380 See for example Megan Fairlie, Due Process Erosion: The Diminution of Live Testimony at the ICTY, 34 Cal. W. Int’l L.J., (Fall 2003) at 47. 1381 Article 69(2). In this regard the ad hoc Tribunals allow, under specific requirements and limitation, affidavits, witness statements not under oath, the statements of deceased witnesses, transcripts and depositions. None of these forms of evidence are specifically addressed in the Statute or Rules of the ICC. On these forms of evidence historically and in the context of the ad hoc Tribunals, see Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 210–236. Also see at 236–238 on the use of statements in evidence with regards to prior consistent statements and prior inconsistent statements of witnesses. 1377

chapter iv

284

witnesses and other forms of non-testimonial evidence, they may only be admitted when such measures are not “prejudicial to or inconsistent with the rights of the accused”.1382 Article 69(2), which allows for the submission of “written transcripts”, is broader then the early proposals regarding that paragraph, which only addressed the issue of depositions.1383 Thus, documents that may be admitted into evidence according to this rule may include depositions, transcripts of other proceedings (possibly both before the ICC and before other tribunals), as well as transcripts of the confirmation hearing in a case where the witness is unable to testify at the Trial.1384 In the context of the ad hoc Tribunals, non-testimonial evidence has been submitted including audiovisual evidence, transcripts of other proceedings, reports, real evidence and forensic evidence.1385 The ICC may or may not follow the practice established by the ad hoc Tribunals, and decide to elaborate its own principles and guidelines on non-testimonial evidence. 11.22

Hearsay Evidence

While common-law systems generally have a hearsay evidence exclusionary rule, this is not always the case in civil law systems. In common-law jurisdictions, the underlying rationale behind the hearsay exclusionary rule is to protect the jury from potentially misleading information. In systems, which do not have juries, the position is that a judge’s experience allows him or her to ignore potentially misleading testimony and to give hearsay evidence the proper weight.1386 The ICTY was faced with the issue of admitting hearsay evidence in its very first case, and took the view that although the particular testimony constituted hearsay evidence it “did not operate to exclude it from the category of admissible evidence”.1387 This decision was followed by another Trial Chamber in the Blaskic case.1388 1382

Ibid. Donald K. Piragoff, Evidence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 900. 1384 Ibid. 1385 One these issues and the rules applicable before the ad hoc Tribunals, see Richard May and Marieke Wierda, in INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 238–257. 1386 Kellye L. Fabian, Proof and Consequences, above note 1360, at 1020. 1387 Tadic Opinion and Judgment, above note 331, para. 555. For a detailed examination of the hearsay evidence admitted in the Tadic and a discussion of hearsay that arose during the Akayesu trial, see Kellye L. Fabian, Proof and Consequences, above note 1360, at 1030–1034. 1388 Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Judgement, 3 March 2000, para. 36; Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Decision on the Standing Objection of the Defence to the Admission of Hearsay With No Inquiry as to its Reliability, 26 January 1998. 1383

the trial

285

The issue of hearsay evidence was finally dealt with by the Appeals Chamber in the Aleksovski case, where the defence argued that the Tadic and Blaskic decisions were wrongly decided, and “that the accused would be deprived of the right to challenge the primary source of evidence against him” if the evidence is admitted.1389 The Appeals Chamber reaffirmed the principle laid out in the Tadic case, stating that: “It is well settled in the practice of the Tribunal that hearsay evidence is admissible. Thus relevant out of Court statements which a Trial Chamber considers probative are admissible”.1390

The reasoning behind these decisions is that the proceedings are conducted by professional judges whose experience allows them to give the appropriate weight to such testimony.1391 Accordingly, the Aleksovski Appeal decision stated with regard to the probative value of hearsay evidence: “Since such evidence is admitted to prove the truth of its contents, a Trial Chamber must be satisfied that it is reliable for that purpose, in the sense of being voluntary, truthful and trustworthy, as appropriate; and for this purpose may consider both the content of the hearsay statement and the circumstances under which the evidence arose; or, as Judge Stephen described it, the probative value of a hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence.”1392

The ICTR has taken a similar view, and determined that hearsay evidence is admissible.1393 Hearsay evidence that is found reliable and supported by other evidence, and at the condition that the defendant may counter such hearsay evidence by not less credible hearsay evidence, should be admitted. The hearsay evidence issue will most likely be contested before the ICC. However, the general philosophy of the Statute and the Rules is to allow 1389

Salvatore Zappalà, in HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 133. 1390 Prosecutor v. Aleksovski, ICTY Case No. IT-95-14/1, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15; Kristina D. Rutledge, Comment and Note: Spoiling Everything, above note 602, at 170. 1391 Ibid., 118. 1392 Prosecutor v. Aleksovski, above note 1390, para. 15. 1393 Ilias Bantekas and Susan Nash, INTERNATIONAL CRIMINAL LAW, above note 1157, at 304.

chapter iv

286

to great flexibility in the acceptance of evidence. The general guidelines are admissibility and relevance, and as such relevant hearsay evidence shall be allowed unless the specific evidence, due to its nature as hearsay lacks reliability to the extent that the evidence is no longer relevant to the case. Naturally, the fact that a specific piece of evidence is hearsay, even if not a factor in the admission of the evidence plays a crucial role in the weight of the evidence and its probative value. Evidence is paramount in any decision of the Court, decision which may based “only on evidence submitted and discussed before it at the trial”1394 11.23

Exclusion of Evidence

A piece of evidence might as such be admissible and relevant; it can nonetheless be excluded due to the means by which it was obtained. Under Article 69(7) of the Statute, evidence which was obtained in violation of “Statute or internationally recognized human rights” is inadmissible if “a) the violation casts substantial doubt on the reliability of the evidence; or b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings”.

This Article contains several elements. First, it requires a causal relationship between the violation and the collection of the evidence, a requirement which may vary depending on the right or procedure violated.1395 Moreover, this Article applies to the collection of evidence by the Prosecutor and national authorities,1396 and by the defence. Unless the evidence appears to be unreliable or jeopardizes the integrity of the proceedings, evidence which is “obtained by means of a violation of this Statute or internationally recognized human rights” may still be admissible.1397 The difficulty does not lie in cases of evidence obtained by means of grave breaches of an internationally recognized human right, such as torture for example, but by means of less severe measures. The standard should be less one of subjective perceptions rather than the degree to which the physical and mental freedom of the potential witness giving the evidence was affected. A question arises with regards to Article 69(7) referring to violations of the

1394

Article 74(2) of the Rome Statute. Donald K. Piragoff, Evidence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 911–2. 1396 Ibid. 1397 Examples of internationally recognized human rights are enshrined in the ICCPR, such as the right to life (Article 6), the right not to be subjected to “torture or to cruel, inhuman or degrading treatment or punishment” (Article 7). 1395

the trial

287

Statute only, and not to violations of the Rules of Procedure and Evidence. On the other, Article 64(1) states that “The functions and powers of the Court set out in this Article shall be exercised in the accordance with this Statute and the Rules of Procedure and evidence.”1398

Evidence of crimes committed by the “other side” was generally considered irrelevant by ICTY, and therefore not admitted.1399 In the Kupreskic case, the Trial Chamber stated: “. . . evidence that Bosnian Muslims may have committed atrocities against Bosnian Croat civilians in villages in the vicinity of Ahmici or elsewhere in the Lasva River Valley is, as such, irrelevant because it does not tend to prove or disprove any of the allegations made in the indictment against the accused, and that, likewise, evidence which is adduced to show that one Party to the Croat-Muslim conflict was responsible for starting the conflict is equally irrelevant and hence inadmissible in these proceedings.”1400

This decision reminded of the inapplicability of the tu quoque principle in international humanitarian law, the obligations of which are not based on reciprocity, but are obligations erga omnes which must be complied with regardless of the conduct of the “other party”.1401 Consequently evidence proving that the other side as well acted illegally is inadmissible evidence.

12. Motion for a Judgement of Acquittal The Statute and Rules of Procedure and Evidence of the ICC do not contain provisions on the procedure to follow for a judgement of acquittal. As the Court has the power to “rule on any other relevant matter”,1402 it may, in appropriate cases, decide on such motions. The procedure before the Trial Chamber of the ICC is flexible, nonetheless, under normal circumstances, a motion for a judgement of acquittal relies on the fact that the prosecution completed the presentation of its case. Originally, the Rules of Procedure and Evidence of the ICTY did not include any provision relating to motions for a judgement of acquittal; they 1398 Donald K. Piragoff, Evidence, COMMENTARY ON THE ROME STATUTE, above note 7, at 912–3. 1399 Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, above note 1013, at 104. 1400 Prosecutor v. Kupreskic and Others, ICTY Case No. IT-95-16, Decision on Evidence of the Good Character of the Accused and the Defence of tu Quoque, 17 February 1999, at 3. 1401 Ibid. 1402 Article 64(6)(f ).

288

chapter iv

were added in 1998, and subsequently amended.1403 However, even before the inclusion of these Rules, the ICTY considered “motions to dismiss”. Only after specific provisions on this issue were added to the Rules of Procedure and Evidence did the Tribunal decide that it could “issue orders” in this regard and the proper procedure must be motions for judgement of acquittal pursuant to the new Rule.1404 The provision on motions for judgements of acquittal has been extensively relied on since, and several accused before the ICTY have filed such motions after the close of the Prosecution’s case. The standards and origins of the motion were discussed more recently in the Milosevic case, which summarized the case law of the ICTY up to that point, according to the previous Rule 98 bis. The Chamber stated that “The degree of proof necessary in a Rule 98 bis Motion was settled by the Appeals Chamber in Prosecutor v. Jelisic, where it confirmed its holding in Prosecutor v. Delalic that the test for determining whether ‘the evidence is insufficient to sustain a conviction’ is ‘whether there is evidence (if accepted) upon which a tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question . . .; thus the test is not whether the trier of fact would in fact arrive at a conviction beyond reasonable doubt on the Prosecution evidence if accepted, but whether it could’; or, to put it as the Appeals Chamber later did in the same case, a Trial Chamber should only uphold a Rule 98 bis Motion if it is ‘entitled to conclude that no reasonable trier of fact could find the evidence sufficient to sustain a conviction beyond reasonable doubt . . .” (footnotes omitted).1405

It remains to be seen whether the subsequent amendment to Rule 98 bis will change the standard for these motions. The new Rule states that a judgement of acquittal will be entered “if there is no evidence capable of supporting a conviction”, while the previous rule stated that a judgement of acquittal will be entered if the Chamber finds “that the evidence is insufficient to sustain a convictions”. The amendment from “insufficient evidence to sustain a conviction” to “no evidence capable of supporting a conviction” renders the standards for a motion of acquittal more stringent for the accused. 1403 ICTY Rule 98bis, on Judgement of Acquittal, after its amendment of 8 December 2004: “At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction.” 1404 Prosecutor v. Blaskic, ICTY Case No. IT-95-14, Decision of Trial Chamber I On the Defence Motion to Dismiss, 3 September 1998. On the applicable standard under Rule 98bis, see Prosecutor v. Strugar, ICTY Case No. IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis, 21 June 2004. 1405 Prosecutor v. S. Milosevic, ICTY Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 9. The decision also contains a discussion of the common-law “no case to answer” rule.

the trial

289

13. Closing Arguments After the Presiding Judge has declared that the submission of evidence is closed,1406 the Prosecutor and the defence are invited to make their closing statements.1407 The rules do not specify the order in which the statements shall be made, presumably the Court will decide on this issue. Generally closing statements are made in turn by the Prosecutor followed by the defence, or closing statements are made in turn on specific issues. Whatever the order followed, the defence shall have the opportunity to speak last.1408 A further hearing may be held for submissions of any additional evidence or related to the sentence or reparations before the completion of the trial, be it proprio motu by the Trial Chamber or at the request of the Prosecutor or the defence.1409

14. Sentencing Under Article 76 of the Statute, in case of a conviction the Trial Chamber will “consider the appropriate sentence to be imposed on the accused” and take into account the evidence presented, submissions made by the parties during the trial, practice known in the civil-law tradition.1410 There seems to be no separation between the proceedings relating to the determination of the guilt or innocence of the accused and the sentence in the case of a conviction,1411 putting the defence in a difficult position.1412 Should a further hearing not be deemed necessary on submissions related to the sentence, the accused will have to present testimony and evidence such as on mitigating circumstances which are relevant to the sentencing

1406

Rule 141(1). Rule 141(2). 1408 Ibid. 1409 See Article 76 of the Statute and Rule 143. 1410 Ibid. 1411 Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUTE OF THE ICC, above note 669, at 1317. 1412 William A. Schabas, Sentencing, in COMMENTARY ON THE ROME STATUTE, above note 7, at 981; see also Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR, 12 Ind. Int’l & Comp. L. Rev. (2001), at 68–74. See especially discussion of the effect of the lack of distinct sentencing hearing in the Krstic case at 69–73. Krstic was sentenced to 46 years by the Trial Chamber, the sentence was reduced to 35 years by the Appeals Chamber which contrary to the Trial Chamber, did not find the accused guilty of genocide as a principal perpetrator nor as a participant in a joint criminal enterprise to commit genocide; see Prosecutor v. Krstic, ICTY Case No. Case No: IT-98-33, Judgement, 2 August 2001, and Judgement on Appeal, 19 April 2004 in the same case. 1407

290

chapter iv

as well as other relevant information on the circumstances surrounding the commission of the crime. These factors although not relevant to the determination of guilt, are critical to the determination of the appropriate sentence. Matters of sentencing have to be related to conviction which might prejudice the outcome on the merits. The accused is to be presumed innocent until found guilty, a finding which is reached at the deliberations after the closing of the hearings. Further, the defence will be expected to make submissions and present its arguments relating to the appropriate sentence, this at a stage of the proceedings where it is not known whether the accused will be convicted at all, and if so, on what counts of the indictment. Thus, the submission will be made relating to each possible conviction. The situation is even more complex when it can be expected without certainty though, that the accused will be found not guilty or where there are several different crimes in the indictment. This procedure also relates to the question of the extent of relevance of evidence in the Trial. In principle, only relevant evidence may be submitted during the trial. Due to the absence of a pre-established distinct sentencing hearing, evidence which is relevant only to sentencing should be considered relevant.1413 An example could be the prior conduct of the accused. While evidence of prior conduct might be seen as irrelevant during the trial, it is nonetheless an important factor to be considered in the determination of the appropriate sentence. Thus, if there is no separate proceeding for making submission and presenting evidence relating to sentencing, such evidence should be allowed during the trail, thus significantly widening the scope of evidence relevant in the trial. Due to these concerns, the Statute also allows for separate proceedings to be held on sentencing and creates a strong presumption in favor of a distinct sentencing hearing following conviction.1414 Article 76(2) states: “Except where Article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion, and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.”

The Trial Chamber may hold a further hearing, and shall hold such a hearing at the request of any of the parties, namely, if the Prosecutor or

1413 In the Tadic and Akayesu cases, the Trial Chamber of the ICTY and the ICTR refused to hear evidence relevant to sentencing only. See Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR, above note 1412, at 66–67. 1414 William A. Schabas, Sentencing, in COMMENTARY ON THE ROME STATUTE, above note 7, at 980.

the trial

291

the defence request a further hearing, the Trial Chamber will not reject such a request. It is unclear whether when and how the application is to be made, or whether the parties are entitled to present arguments when the Trial Chamber wishes to on its own motion hold such a hearing.1415 However, this provision does not address all of the issues that arise from Article 76(1). As it is not known during the trial whether there will be a separate sentencing hearing at the end, and thus it is not clear whether evidence relevant only to sentencing should at all be presented. When witnesses testify, it is advisable to question them on facts related to both the determination of guilt and the sentencing, as they might not be available at a later stage. The question is whether testimony relevant to sentencing, will be pass the relevancy test. In the event a separate hearing is held, Article 76(1) remains applicable and therefore evidence that was presented at the trial relevant to sentencing is still to be weighed in the determination of the appropriate sentence. Article 76(2) deals with a distinct sentencing hearing and as it stands, does not seem to apply in case of an admission of guilt. Consequently the accused who made an admission of guilt, seems to be prevented from presenting evidence relevant to the sentence. Article 65 on the proceedings on an admission of guilt does not cover sentencing issues. An admission of guilt can only lead to a conviction and the accused might have evidence in mitigation of sentence as most accused who stood trial. In case of an admission of guilt, only the essential facts were heard a separate sentencing hearing might meaningful more than in normal proceedings. The penalty might have been discussed between the Prosecutor and the defence, whatever the understanding reached, if there was any, is not binding on the Court. Article 65 should contain an explicit provision for a distinct sentencing hearing, as “obviously it cannot be the intent of the Statute to prevent the accused who has admitted guilt from submitting evidence in mitigation of sentence. Indeed, such evidence will be particularly relevant in cases where there is a guilty plea”.1416

The separate sentencing hearing issue is not new. In the first years of the ICTY, there was a clear separation between the two phases of the trial.1417 The ICTR also held separate hearings. However, in 1998 this practice ended and the tribunals adopted the civil-law approach where separate

1415

Ibid. Ibid., at 982. 1417 See the Tadic Opinion and Judgement, above note 331; Tadic Sentencing Judgement, above note 431. 1416

292

chapter iv

proceedings are not.1418 There was also no distinct sentencing phase at the Nuremberg or Tokyo Trials (and at the American Military Tribunals for that matter), and the verdicts were pronounced together with the sentences. The British Military Tribunals, on the other hand, held separate proceedings in some cases.1419 At the ICC, the sentence must be pronounced in public and wherever possible in the presence of the accused,1420 and “the decision or summary thereof shall be delivered in open court”. It seems that the right of the accused to be present is limited to the trial, as “wherever possible” does not necessarily mean that the sentence may not be pronounced in his absence, nonetheless, the necessary measures have to be taken to permit the accused to be present.1421 Unless he is ordered to appear, it is a right he may waive.

15. Penalties Article 77 of the Statute contains a closed list of the penalties which are within the power of the ICC to impose.1422 Capital punishment is not included in the list. None of the provisions in Article 77 or in any other relevant article in the Statute, has any effect on penalties provided by national laws.1423 The determination of the sentence is the subject of Article 78 which contains a very brief indication of factors to be taken into account in the determination of the sentence: the gravity of the crime and the individual circumstances of the convicted person. These issues are dealt with in detail by the Rules of Procedure. The Statute requires that credit shall be given for time served, and in case of multiple convictions, as well as the maximum and minimum sentences that may be imposed. The Statute is silent on the aims pursued in sentencing, Rule 145(1)(a) notably states that the totality of the sentence “must reflect the culpability of the convicted person”.

1418

Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR, above note 1412, at 67. 1419 William A. Schabas, Symposium: Justice in Cataclysm Criminal Trials in the Wake of Mass Violence: Article: Sentencing by International Tribunals: A Human Rights Approach, 7 Duke J. Comp. & Int’l L. 461 (1997), at 484; William A. Schabas, Sentencing, in COMMENTARY ON THE ROME STATUTE, above note 7, at 981. 1420 Article 76(4) of the Rome Statute. 1421 See William A. Schabas, Sentencing, in COMMENTARY ON THE ROME STATUTE, above note 7, at 983. 1422 Rolf Einar Fife, Applicable Penalties, in ibid., at 986. 1423 Article 80 of the Rome Statute. See Rolf Einar Fife, Non-Prejudice to National Application of Penalties and National Laws, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1009.

the trial 15.1

293

Imprisonment

The Court may impose a penalty of imprisonment,1424 either for a specified number of up to thirty years,1425 or life imprisonment.1426 In cases of multiple convictions, the Court is to pronounce a separate sentence for each crime as well as a joint sentence specifying the total period of imprisonment. A joint sentence may not fall below the highest individual sentence, and may not exceed imprisonment of 30 years or in the appropriate circumstances, life imprisonment.1427 As a penalty in addition to imprisonment,1428 the Court may also order that the accused pay a fine1429 and the forfeiture of proceeds, property and assets derived from the crime.1430 The Statute lists the penalties applicable for all crimes within the jurisdiction of the Court, without providing specific penalties for the different crimes. Maximum and minimum terms of imprisonment, the inclusion of imprisonment for life and the inclusion of the death penalty, were the subject of a major debate during the drafting of the Rome Statute.1431 A compromise was reached1432 and the formula finally agreed upon was that there be no minimum terms of imprisonment, either in general or specific for the different crimes. Moreover, prison sentences are generally limited to a specified number of years with 30 years being the maximum, unless the “extreme gravity of the crime and the individual circumstances of the convicted person” justify a term of life imprisonment. The Statutes of the ad hoc Tribunals do not include an explicit reference to life imprisonment. Terms of prison sentences were provided by the Rules: “A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life.”1433 1424

Article 77(1) of the Rome Statute. Ibid., Article 77(1)(a). 1426 Ibid., Article 77(1)(b). 1427 Ibid., Article 78(3). See William A. Schabas, Penalties, in THE ROME STATUTE OF THE ICC, above note 669, at 1529–30. 1428 Article 77(2) of the Rome Statute. 1429 Ibid., Article 77(2)(a). 1430 Ibid., Article 77(2)(b). 1431 On various issues relating to the death penalty in international and national law, see Kyron Huigens, Rethinking the Penalty Phase, 32 Ariz. St. L.J. (2000) 1195; Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. (1997) 319; R. George Wright, The Death Penalty and the Way We Think Now, 33 Loy. L.A. L. Rev. (2000) 533; Rolf Einar Fife, Non-Prejudice to National Application of Penalties and National Laws, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1009–1012; Rodney Dixon, Karim Khan and Richard May eds., ARCHBOLD INTERNATIONAL CRIMINAL COURTS: PRACTICE, PROCEDURE AND EVIDENCE, London, Sweet and Maxwell (2003), at 482 (hereinafter “ARCHBOLD, INTERNATIONAL CRIMINAL COURTS”). 1432 Rolf Einar Fife, Applicable Penalties, in COMMENTARY ON THE ROME STATUTE, above note 7, at 986–992. 1433 Rule 101(A) of the Rules of Procedure and Evidence of the ICTY and of the ICTR. 1425

294

chapter iv

In the Rome Statute, that only the “extreme gravity of the crime” combined with ‘the individual circumstances of the convicted person” justify imprisonment for life, is to be understood in conjunction with the crimes within the jurisdiction of the ICC: at this time war crimes, crimes against humanity and genocide, which as such already constitute crimes of extreme gravity. Thus, the inclusion of a further requirement of the “extreme gravity” of the crime for a sentence of life imprisonment to be imposed, implies that there needs to be extreme gravity of the crime in relations to the crimes within the jurisdiction of the Court.1434 Life imprisonment without possibility of parole or mitigation of sentence might be considered cruel, inhumane or degrading punishment.1435 The provisions regarding life imprisonment in the Rome Statute and the Rules of Procedure and Evidence should be seen jointly with the provisions on review.1436 Regarding imprisonment for a specified number of years, it has been suggested that this provision limits the Court to determine sentencing in years only, rather then months or days.1437 However, the term “a specified number of years”1438 does not imply that the Court may not determine a sentence that includes half a year, for example. A sentence of six and a half years still qualifies as a sentence for a specified number of years, and in appropriate cases there is no reason why the Court may not impose a sentence that includes part of a year. The question still remains whether the Court is at liberty to impose sentences of imprisonment for a term of less then one year. 15.2

Aggravating and Mitigating Circumstances

Article 78(1) states that in the determining of the sentence, “[T]he Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person”.

1434 See discussion in Rolf Einar Fife, Applicable Penalties, in COMMENTARY ON THE ROME STATUTE, above note 7, at 995. 1435 William A. Schabas, Penalties, in THE ROME STATUTE OF THE ICC, above note 669, at 1509. Also see discussion therein on the issues of pardons and mitigations of sentence. 1436 For an examination of these procedures, see ARCHBOLD, INTERNATIONAL CRIMINAL COURTS, above note 1431, at 509–510. 1437 Rolf Einar Fife, Applicable Penalties, in COMMENTARY ON THE ROME STATUTE, above note 7, at 995. 1438 Article 77(1)(a) of the Rome Statute.

the trial

295

Rule 145 lists which factors the Court shall take into account and the balance to be established among them order to determine the appropriate sentence. The Court shall “bear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under article 77 must reflect the culpability of the convicted person”.1439

The Court shall balance all relevant factors including mitigating and aggravating factors, and consider both the circumstances of the crime and of the convicted person,1440 the extent of the damage caused and the harm caused to the victims and their families, the various circumstances of the crime and the convicted person,1441 as well as mitigating and aggravating circumstances as appropriate.1442 While the issue of mitigating circumstances has been extensively dealt with by previous international criminal tribunals, less so concerning aggravating circumstances. In the Erdemovic case the Trial Chamber stated: “The Trial Chamber holds the view that, when crimes against humanity are involved, the issue of the existence of any aggravating circumstances does not warrant consideration. Beyond the fact that the Statute contains no reference or definition in this respect, the Trial Chamber’s stance is consistent with that taken by the International Military Tribunal at Nuremberg which sentenced 12 accused who had been convicted of crimes against humanity to the harshest penalty, capital punishment, because mitigating circumstances had not been proved to its satisfaction. The Trial Chamber must, however, pursuant to the provisions of Article 24 of the Statute, consider circumstances surrounding the commission of the crime likely to characterize its gravity which might preclude any leniency stemming from mitigating circumstances.”1443

The ICC Statute provides a clear framework for the determination of the sentence in case of multiple convictions. Mitigating and aggravating factors to be considered in the determination of the sentence are dealt with extensively by the Rules of Procedure. The ad hoc Tribunals have substantial discretion in determining the appropriate sentence, their respective

1439

Rule 145(1)(a). Article 145(1)(b). See Prosecutor v. Nikolic, ICTY Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005. 1441 Article 145(1)(c). On how victims perceive the ICTY, see Sanja Kutnjak Ivkovic, Justice by the International Criminal Tribunal for the Former Yugoslavia, 37 Stan. J Int’l L. (2001), at 255. 1442 Rule 145(2). For a discussion of mitigating and aggravating circumstances, see ARCHBOLD, INTERNATIONAL CRIMINAL COURTS, above note 1431, at 488–497; William A. Schabas, Penalties, in THE ROME STATUTE OF THE ICC, above note 669, at 1521–1528; Clayton C. Ruby, SENTENCING, Buttersworth (4th ed., 1994), particularly Chapter 5. 1443 Above note 460. 1440

296

chapter iv

Statute and Rules are less elaborate; the Tribunals therefore had to had to establish guidelines and sentencing criteria.1444 The first two cases where the ICTY rendered a sentence were the Erdemovic case,1445 in which the accused entered a plea of guilt (as part of a plea-bargain),1446 and the Tadic case. In the first Erdemovic Sentencing Judgement,1447 the Court sentenced Erdemovic to ten years imprisonment, after accepting his guilty plea to one count of crimes against humanity. Erdemovic was found guilty of crimes against humanity for acts of murder, estimated at between ten and one hundred murders in which Erdemovic himself was personally involved, using an automatic weapon.1448 In its discussion of the specific factors relevant to the sentencing, the Court considered the extreme gravity of the crime as an aggravating circumstance. As mitigating circumstances: that the accused did not hold a position of authority within the army, his feelings of remorse, his cooperation with the Office of the Prosecutor, factor’s relating to the accused’s personality including his young age, and the fact that he poses no danger to society.1449 As noted above, the ICTY sentenced Erdemovic to ten years imprisonment. The Appeals Chamber decided that his guilty plea to one count of crimes against humanity was not informed and reversed the judgement.1450 Trial Chamber II then issued a new Sentencing judgement, after having accepted his guilty plea to one count of violations of the laws of customs of war.1451 As an aggravating factor, the Trial Chamber noted the magnitude of the crime and the accused’s role in it.1452 As mitigating factors, the Trial

1444

See above at 105 to 114 and accompanying notes. On the Erdemovic case, see Bruce J. Einhorn, Arthur Sinai, Paul Hoffman and Kitty Felde, The Prosecution of War Criminals and Violators of Human Rights in the United States, 19 Whittier L. Rev. (1997), at 300–301; Sienho Yee, The Erdemovic Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 Ga. J. Int’l & Comp. L. (1997) 263; Valerie Epps, Symposium: The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Soldier’s Obligation to Die When Ordered to Shoot Civilians or Face Death Himself, 37 New Eng.L. Rev. (2003), at 992–993. 1446 On the issue of plea-bargains and sentencing, see Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa. L. Rev. (2002) 1; Theresa Marie Clark, Transplant Justice?, above note 1123, at 88–110. Also see Prosecutor v. Sikirica, and Others, ICTY Case No. IT-95-8, Sentencing Judgement, 13 Nov. 2001. 1447 Erdemovic Sentencing Judgement I, above note 135. 1448 Mary Margaret Penrose, Spandau Revisited: The Question of Detention for International War Crimes, 16 N.Y.L. Sch. J. Hum. Rts. (2000), 553–4; Daniel B. Pickard, Proposed Sentencing Guidelines for the International Criminal Court, 20 Loy. L.A. Int’l & Comp. L.J. (1997), 134–7. 1449 On the issue of the relevance of the convicted person’s character and conduct, see Benjamin B. Sendor, The Relevance of Conduct and Character to Guilt and Punishment, 10 ND J.L. Ethics & Pub Pol’y (1996) 99. 1450 Erdemovic Judgement II, above note 76, para. 17–21. 1451 Ibid., Sentencing Judgement III, above note 177, para. 8. 1452 Ibid., at para. 15. 1445

the trial

297

Chamber noted the accused’s personal circumstances, including age, family and background, character, his admission of guilt, his remorse and cooperation with the office of the Prosecutor, his state of duress.1453 Moreover, the Trial Chamber noted that while not bound by the plea-bargain agreement, “the Trial Chamber has taken it into careful consideration in determining the sentence to be imposed upon the accused”.1454 Having considered these factors, the Trial Chamber sentenced Erdemovic to five years imprisonment. The second sentencing judgement before the ICTY was in the case of Dusko Tadic. He was found guilty by the Trail Chamber of crimes against humanity, persecution, and of violations of the laws or customs of war which consisted of killings, beatings, forced transfers and of participation in an attack on the town of Kozarac.1455 In its determination of the appropriate sentence, the Trial Chamber noted the circumstances of the crimes as an aggravating factor,1456 as well as his “awareness and support” towards the crime.1457 Moreover, the Trial Chamber noted that Tadic “in no relevant way cooperated with the Prosecutor . . .”.1458 In terms of mitigating circumstances, the defence claimed that Tadic was a law-abiding and wellrespected member of the community before the conflict. In response, the Trail Chamber stated: “. . . this, if anything, aggravates more than it mitigates: for such a man to have committed these crimes requires an even greater evil will on his part than that for lesser men.”1459

The Trail Chamber also considered Tadic’s personal circumstances, and decided that they should be considered against the background of the conflict as a whole and held that “This is not to say that his criminal culpability is to be measured by a comparison with the alleged acts of other persons known and unknown to the Trial Chamber”.1460

The Chamber ultimately sentenced Tadic to terms of imprisonment ranging from six years for cruel treatment to twenty years for acts of persecution 1453 Ibid., para. 16–17. On the defence of duress, see Sean D. Murphy, Developments in International Criminal Law: Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 A.J.I.L. 57 (1999), at 92–3. On the issue of personal circumstances, see for example the Tadic Judgement in Sentencing Appeals, above note 438. 1454 Erdemovic Sentencing Judgement III, above note 177, para. 19. 1455 Tadic Sentencing Judgement, above note 431, para. 2. 1456 Ibid., at para. 56. 1457 Ibid., at para. 57. 1458 Ibid., at para. 58. 1459 Ibid., at para. 59. 1460 Ibid., at para. 70.

298

chapter iv

including killings.1461 These terms were to be served concurrently, consequently Tadic was sentenced to twenty years imprisonment (if they were not to be served concurrently, the sentences for the various counts would have amounted to 97 years imprisonment!). The Appeals Chamber accepted parts of the Prosecutor’s cross-appeal, and found Tadic guilty of further charges which constituted crimes against humanity and violations of the laws or customs of war, which included killings and torture or inhumane treatment.1462 In the second Sentencing Judgement, the Trail Chamber discussed the previous Sentencing Judgement of the Trial Chamber and the Appeals Chamber.1463 Finally, the Trail Chamber sentenced Tadic for further counts for periods of between six and 25 years1464 which are to be served concurrently inter se, and in relation to the previous sentences imposed (if the terms were not concurrent, the total imprisonment after the second Sentencing Judgement, would have amounted to 118 years; in total the term of imprisonment would have amounted to 215 years). In the Sentencing Appeal, the Appeals Chamber decided that sentences of 24 and 25 years for crimes of murder and willful killings were excessive, and imposed a sentence of 20 years instead for each of those counts.1465 The Appeals Chamber accepted the ground of appeal as “there is in law no distinction between the seriousness of a crime against humanity and that of a war crime”,1466 in direct contrast with the Appeals Chamber decision in the Erdomovic Case.1467 Nikolic was sentenced to 23 years imprisonment, after the Trial Chamber rejected the Prosecutor’s recommendation and the concurrent plea agreement,1468 and stating that if it weren’t for the mitigating circumstances, the crimes warrant life imprisonment.1469 The Appeals Chamber upheld the

1461 On sentencing in cases of crimes against humanity, see Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int’l L.J. (2002), 312–314. 1462 Tadic Appeal Judgement, above note 839, para. 327. 1463 Ibid., Sentencing Judgement, above note 431, para. 7 and 28. 1464 Ibid., para. 32. 1465 Tadic Judgement in Sentencing Appeals, above note 438, para. 55–58. 1466 Ibid., at para. 69. Judge Cassese dissented on this point. 1467 Erdomovic case, above note 437. On the issue of the hierarchy of crimes, see Allison Marston Danner, Construction a Hierarchy of Crimes in International Criminal Law Sentencing, 87 Va. L. Rev. (2001) 415; Mark Jennings, Determination of Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1002. 1468 Prosecutor v. Nikolic, ICTY Case No. IT-94-2-S, Sentencing Judgement, 18 December 2003, para. 214: “In conclusion, taking into consideration only the gravity of the crime and all the accepted aggravating circumstances, the Trial Chamber finds that no other punishment could be imposed except a sentence of imprisonment for a term up to and including the remainder of the Accused’s life. There are, however, mitigating circumstances to which the Trial Chamber will now turn”. (original in bold). 1469 Ibid., at para. 284.

the trial

299

decision, other than the fact that it decided that the Trial Chamber attached too much weight to the possibility of an early release,1470 and therefore shortened the sentence to 20 years.1471 In its decision, the Appeals Chamber dealt extensively with various issues relevant to sentencing. In relation to the question of the guidance afforded by sentences of previous cases, the Appeals Chamber stated: “The guidance that may be provided by previous sentences rendered by the International Tribunal and the ICTR is not only ‘very limited’ but is also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence. The reason for this is twofold. First, whereas such comparison with previous cases may only be undertaken where the offences are the same and were committed in substantially similar circumstances, when differences are more significant than similarities or mitigating and aggravating factors differ, different sentencing might be justified. Second, Trial Chambers have an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case, as the triers of fact. . . .”1472

Nonetheless, the Appeals Chamber of the ICTY examined sentences in previous cases.1473 It seems quite obvious that if the precedential value of such decisions within the ICTY itself is severely limited, their value before the ICC might be even lower. The ICTY has also dealt with the issues of the theoretical basis for punishment from a perspective of the purposes of the Tribunal. This issue drew attention and criticism,1474 particularly on the role of the ICTY and the ICTR, and discussions on alternative means to do justice.1475 1470

Ibid., Judgement on Sentencing Appeal, 4 February 2005, para. 97. Ibid., in the disposition. 1472 Ibid., at para. 19. 1473 Prosecutor v. Delalic and Others, ICTY Case No. 96–21, Appeals Judgement, 20 February 2001, para. 829–834. Moreover, in this case the Appeals Chamber ruled that the sentence for one of those convicted was too low due to it being the same as that handed down in the Aleksovski case (See para. 759). On this issue, see Allison Marston Danner, Construction a Hierarchy of Crimes in International Criminal Law Sentencing, above note 1467, at 436. 1474 See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659 (1992); Stephanos Bibas and Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. (2004), at 85; Jose E. Alvarez, Rush to Closure: Lessons of the Tadic Judgment, 96 Mich. L. Rev. (1998), at 2031; Allison Marston Danner, Construction a Hierarchy of Crimes in International Criminal Law Sentencing, above note 1479, at 438–453; Steven Glickman, Victims’ Justice: Legitimizing the Sentencing Regime of the International Criminal Court, 43 Colum. J. Transnat’l L. (2004), at 229; Rolf Einar Fife, Applicable Penalties, in COMMENTARY ON THE ROME STATUTE, above note 7, at 986; ARCHBOLD, INTERNATIONAL CRIMINAL COURTS, above note 1431, at 483–5; William A. Schabas, Penalties, in THE ROME STATUTE OF THE ICC, above note 669, at 1517–1519; Clayton C. Ruby, SENTENCING, above note 1442, 1–22. For a discussion of the deterrence value of the ICC, see Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. (2001), at 156. 1475 Todd Howland and William Calathes, The U.N.’s International Criminal Tribunal, Is It 1471

300

chapter iv

In these and other cases, ICTY handed down relatively lenient sentences. In the Erdemovic case, the accused was found personally responsible for several counts of murder, and considering the extreme state of duress he was in, the sentence imposed was of 5 years imprisonment.1476 In the Tadic case, the final sentence may no be considered a light sentence (20 years imprisonment), the sentence is not severe in light of the crimes committed. Moreover, the Trial Chamber’s use of concurrent sentences in that case is troubling. The Trial Chamber sentenced Tadic to a total 215 years, and yet ruled that they will be served concurrently and therefore he should only serve 25 years in total. Moreover, the separate sentences were imposed for different and distinct offences, and therefore it is unclear why the sentences should be concurrent.1477 It is submitted that the ICTY and the ICTR have, in certain cases, placed too much emphasis on mitigating circumstances even in cases of extremely grave crimes.1478 15.3

Imposition of Fines and Orders of Forfeiture

Under Article 77, in addition to imprisonment, the Court may order fines, forfeiture of proceeds, property and assets of the convicted person,1479 in reparation of damage and injuries caused to the victims. The precondition is that the property be derived directly or indirectly from the crimes committed against the specific victims “without prejudice to the rights of bona fide third parties”.1480 The cooperation of sentenced persons in locating such properties is a factor for the reduction of the sentence under Article 110.1481 Any fine imposed may not exceed 75 percent of the person’s assets, and the financial needs of the convicted person and his dependants are to be taken into account.1482 Justice or Jingoism for Rwanda? A Call for Transformation, 39 Va. J. Int’l L. (1998), at 135; Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U.L. Rev. (2000) 1221; Sanja Kutnjak Ivkovic, Justice by the International Criminal Tribunal for the Former Yugoslavia, above note 1441, at 255; Jennifer J. Llewellyn and Robert Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission, 49 Univ. of Toronto L.J. (1999), at 355. 1476 On this issue, see Rosa Ehrenreich Brooks, Law in the Heart of Darkness: Atrocity & Duress, 43 Va. J. Int’l L. (2003), at 861. 1477 William A. Schabas, Penalties, in THE ROME STATUTE OF THE ICC, above note 669, at 1530. On the issue of consecutive and concurrent sentences, see Clayton C. Ruby, SENTENCING, above note 1442, particularly Chapter 14. 1478 Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR, above note 1412, at 61–66. 1479 Ibid., Article 77(2). 1480 Ibid., Article 77(2)(b). 1481 Ibid., Article 110. 1482 Rule 146.

the trial

301

The Statute of the ad hoc Tribunals provide for the return of property and proceeds,1483 they do not include the possibility for the imposition of fines other than in proceedings of contempt.1484 The Rome Statute is the first instrument providing that fines may be imposed as a penalty in international criminal proceedings.1485 The Statute states that the Court may order fines according to the “criteria provided for in the Rules of Procedure and Evidence”.1486 Rule 146 contains detailed criteria for the imposition of fines. In order to determine whether to impose a fine in addition to a prison sentence, the Court shall consider whether imprisonment is a sufficient penalty and shall “give due consideration to the financial capacity of the convicted person, including any order for forfeiture in accordance with Article 77 paragraph 2 (b), and, as appropriate, any orders for reparation in accordance with Article 75.”

The Court shall further consider to which degree the crime was committed for personal financial gain.1487 Rule 146(2) provides additional factors to be taken into consideration for determining the amount of the fine such as damage and injuries caused by the crime and the proportionate gains derived by the perpetrator. The amount of a fine may not exceed 75 percent of the identifiable assets of the convicted person after deducting “an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants.”1488 The Court shall allow the convicted person reasonable time to pay the fine, and may order that the fine be paid either as a lump sum or by way or installments.1489 The Court also may, as an option, calculate the fine according to a system of daily fines, with a minimum duration of 30 days and a maximum duration of five years. The imposition of fines might require further hearings for the presentation of evidence and submissions relating to the amount of the fine. Rule 146 does not go into any detail concerning the convicted person’s identifiable assets nor the “appropriate amount” of the financial needs of the convicted person and his or her dependants. Such matters cannot be decided in the abstract and vary from case to case. An “appropriate” in one case might 1483 Article 24 of the Statute of the ICTY; Article 23 Statute of the ICTR. On the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners, see the Tadic Sentencing Judgement, above note 431. 1484 ARCHBOLD, INTERNATIONAL CRIMINAL COURTS, above note 1431, at 482. 1485 Rolf Einar Fife, Applicable Penalties, in COMMENTARY ON THE ROME STATUTE, above note 7, at 992. 1486 Article 77(2)(a) of the Statute. 1487 Rule 146(1). 1488 Rule 146(2). 1489 Rule 146(3).

302

chapter iv

be very inappropriate in another one, and the financial needs of the convicted person depend on the country where the sentence will be executed. Willful non-payment of fines may lead to an extension of the term of imprisonment of the convicted person except in case of life imprisonment.

CHAPTER V

THE POST TRIAL PROCEEDINGS

Justice may err and judicial decision may be subject to errors of law, or errors of fact.1490 “Even a final court of appeal makes errors, as witness cases in which it overrules its own previous decisions. The reason, if one were needed, is that it ‘is common knowledge that courts of law and other tribunals, however praiseworthy their intentions may be, are not infallible’ ”.1491

The Rome Statute and the Rules of Procedure and Evidence provide for the right of appeal1492 as well as for review proceedings.1493 After the period for filing an appeal has expired, or upon the final disposition of the case, any resulting sentence is to be enforced immediately. Only the Court, and not the state of enforcement, may reduce the sentence.1494 It cannot be excluded that a decision or a judgement may be a miscarriage of justice. As opposed to the ICTY and ICTR Statutes, the Rome Statute provides for compensation to “[a]nyone who has been a victim of unlawful arrest or detention”,1495 or in case of proven miscarriage of justice.1496

1490 References to Appeals and Revision can be found in many modern statutes, particularly in relation to the imposition of penalties. See e.g. Article 60 of the Statute of the International Court of Justice, as opposed to Articles 43 and 44 of the European Convention on Human Rights, Article 14(5) of the ICCPR, Article 2 of the seventh Protocol of the European Convention on Human Rights. These examples and others are brought by many scholars. See e.g. Virginia Morris, Michael B. Scharf, AN INSIDER’S GUIDE TO THE ICTY, above note 62, at 293–301; Christopher Staker, Appeal against Decision of Acquittal or Conviction or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1016–1017 (Hereinafter “Appeal against Acquittal or Sentence”). 1491 Separate Opinion of Judge Shahabuddeen, Prosecutor v. Barayagwiza, Case No. ICTR- 97-19 (Appeals Chamber), Decision, 3 November 1999. 1492 Article 81 and 82 of the Rome Statute; Rules 149 to 158. 1493 Ibid., Article 84; Rules 159 to 161. 1494 Ibid., Article 110. 1495 Ibid., Article 84 Article 85(1). 1496 Ibid., Article 85(2) and 85(3). In the Furundzija case, the Appeals Chamber adopted the Black’s Law Dictionary’s definition of miscarriage of justice namely ‘a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime’ ” (footnote omitted). Prosecutor v. Furundzija, ICTY Case No. IT-95-17/1-A, Judgement, 21 July 2000, para. 37.

304

chapter v 1. Appeal and Revision

While provisions for appeal of judgements of a Court are common in national legal systems, this was not the case on the international level, until recognized by the Statutes of the ICTY and the ICTR.1497 The ICTY was the first International Tribunal that recognized the right to appeal considered “a fundamental element of individual civil and political right.” The ICTR followed the same path and the case law of their Appeals Chamber constitutes the only precedent of international criminal appeals proceedings.1498 The right of appeal at the ICC is recognized to both, the Prosecution and the defence. The ICCPR, the ICTY, the ICTR and the ILC Draft Statute provide the right of appeal by a convicted person,1499 the Rome Statute also allows appeals by the Prosecutor against acquittal.1500 The right of appeal is recognized against decision of acquittal, of conviction, or against the sentence.

1497 See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1016. Staker clearly shows that despite the fact that the right for an appeal is recognized on the international level, it was not until the establishment of the ICTY and in the ICTR, that the principle has been firmly established in international practice. There is no right of appeal at the International Court of Justice. Article 60 of the Statute of the Court states that judgements delivered by the ICJ “are final and without appeal”. In the European Court of Justice, appeals are possible against First Instance decisions, but for cases that come ab initio within the competence of the Court, no appeal may be filed against the Court’s judgements. Articles 43 and 44 of the European Convention on Human Rights established a mechanism for cases of the European Court of Human Rights to be referred to the Grand Chamber. The Nuremberg and Tokyo Tribunals Statutes did not provide for the right of appeal. According to Article 26 of the Charter of the International Military Tribunal the judgments of the Nuremberg Tribunal concerning the guilt or innocence of a defendant were final and not to subject to review. According to Article 17 to the Charter of the International Military Tribunal for the Far East the sentence of the Tokyo Tribunal could be reduced by the Supreme Commander of the Allies Powers (leniency only). While the international legal system acknowledges the right of appeal, for example Article 14(5) of the ICCPR and Article 2 of Protocol No. 7 to the European Convention on Human Rights recognize the right of review of a conviction or sentence, only in the Statutes of the ICTY and the ICTR the right of appeal was incorporated. 1498 See above at 115–127. 1499 Article 14(5) of the ICCPR; Article 25, Statute of the ICTY; Article 24, Statute of the ICTR; Article 48, ILC Draft Statute (see Report of the International Law Commission on the Work of its Forty-Sixth Session, Draft Statute for an International Criminal Court (1994) U.N. Doc. A/49/10 (1994), 125). The ICTY Statute recognized an appeal by the Prosecutor against a decision of acquittal. See Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1542; Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1015. For an opposing point of view, see Brady who claims that by allowing the Prosecutor to appeal against an acquittal, the Rome Statute mirrors the ICTY and ICTR. Helen Brady, Appeal and Revision, in THE ICC, ELEMENTS OF CRIME AND RPE, above note 671, at 575. 1500 Article 81(1)(a), of the Rome Statute.

the post trial proceedings

305

Further, under Rule 149 “. . . rules governing proceedings and the submission of evidence in the PreTrial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber”.

However, some of these Rules are inapplicable or unsuitable to appellate proceedings, and require adaptation and reinterpretation. For instance, certain issues are relevant only in appeal proceedings (for instance, the detention of an acquitted person). In the event the Appeals Chamber finds an appeal unfounded, it will be rejected.1501 Once the ICC decides upon a sentence, it becomes the only competent authority to review it.1502 Evidence might have been unavailable during the trial or new fact might be discovered1503 which, if known by the Court before the sentence was rendered, might have led to a completely different verdict. A key witness might be discovered to be lying years after a sentence handed down, documents might have been falsified, or more in general, the basis on which the guilt of the accused was established, does not exist or exists only partially. Due to the gravity of crimes that are within the jurisdiction of the Court, crimes should not go unpunished. A mistake may occur to the detriment of justice and it should not be underestimated that the Court is shaping a worldwide policy of fighting some of the most heinous crimes known to mankind.1504 The right of appeal granted to the prosecution is therefore justified, although not against any decision.

1501

Article 84(2)(a). Article 105(2). Such a specific Article is not to be found with regards to revision. However, there is no given right for a revision, and states are unauthorized to revise the convictions of the Court. 1503 Discovery of a new fact seems to be the most frequent ground for revision; see AnneMarie La Rosa, Revision Procedure under the ICC Statute, in THE ROME STATUTE OF THE ICC, above note 669, at 1565. In the Blaskic appeal, an “enormous amount of additional evidence” was submitted, (Prosecutor v. Blaskic, ICTY Case No. IT-95-14-A, Judgement, 29 July 2004, para. 4). The evidence was not available during the trail among others, “due to the lack of cooperation of the Republic of Croatia at the trial stage and to the delay in the opening of its archives, which only occurred following the death of former president Franjo Tudjman on 10 December 1999, thus preventing the parties from availing themselves of the materials contained therein at trial” Ibid., (footnote omitted). Blaskic was sentenced to 45 years imprisonment by the Trial Chamber. In this case, the Appeals Chamber was not requested to affirm or to revise the sentence “but rather to impose a sentence de novo”, ibid., (para. 726), and it did so on the basis of its own findings. The appellant was sentenced to nine years imprisonment by the Appeals Chamber, eight of which he had already served since he surrendered to the Tribunal in April 1996. 1504 See e.g. Helen Brady, Appeal and Revision, in THE ICC, ELEMENTS OF CRIMES AND RPE, above note 671, at 575 and the references therein. 1502

chapter v

306 1.1

Appeal Against Decisions of Acquittal or Conviction

Under Article 81(1) “a decision under Article 74” may be appealed by the Prosecutor or by the convicted person in accordance with the Rules of Procedure and Evidence.1505 It is not unequivocal whether Article 74 is intended to cover judgements only or whether it might extend to interim decisions and rulings as well.1506 In view of the title of Article 81 “Appeal Against Decision of Acquittal or Conviction or Against Sentence”, this provision clearly seems to be limited to final judgements. Moreover, Article 74 relates to the Trial Chamber’s decision as one that should “be based on its evaluation of the evidence and the entire proceedings”, supporting an interpretation of Article 81(1) as referring only to final decisions of the Trial’s Chamber’s.1507 The addition of Article 82 allowing appeals “against other decisions” supports this conclusion as well. However, a different interpretation according to which Article 81 allowing appeals against any decision of the Trial Chamber, would not make Article 82 superfluous, since it permits appeals against decisions of the Pre-Trial Chamber that are not included in the definition of “a decision under Article 74”.1508 1.2

The Grounds of Appeal

The right of appeal against decisions of acquittal or conviction is recognized to both the Prosecutor and the convicted person (or the Prosecutor on his behalf ), be it under Article 74, on the grounds of procedural error, error of fact or error of law.1509 These three grounds of appeal are significantly wider than those recognized by the ad hoc Tribunals prior to the Rome Statute. The grounds of appeal under the ICTY and ICTR Statutes are: “(a) an error of a question of law invaliding the decision; or (b) an error of fact which has occasioned a miscarriage of justice.”1510

The addition of “procedural error” as a further ground of appeal, is meaningful though some of the appeals based on this ground could have been heard on the ground of an “error of law”.1511 The Rome Statute does not require that injustice be proven as a precondition to appeal, and left the

1505

Article 81(1) of the Rome Statute. See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1018. 1507 Article 74 of the Rome Statute. 1508 Christopher Staker, Appeal against Decision of Acquittal or against Sentence, COMMENTARY ON THE ROME STATUTE at 1018. See below at 204 for interlocutory appeals. 1509 Article 81(1)(a) and 81(1)(b) of the Rome Statute. 1510 Article 25 of the ICTY Statute and Article 24 of the ICTR Statute. 1511 See below at Chapter V.1. 1506

the post trial proceedings

307

result of the error that might have occurred to the appreciation of the Appeals Chambers.1512 The right of appeal granted to the convicted person (or the Prosecutor on his behalf ) seems to be more extensive than that provided for the Prosecutor, and the former may appeal a decision on “any other ground that affects the fairness or reliability of the proceedings or decision”.1513 The right has no precedent in international criminal proceedings. The right of appeal by the Prosecutor under Article 81, reminds of the civil law appeals process in states where the power of the Prosecutor to appeal against acquittal constitutes an integral feature of the system. The recognition of the right of the Prosecutor to appeal on behalf of the convicted person goes beyond his prosecutorial powers and reflects his position as “an organ of the tribunal and an organ of international criminal justice”,1514 and his unprejudiced duty to truth and justice. 1512 Some scholars hold the view that the Appeals Chambers will continue to examine the validity of the grounds appealed upon before deciding whether or not the appeal is admissible. See Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1545. 1513 Article 81(1)(b)(iv) of the Rome Statute. Opinions diverged on the extent of the right of appeal recognized to the Prosecutor. The ILC Report proposed that the right of appeal should be granted to both to the Prosecutor and to the convicted person [Report of the International Law Commission on the Work of its Forty-Sixth Session, Draft Statute for an International Criminal Court (1994) U.N. Doc. A/49/10 (1994)]. However, under the revised draft statute adopted by the ILC “it is not open to the Appeals Chamber to reverse or amend a decision of a Trial Chamber acquitting an accused on a given charge as distinct form annulling that decision as a prelude to a new trial”. Ibid. In the context of the Preparatory Committee in 1996, some participants continued to argue for equality, others suggested to limit the right of appeal given to the Prosecutor on grounds of error of law, and to extend the right of appeal granted to the convicted person to allow appeals on any substantive ground (see Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/51/22, Vol. I, par. 295). The Zutphen Report included two alternative proposals, both granting equal right of appeal to both the Prosecutor and the convicted person: one, included three grounds for both parties to file an appeal (procedural error, error of fact, or error of law); the second proposal allowed appeals to both parties without any specific grounds [see Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, U.N. Doc. A/AC.249/1998/L.13, p. 134]. In the 1998 Preparatory Committee, the forth ground of appeal was included, permitting only the convicted person or the Prosecutor on his behalf to appeal on “[a]ny other ground that affects the fairness or reliability of the proceedings or decision” (see Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, U.N. Doc. A/CONF.183/2/Add.1, p. 149). See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7 at 1019. 1514 The aim of the Prosecutor is not only “to secure a conviction but to present the case for the prosecution, which includes not only inculpatory, but also exculpatory evidence, in order to assist the Chamber to discover the truth in a judicial setting”. Ibid., at 1018–1019; see also Prosecutor v. Kuperskic and Others, ICTY Case No. IT-9516-T, Decision on Communication Between the Parties and their Witnesses, 21 Sept. 1998.

308

chapter v

The Rome Statute does not recognize appellate rights to a state concerned, to the victims or their representatives against decisions of acquittal or conviction. An exception is the appeal of victims to confirm, reverse or amend a reparation orders under Rule 153. i) Procedural error—The Prosecutor and the convicted person1515 may file an appeal on the ground of a procedural error. The meaning of “a procedural error” in that context is meant to include any insubordination with mandatory procedural requirements of the Rome Statute and the Rules of Procedure and Evidence,1516 or procedural decisions that constitute a misuse of discretion or erroneous appreciation.1517 There might be a considerable overlap between the grounds of “procedural error” and “error of law”, in case the Court erroneously interprets procedural provisions of the Statute or the Rules of Procedure and Evidence.1518 Furthermore, it might be argued that almost anything affecting the fairness and reliability of the trial would be considered a substantive procedural error, incompatible with the procedural requirement for “a fair hearing conducted impartially” under Article 67.1519 ii) Error of fact—The right of appeal on the ground of an error of fact is granted to the Prosecutor and to the convicted person.1520 In this context, appeals proceedings may be seen as a procedure of a corrective nature (different from a totally new hearing of the case), and the appellant may not request the Appeal Chamber to revise all the findings of the Trial Chamber, but point out the error of fact1521 which in his opinion has occurred, such as that a factual finding by the Trial Chamber was indefensible, or was An appeal of the Prosecutor on behalf or by the convicted person, may not lead to a judgement to his/her detriment, (Article 83(2) of the Rome Statute). Consequently, prosecutorial appeals on behalf of a convicted person will be limited to cases where the convict was not or poorly represented for instance, see Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE of the ICC, above note 669, at 1544. 1515 Article 81(1)(a)(1) and (b)(1) of the Rome Statute. 1516 A procedural error is one that occurs any time from the initial appearance of the indicted person or the accused until the last decision of the Court on matters of revision or relating to the enforcement of a sentence. 1517 See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, COMMENTARY ON THE ROME STATUTE, above note 7, at 1019; Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1544–5. 1518 See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1019. 1519 Article 67(1), Rome Statute. 1520 Ibid., Article 81(1)(b)(ii). 1521 See Prosecutor v. Dragan Nikolic, ICTY Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005, where the Appeals Chamber found that the Trial Chamber erred as to the time he would actually serve in detention.

the post trial proceedings

309

lacking supportive evidence.1522 The factual findings of the Trial Chamber were made by a panel of three professional judges who had ample opportunity to observe the conduct of the witnesses testifying and to appreciate their credibility, and the Appeals Chamber ordinarily considers the established facts with a certain degree of deference.1523 iii) Error of law—The ground of an error of law includes any determination by the Trial Chamber regarding substantive1524 or procedural law of the Rome Statute and the Rules of Procedure and Evidence, or any issue of international law related to the case. iv) Grounds that affect the fairness or reliability of the proceedings or of the decision— The right of appeal on any other ground that affects the fairness or reliability of the proceedings or decision is granted only to the convicted person or to the Prosecutor on his behalf.1525 The fourth ground of appeal was made out of abundance of caution in order to include a more general provision allowing appeals by or on behalf of the convicted person. Its aim is to prevent a miscarriage of justice, although it is likely that any valid ground for appeal would fall in one of the prior three categories.1526 1.3

Appeal Against a Sentence

The right of appeal against a sentence is granted equally to both the Prosecutor and the convicted person,1527 who may appeal on the ground of

1522 See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1019. 1523 Ibid., at 1019–1020. 1524 Jelisic Appeal Judgement, above note 402; the Appeals Chamber found that the Trial Chamber erred in finding the convicted person guilty of two murders under counts 16 and 17 of the second amended indictment when he in fact pleaded guilty to only one of the murders. 1525 Article 81(1)(b)(iv), Rome Statute. 1526 Article 25 of the Statute of the ICTY and Article 24 of the Statute of the ICTR provide only two grounds for an appeal: an error of law and an error of fact, which were interpreted to include different appeals, for instance an appeal against the exercise of discretion by a Trial Chamber deciding not to grant leave to amend an indictment (Prosecutor v. Kovacevic, ICTY Case No. IT-97-24AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998), and an appeal against ineffective assistance of counsel (Prosecutor v. Tadic, ICTY Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, App. Ch., 15 October 1998, para. 48–50, 65); see also Prosecutor v. Tadic, ICTY Case No. IT-94-1-, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, and ibid. Appeal Judgement on Allegations of Contempt against prior Counsel, Milan Vujin, Judgement, 27 February 2001. 1527 For sentencing appeals at the ICTY, see e.g., Prosecutor v. Aleksovski, ICTY Case

310

chapter v

disproportion between the crime and the sentence.1528 The possibility of prosecutorial appeals is not explicitly provided nor denied, and will depend on the perception of the Prosecutor’s role as an organ of international criminal justice An unequivocal test to determine the “disproportion between the crime and the sentence” is yet to be established, and will eventually be developed by the rulings of the Court.1529 Disproportion between the crime and the sentence constitutes a single ground of appeal against a sentence under Article 81(2) of the Statute though according to the common interpretation, it may however be linked to an error of fact, or an error of law. Pursuant to Article 83(2) the Appeals Chamber may hear cases where “the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error”.1530

When an appeal against the sentence only is brought, the Court may on its own initiative decide whether there are grounds on which the conviction itself might be set aside, wholly or in part, and invite the Prosecutor and the convicted person to submit further grounds.1531 Similarly, the Court may act proprio motu whether there are grounds to reduce the sentence.1532 In the Erdemovic case, although the Statute or Rules of the ICTY do not contain specific provision authorizing the Appeals Chamber to act on its own motion in matters of sentence or conviction, the Appeals Chamber revoked the conviction “pursuant to its inherent powers as an appellate body”.1533 No. IT-95-14/l, Judgement, 24 March 2000; Prosecutor v. Blaskic, ICTY Case No. IT95-14-A, Judgement, 29 July 2004 (alleged error of law); Prosecutor v. Dario Kordic and Mario Cerkez, ICTY Case No. IT-95-14/2-A, Judgement, 17 December 2004 (errors in sentencing, denial of due process of law, reversal of conviction); Kupreskic Appeal Judgement, above note 504, (revision of sentence; reversal of acquittal; immediate release of Zoran Kupreskic, Mirjan Kupreskic and Vlatko Kupreskic); Prosecutor v. Milorad Krnojelac, ICTY Case No. IT-97-25-A, Judgement, 17 September 2003 (reversal of acquittal, imposition of new sentence; Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Judgement, 25 February 2004 (the new sentence was based on new convictions entered on appeal). 1528 Article 81(2)(a) of the Rome Statute. 1529 See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1020. 1530 Article 83(2), Rome Statute. 1531 Ibid., Article 81(2)(b). 1532 Ibid., Article 81(2)(c). 1533 Prosecutor v. Erdemovic, ICTY Case No. IT-96-22-A, Judgement, 7 October 1997. The Appeals Chamber stated that it raised preliminary issues on its own motion “pursuant to its inherent powers as an appellate body once seized of an appeal lodged by either party pursuant to Article 25 of the Statute. The Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties” (para. 16).

the post trial proceedings

311

In general, the Appeals Chamber is vested with ample discretionary powers: it can either initiate proceedings or re-debate the evidence already presented and decided upon. The guidelines for doing so are to be determined by the Court. However, the discretion of the Court seems be in favor of the defendant only: where not asked by the parties to address a certain issue, it may only reduce a sentence or a charge on appeal.1534 1.4

Custody During Appeal Proceedings

Under Article 81(4) of the Statute, the execution of a judgement “shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings”, unless the Trial Chamber orders otherwise. According to Article 81(3)(a), pending an appeal, the convicted person is to remain in custody “[u]nless the Trial Chamber orders otherwise”.1535 It follows that, in case of conviction, the principle is that the person remain in custody during the appeals proceedings, the release is the exception. Conversely, an acquitted person, or a convicted person, whose time in custody exceeds the sentence of imprisonment imposed, must be released immediately, unless the Prosecutor filed an appeal.1536 Under these circumstances, release of the person is the principle, detention is exceptional. The exceptional circumstances justifying the detention of the person pending appeal, include the risk of flight, the seriousness of the offence, or the expected outcome of the appeal.1537 The Statute is silent on the conditions under which the person may be released pending appeal, for instance, bail, periodical report, surveillance, or any measure provided by the law of the state where the convict would reside in case of release pending the outcome of the appeal. It should be noted that the possibility to order less severe measures is disputed.1538

1534

Article 83(2) of the Rome Statute. Ibid., Article 81(3)(a). 1536 Ibid., Article 81(3)(b) and Article 81(3)(c). 1537 Ibid., Article 83(3)(c)(i). 1538 Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1021), deems such measures permissible, whereas Robert Roth and Marc Henzelin, (The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1547) disagrees “believing the silence of the Statute on this matter to be eloquent”. 1535

312

chapter v

1.5 Ne bis in Idem (Double Jeopardy) The principle that no one should be tried or punished twice for the same offence1539 is enshrined in different treaties,1540 Similarly, the scope of Article 20 of the Rome Statute aims to protect the accused against re-trial for the same offence he was already tried by the Court itself or by a domestic court.1541 The power afforded by the Rome Statute to the Prosecutor to appeal in case of acquittal of a person, raises complex issues. To view the question as a compromise between civil and common law1542 does not diminish the imbalance created. The “hybrid” or mixed system adopted for the proceedings of the ICC, does not prevent that, with the exception of the Pre-Trial Chamber, and some aspects of the appeals proceedings, these proceedings remain much more adversarial than civil law oriented. In the latter system, the judge investigating a case is not an opposed but a neutral party; he bases his report on the inculpatory and exculpatory evidence gathered and submits his findings to the “Procureur”. In the context of the ICC, the Prosecutor initiates criminal proceedings against the defendant, and is assigned to gather inculpatory as well as exculpatory evidence. However, there is no indication in the Statute or in the rules on how to ensure that the Prosecutor meets his or her responsibility to find and present exculpatory and not only inculpatory evidence. Even if serious efforts were deployed to gather any evidence, the Prosecutor remains the “adversary” until the end of the proceedings. Nonetheless, he may appeal a judgement of acquittal, even after that and for a second round. The question whether an appeal by the Prosecutor against an acquittal,1543 is compatible with the rule against double jeopardy, is adversarial in nature. 1539 In the Anglo-American law system, the trial ends with a conviction or acquittal. Appellate proceedings are seen as a post-conviction stage. In the continental law system, the criminal trial ends only after the appeal was heard and the verdict rendered by the court of appeals or upon expiration of the time within which the appeal may be filed. The determination as to whether there is double jeopardy or not, depends on what is considered to be a final judgement. See Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 175–176; see also Christoph Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 319. 1540 See Article 14 of the ICCPR; Article 4, Protocol 7 of the ECHR. For the legislative history regarding double jeopardy, see Christoph Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, above note 674, at 320. 1541 See above note 674. 1542 Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, above note 719, at 175. 1543 See Aleksovski Judgement, on appeal, above note 334. In this case, the Appeals Chamber held that “In imposing a revised sentence, the Appeals Chamber bears in mind the element of double jeopardy in this process in that the Appellant has had to appear for sentence

the post trial proceedings

313

In the Rome Statute the right of appeal is accorded widely—whether on matters of fact or on matters of law—both to the defendant and to the prosecution, reflecting a continental approach of the role of the Court in criminal proceedings. Consequently and depending on the circumstances of the case, the Appeals Chamber may decide to deal with the purported error the appeal was based on, or decide to start the trial de novo.1544 This may rarely be the case, however, double jeopardy cannot be seen as a theoretical issue. It should be analyzed thoroughly, and in view of the experience gained from the ad hoc Tribunals and in time from the ICC Appeals Chamber rulings, established whether the prosecutorial appeals expose the defendant to double jeopardy or not. 1.6

Appeal Against Other Decisions

Under Article 82 of the Statute, both parties may appeal against other decisions. Originally, the Draft Statute of the International Law Committee did not provide for appeals other than against judgements; it was added by the Preparatory Committee in 1998.1545 Appeals under Article 82 of

twice for the same conduct, suffering the consequent anxiety and distress, and also that he has been detained a second time after a period of release of nine months. Had it not been for these factors the sentence would have been considerably longer”, para. 190 (footnote omitted). In the Nikolic case, however, the Appeals Chamber stated that “Sentencing appeals, as with all appeals to the Appeals Chamber from a judgement of a Trial Chamber, are appeals stricto sensu. They are not trials de novo. This is clear from the terms of Article 25 of the Statute”, para. 19 (footnote omitted). Prosecutor v. Nikolic, ICTY Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005. 1544 This might be the case in any appeal, and might be necessary in appeals based on an error of fact or a procedural error that occurred at the initial stages of the proceedings and effected the whole trial from the point they occurred onward. 1545 The ILC Draft Statute provided only for appeals against judgments. A proposal for the inclusion of a provision dealing with appeals against other decisions, was brought up first by the 1996 Preparatory Committee and was intended to deal with interlocutory appeals, though neither the 1997 Preparatory Committee Report, nor the Zutphen Report included such provision. Interlocutory appeals were proposed to be included in an Article addressing the functions and powers of the Trial Chamber. In the 1998 Preparatory Committee Report, the issue was addressed in a separate article dealing with “Appeals Against Interlocutory Decisions”. Finally, the Article was called “Appeals Against Other Decisions”, as the drafters recognized that not all appeals under this Article will be taken at an interlocutory stage (for example appeals under Article 82(4)), though the vast majority will. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/51/22. Vol. II, 239–240; Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997, U.N. Doc. A/AC.249/1997/ L.8/Rev. 1, at 31; Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, U.N. Doc. A/AC.249/1998/L.13, 111–112; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, U.N. Doc. A/CONF.183/2/Add. 1, p. 151. See also Christopher

314

chapter v

the Statute may be brought against decisions of the Pre-Trial or the Trial Chamber. Unlike appeals against final judgements (under Article 81), appeals against other decisions (under Article 82) do not as such have suspensive effect. Unless the Appeals Chamber orders otherwise, the proceeding before the Court will continue undisturbed during appellate proceedings, 1546 unless the Court decides otherwise upon request.1547 Different appeals can be brought before the Court under other provisions of the Statute. Article 18(4) enables an appeal by the state concerned or by the Prosecutor against a ruling of the Pre-Trial Chamber.1548 Article 19 provides for appeals against decisions with respect to jurisdiction or admissibility to be brought before the Appeals Chamber.1549 Article 70 provides for the jurisdiction of the Court over offences against the administration of justice. The Appeal over handling of an investigation, as with the accepting of evidence, can be filed against the decisions of the Pre Trial Chambers, according to Article 56. It is submitted that other types of appeals might be possible, even though they were neither included in the Statute nor foreseen by its drafters.1550 Articles 81–82 provide that appeals under those Articles are to be in accordance with the Rules of Procedure and Evidence.1551 These provisions do not specify the matters that may be prescribed by the Rules. Article 51 states that the Rules of Procedure and Evidence “shall be consistent with this Statute”1552 and that “in the event of conflict between the Statute and the Rules of Procedure and Evidence the Statute shall prevail”.1553 Certain matters are expected to be dealt with be the Rules (such as matters of time limits to file an appeal, notification of the appeal etc.), less so for other issues, such as the possibility to narrow or expand the right of appeal as provided for in the Statute.1554 1) Appeals that do not require the leave of the Court—Article 82(1) provides for appeals by either party, against a decision with respect to jurisdiction or

Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1021. 1546 Article 82(3) of Rome Statute. 1547 Ibid., Article 82(3). 1548 Ibid., Article 18(4). 1549 Ibid., Article 19(6). 1550 Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1017. 1551 Article 81(1), 81(2)(a), 81(3)(c)(ii) and Article 82(1), 82(3), 83(4), of the Rome Statute. 1552 Ibid., Article 51(4). 1553 Ibid., Article 51(5). 1554 See Christopher Staker, Appeal against Decision of Acquittal or against Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1018.

the post trial proceedings

315

admissibility,1555 against a decision granting or denying release of the person being investigated or prosecuted,1556 or against a decision of the Pre-Trial Chamber to act on its own initiative under Article 56, paragraph 3,1557 without leave of the Court. The term “party” is not defined in the Rome Statute, or in the Rules of the ICC. The Appeals Chamber of the ICTY held that “The term “party” is defined in Rule 2 of the Rules of Procedure and Evidence as “The Prosecutor or the accused”. The detained witness . . . is therefore not a party”.1558

In the Rome Statute the concept of “party” is no doubt more extensive.1559 a) Appeals under Article 82(1)(a) are essentially filed against decisions on issues of jurisdiction, admissibility and applicable law,1560 without being restricted to appeals under the relevant provisions specifically.1561 In the context of the ICTY, the question of jurisdiction was interpreted extensively and appeals were filed against the very establishment of the Tribunal.1562 The question of admissibility might also be extended to enable an appellant to submit arguments on broader issues, such as political matters, or non-justiciable issues, although it is unlikely that such arguments will prevent the Court from hearing the case.1563 b) Appeals under subparagraph 82(1)(b) concern decisions granting or denying release of the person under investigation or being prosecuted, and are lodged at the initial stage of the proceedings before the Court. Further, Article 82(1)(b) allows appeals against decisions under Article 81(3), though 1555 Article 82(1)(a), Rome Statute. See Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1548. 1556 Ibid., Article 82(1)(b). 1557 Ibid., Article 82(1)(c). 1558 Dragan Opacic (a witness in the Tadic case—IT-94-1-T), Decision on Application for Leave to Appeal, 3 June 1997. In this case, a Bench of the Appeals Chamber stated that “The term ‘party’ is defined in Rule 2 of the Rules of Procedure and Evidence as ‘The Prosecutor or the accused’. The detained witness . . ., is therefore not a party”. 1559 A state may, as a party, upon leave of the Pre-Trial Chamber, appeal against a decision authorizing the Prosecutor to “take specific steps within the territory of a State Party” (Article 57(3)(d) of the Rome Statute). 1560 Article 5–21, Rome Statute. Article 18(4) and Article 19(6) explicitly provide for the possibility to appeal. 1561 Christopher Staker, Appeal against other Decisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1031. 1562 See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defendant Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995. The Appeals Chamber of the ICTY decided that the International Tribunal is empowered to pronounce upon the plea challenging the legality of the establishment of the International Tribunal (Disposition). 1563 Ibid., para. 23–25; See Separate Opinion of Judge Sidhwa, para. 34, and Dissenting Opinion of Judge Li.

316

chapter v

Article 81(3)(c)(ii) already does so explicitly. Article 82 is applicable to decisions rendered during the various stages of the trial rather than after conviction or sentencing. Subparagraph 82(1)(c) of the Statute allows appeals against decision of the Pre-Trial Chamber to act on its own initiative under Article 56, in case of failure of the prosecution to request the measures necessary in relation to a unique investigative opportunity. Under Article 56(3)(b), the Prosecutor alone may appeal against such a decision, according to Article 82(1)(c) either party may appeal. These two provision, complete rather than contradictory each another. 2) Appeals upon leave of the Court—Article 82(1)(d) provides for an interlocutory appeal against a decision involving issues that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, the Pre-Trial or Trial Chamber estimates, an immediate resolution by the Appeals Chamber may materially advance the proceedings. This Article does grants the Pre-Trial or Trial Chambers wide discretion to allow or to reject a request for leave to file interlocutory appeals as it is the relevant Chamber which will interpret and decide whether an issue “significantly”. Nonetheless, Article 82(1)(d) sets its own boundaries: a decision may be appealed only if the conditions provided by Article 82(1)(d) are fulfilled. Leave to appeal a decision does not preclude its outcome; the Appeals Chamber may or may not admit the appeal lodged. Not all questions likely to arise during a trial may be foreseen, and Article 82(1)(d) seems to fill the gap (with the exception of an indictment against which no appeal is allowed),1564 should a decision not be appealable under any other subparagraph of Article 82(1) and is bound to affect the proceedings or the outcome of the trial.1565 3) Appeal under Article 82(2) against a decision of the Pre-Trial Chamber under Article 57, paragraph 3(d). Under this provision, the Pre-Trial Chamber may authorize the Prosecutor “to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State . . .”.1566 The state concerned or the Prosecutor may appeal such decisions with the leave of the Pre-Trial Chamber.1567

1564 It is unclear whether a decision on the admissibility of evidence may or may not be appealed against under Article 82(1)(d). 1565 For further discussion see, Christopher Staker, Appeal against other Decisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1031–1032. 1566 Article 57(3)(d) of the Rome Statute. 1567 Ibid., Article 82(2).

the post trial proceedings

317

4) Appeal under Article 82(4)—the right of appeal against an order for reparations. Article 75 authorizes the Court to award reparations to victims,1568 through a directed order against a convicted person,1569 or through a Trust Fund provided for in the Statute.1570 Under Article 82(4) of the Statute, the victims through their legal representative, the convicted person or the owner in good faith of property adversely affected by an order under Article 75, may appeal against the order for reparations. Consequently, a right of appeal exists once the Court issued an order. There is nor explicit provision as to the possibility to appeal against a decision refusing to grant an order for reparations. The victims might be negatively affected and the right of appeal against such a decision, may be deduced from natural justice or be based an extensive interpretation of the Article 82(4) and Rule 150.1571 It is nowhere stated, whether in the Statute or in the Rules, that the appeals proceedings are to be heard in the presence of the indicted or acquitted person. Article 81 on “Appeal Against Decisions of Acquittal or Conviction or Against Sentences”, does not explicitly state that appeals are to be heard before the Appeals Chambers, but refers to the “the Court”.1572 Articles 82 and 83 imply that appeals under those Articles shall be heard by the Appeals Chamber.1573 Moreover, Article 83 states explicitly that for the purpose of appeals under Articles 81 and 83, the Appeals Chamber shall have all the powers of the Trial Chamber.1574 Unlike initiating appeal, for which there is no requirement that injustice be proven as a preliminary condition, a remedy on appeal would be granted only if the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error.1575 The Court will exercise discretion in the question whether the error appealed upon was “a significant element on the decision taken”,1576 and whether the appeal comes within 1568 Ibid., Article 75(1). See Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1551. 1569 Ibid., Article 75(2). 1570 Ibid., Article 75(2) and Article 79. 1571 For an interpretation including appeals against a decision refusing to make an order for reparations, see Christopher Staker, Appeal against other Decisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1032. 1572 Article 81(2)(b) and Article 81(2)(c) of the Rome Statute. 1573 Ibid., Article 82(1)(d), Article 82(3), and Article 83. 1574 Ibid., Article 83(1). 1575 Ibid., Article 83(2). See the Tadic Judgement, above note 839. 1576 Report of the International Law Commission on the work of its Forty-Six Session, Draft Statute for an International Criminal Court, 2 May–22 July 1994, U.N. Doc. A/49/10 (1994), at 127 (hereinafter “Report of the ILC 1994”). On the criteria applicable for reviewing alleged errors of law and of fact in the context of the ICTY, see Prosecutor v. Krnojelac, ICTY Case No. IT-97-25-A Judgement, 17 September 2003.

318

chapter v

the scope of the two conditions for remedy. Such issues should be weighed in favor of the defendant. Depending on the findings on the merits, the Appeals Chamber may reverse or amend the decision or sentence or order a new trial before a different Trial Chamber,1577 as suitable considering the circumstances of each case.1578 As for the Appeals Chamber authority to vary the sentence if found disproportionate to the crime,1579 it is unclear whether the Appeal Chamber has full discretion to do so under Article 83(3), or whether its authority is limited to the conditions required by Article 83(2) and will only be activated once the two merits has been proven.1580 For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for determination and report back accordingly, or may itself call evidence to decide on the issue.1581 Under Article 83(1) the Appeals Chamber has all the powers of the Trial Chamber.1582 This Article refers to the functions and powers of the Trial Chamber set out in Article 64,1583 powers which are very extensive, and it is held that the extent of power granted to the Appeals Chamber, might contradict the well established principle according to which the Trial Chamber rather than the Appeals Chamber, is the most competent body dealing with factual findings.1584 Although the Appeals Chamber has all necessary powers to form its own opinion on the verdict and sentence decided upon in the lower Court (among them the power to hear witnesses and to receive evidence), it might, however, not be the most appropriate forum to retry the case.1585 Accordingly, in case of an appeal based on an error of law, not concerning any factual findings, the Appeals Chamber should reverse the decision. When an appeal based on error of fact is brought before it, it might be more appropriate for the Appeals Chamber to remand the matter to be determined by the Trial Chamber. Where the 1577 Article 83(2)(a) and Article 83(2)(b) of the Rome Statute. In the original ILC Draft Statute the Appeals Chamber could not reverse or amend an acquittal, but only initiate a new trial on this ground. Report of the ILC 1994, above note 1557, at 126. 1578 Christopher Staker, Appeal against other Decisions, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1034. 1579 Article 83(3) of the Rome Statute. 1580 Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1557. 1581 When the decision or sentence has been appealed by the person convicted or by the Prosecutor on that person’s behalf, the Appeals Chambers may not amend the decision to convict’s detriment. Article 83(2) of the Rome Statute. 1582 Ibid., Article 83(1). 1583 Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1552. 1584 Ibid., at 1553. 1585 Ibid., Unlike the Rules of the ICTY and ICTR, the Rules of the ICC are silent as for the possibility of presenting new evidence during appeal; this is a matter to be clarified in the Court’s future decisions.

the post trial proceedings

319

appeal concerns an error of fact fundamentally influencing the findings in the case, a new trial should take place before the Trial Chamber.1586 The judgement of the Appeals Chamber, taken by a majority of the judges is to be delivered in open Court;1587 it may be delivered in the absence of the acquitted or convicted person.1588 The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may join a separate or dissenting opinion on a question of law, not on a question of fact.1589 The settlement in Article 83(4), enabling a separate or dissenting opinion to be delivered regarding only a question of law and not regarding factual findings, is the result of a compromise in the drafting process between the aspiration to progress the legal thinking and between the attempts to avoid the impression of a divided Court.1590 1.7

Time Limits for Filing an Appeal

The term “final decision” can be found several times in the Rome Statute.1591 In general: – Under Rule 150(1), an appeal against convictions, an acquittal, or a reparation order must be filed within 30 days from the date on which the party seeking to file the appeal is notified of the decision, the sentence or the order.1592 After 30 days since notification was received, the decision becomes final,1593 unless the time limit is extended by the Court for a “good cause” upon application by the party wishing to file the appeal.1594 1586 Christopher Staker, Proceedings on Appeal, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1034. 1587 Article 83(4) of the Rome Statute. 1588 Ibid., Article 83(5). Compare with Article 76(4) requiring the presence of the accused wherever possible when the sentence is pronounced by the Trial Chamber. 1589 Article 83(4), Rome Statute. The possibility for a separate or dissenting opinion in the Appeals Chamber was not provided for in the ILC Draft Statute and was added during the 1998 Preparatory Commission. For the legislative history see Christopher Staker, Proceedings on Appeal, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1035. 1590 Helen Brady and Mark Jennings, Appeal and Revision, in THE MAKING OF THE ROME STATUTE, above note 781, at 301; see also Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE ICC, above note 669, at 1557. 1591 See Articles 24(2), 84(1), 85(2) and (3) of the Rome Statute. 1592 As explicitly stated by Rule 154(1), this time limit is applicable in case of appeals filed under Article 81, para. 3(c)(ii ), or under Article 82, para. (1)(a) and (b). 1593 Rule 150(4). 1594 Rule 150(2).

320

chapter v

– In case of appeals against other decisions of the Court which do not require leave of the Court, Rule 154(1) provides a time limit of five days from the date on which “the party filing the appeal was notified of the decision”. Where an appeal is brought against a decision of the Pre-Trial Chamber to act on its own initiative,1595 the time limit provided by Rule 154(2) is of two days from the date of notification. After five days in the first case and two days in the second, the decision is considered as final.1596 – Under Rule 155(1), for appeals brought against other decisions which require leave of the Court, the party wishing to appeal, must within five days from the date of notification submit a written application to the Chamber stating the reasons for the request for leave to appeal. Where no written application is made within five days, the decision becomes final. There is no possibility provided for an extension of the time limit regarding “other decisions”, whether for appeals brought with or without leave of the Court.

2. Review of the Conviction or the Sentence Under Article 84 of the Statute, the convicted person, his representatives, or the Prosecutor on the person’s behalf, may apply to for a revision of a final judgement of conviction or sentence, when a new fact is discovered which was not known to the party seeking the revision at the time of the trial or the appeal, or where “decisive” evidence upon which the convictions is based was discovered to be false, forged or falsified evidence.1597 In national legal systems where a procedure of revision exists it is rarely being used by the defence and considered to be an irregular remedy of the Court.1598 The reasoning to preferring the path of appeal is often based on the reluctance of the Courts to re-open the case based on new facts and challenging the principle of res judicata.1599

1595

See Article 82, para. 1(c) and Article 56, para. 3 of the Rome Statute. See Rule 154(3) and Rule 150(4). 1597 Serious misconduct or serious breach of duty by one of the convicting judges is a further ground for review; see Article 84(1)(c) of the Rome Statute. Provisions for review may be found, among others, in the Statute of the ICTY (Article 26), of the ICTR (Article 25), as well in the Statute of the ICJ (Article 61). 1598 Christopher Staker, Revision of Conviction or Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1038. 1599 Ibid., at 1038. See also Anne-Marie La Rosa, Revision Procedure under the ICC Statute, in THE ROME STATUTE OF THE ICC, above note 669, at 1559–1560. 1596

the post trial proceedings 2.1

321

Decisions Subject to Revision

Article 84 of the Rome Statute states that a revision may be sought for a “final judgement of conviction or sentence”. The meaning of term “final” is that the decision constitutes chose jugée or res judicata, as there are no remedies to alter it, the decision is no more subject to appellate proceedings, the time limit to do so, has expired. A revision of a Court decision is by its nature, a very exceptional measure as it challenges the principle of res judicata and the principle that a person which was finally convicted or acquitted may not to be tried for the same offence. It is, however the only proceeding left to redress a miscarriage of justice, or a gross error. At the time the decision was rendered it was based on evidence submitted during the trial, which proved to be incomplete, or false. The Court is perceived as having a legal duty to acquit persons it wrongfully sentenced, as much as it has a legal duty to convict. The inclusion of a revision procedure in the Statute enables the convicted person to contest a final judgement pertaining to guilt or to sentencing. Consequently, review proceedings are by nature allowed only after the trial and appellate proceedings.1600 The Rome Statute does not contain any answer to the question whether the convicted person may apply for revision of a decision which is not stricto sensu a “final judgement of conviction or sentence”. In the Barayagwiza case, the indictment against the appellant was dismissed by the Appeals Chamber and the proceedings terminated.1601 The prosecution1602 filed a notice of intention to file a request for review.1603 The Court recalled “the Appeals Chamber’s position in the Review Decision in which it considered that only a final judgement may be reviewed under the terms of Article 25 of the Statute and Rule 120 of the Rules, and that a final judgement is a decision which puts an end to the proceedings (Preamble) . . . The Chamber would point out that a final judgement in the sense of the above-mentioned articles (referring to Article 25 of the ICTR Statute and Rule 120) is one which terminates the proceedings; only such a decision may

1600 Rule 21(3) provides for review proceedings during the trial, albeit by the Presidency and not by a Trial or Appeals Chamber. A decision refusing a request for assignment of counsel may be reviewed by the Presidency, its decision is final. In case assignment of counsel was refused, a new request may be submitted to the Registrar by the party denied counsel “upon showing a change in circumstances”. 1601 Prosecutor v. Barayagwiza, Case No. ICTR-97-19 (Appeals Chamber), Decision, 3 November 1999. 1602 Under Article 25 of the ICTR Statute and Article 26 of the ICTY Statute, the application of the Prosecutor must be made within one year from the date the final decision asked to be reviewed was rendered. 1603 Prosecutor v. Barayagwiza, Case No. ICTR-97-19 (Appeals Chamber), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000. In the ad hoc Tribunals, the Prosecutor may apply for revision be it in case of conviction or of acquittal.

chapter v

322

be subject to review. Clearly, the Decision of 3 November 1999 belongs to that category, since it dismissed the indictment and terminated the proceedings (para. 49).1604

It follows that in the context of the ad-hoc Tribunals, a request for review of a decision which is not strictly a final judgement of conviction or sentence, is considered admissible if the decision terminates the proceedings. 2.2

Standing

A request for revision may be submitted by the convicted person, by his descendants, or by a person who received written instructions from the defendant,1605 or the Prosecutor on the convicted person’s behalf. There is no time limit for filing a request for revision. After the death of the convicted person, a request for review of conviction or sentence might be raised by his representatives: spouses, children, parents or one person alive at the time the accused’s death who has been given express written instructions from the accused to submit a request for revision. It is unclear whether empowerment by written instructions is needed only regarding “one person” or regarding any representative other than the Prosecutor. In our view, the representatives specifically referred to in Article 84(1) of the Statute, namely spouses, children, parents of the deceased, have standing to bring an application for revision on the convicted person’s behalf, the requirement of empowerment relates to the “one person . . . who has been given express written instructions” rather than several who have been given. The Prosecutor may apply for a revision when the convicted person is alive and unable to do so, however, as the Prosecutor’s acts “on the person’s behalf ”, he may only seek a revision which is more favorable to convicted person and not to his detriment. Under the Rome Statute, the right to apply for revision is limited to cases of conviction and not in circumstances of an acquittal. Consequently, the Prosecutor may not, as under the ICTY and ICTR Statutes, submit a motion for revision in case of acquittal. 2.3

Grounds for Revision

a) Revision under Article 84(1)(a)—discovery of new evidence—Under Article 84(1)(a), the convicted person may apply for a revision of judgement on the base

1604 Prosecutor v. Baraygwiza, Case No. ICTR-97-19-AR72, Decision on Review and/or Reconsideration, 14 September 2000. 1605 Article 84(1) of the Rome Statute.

the post trial proceedings

323

of new evidence that has been discovered, if that evidence fulfils two cumulative conditions: i) Unavailability of the evidence at the time of trial, that was not wholly or partially attributable to the party seeking a revision. ii) Evidence which is sufficiently important that had it been proved at the trial, it would probably have lead to a different verdict. It should be noted that what is required under Article 84(1)(a), is “new evidence”. The revision procedure is not conditional upon the discovery of new facts,1606 the new evidence may or may not be related to a new fact. During the trial or the appellate hearings, the fact on which new evidence is presented, might or might not have been at issue, the fact may have been known to the defence, but evidence of that fact was unavailable during the trial and appellate proceedings.1607 The condition that the “unavailability (of new evidence) was not wholly or in part attributable to the party making the application”: the “party” necessarily meaning the convicted person and his/her counsel, the opposite would lead to abusive requests of review proceedings, as the convicted person might always claim that evidence was not available to him/her personally. Nonetheless, this provision should be interpreted in a flexible manner as the requisite degree of diligence might not be the same where a convict who was not represented, even if this was his/her choice. Review proceeding should not be used to overcome the defence’s negligence in finding evidence or because of the defence’s decision not to use certain evidence as part of its conduct of the case. In circumstances of gross professional negligence on the part of the defence attorney however, it would be unfair to deny the convicted person right of revision. Judge Shahabuddeen held that

1606 For a different position see Anne-Marie La Rosa, Revision Procedure under the ICC Statute, in THE ROME STATUTE OF THE ICC, above note 669, at 1569. In the Jelisic case (Prosecutor v. Jelisic, ICTY Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002), the Appeals Chamber held that legal developments in the case law cannot be deemed to constitute new facts within the meaning of Rule 119, at 2. 1607 Judge Shahabuddeen pointed out that “A new fact is generically in the nature of additional evidence. The differentiating specificity is this: additional evidence, though not being merely cumulative, goes to the proof of facts which were in issue at the hearing; by contrast, evidence of a new fact is evidence of a distinctly new feature which was not in issue at the trial”. Prosecutor v. Barayagwiza, Case No. ICTR-97-19 (Appeals Chamber), Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, Separate Opinion of Judge Shahabuddeen, para. 47. See also Prosecutor v. Tadic, ICTY Case No. IT-94-1 (Appeals Chamber), Decision on Motion for Review, 30 July 2002.

324

chapter v “. . . having regard to the superior demands of justice, I would read the reference in (ICTR) Rule 120 to a new fact which “could not have been discovered through the exercise of due diligence” as directory, and not mandatory or peremptory . . . Here, the overriding purpose of the provision is to achieve justice. Justice is denied by adopting a mandatory interpretation of the text; a directory approach achieves it”.1608

As for the condition set by Article 84(1)(a)(ii), the test for the importance of the evidence is yet to be determined by the ruling of the Court. The term “have been likely” might suggests a balance of probabilities as a suitable test, as opposed to the requirement of “decisive evidence” in subparagraph (b) of the Article. Though, reading Article 84(1) as a whole might produce a more severe test.1609 Evidence might be new, the party seeking revision of a conviction or sentence exercised due diligence, the Court may still find that the evidence is not decisive in relation to the conviction of the sentence. b) Revision under Article 84(1)(b)—a decisive evidence was false, forged or falsified— Under this provision the convicted person may apply for a revision of judgement on the ground of a false evidence, if that evidence fulfils several cumulative conditions: a) The falseness of the evidence has been newly discovered; b) The evidence was of decisive nature, it was taken into account and was relied upon to convict the person applying for revision; c) The evidence was false, forged or falsified. As for the first condition, it is clear that the new discovery relates to the falseness of a piece of evidence and the giving of false evidence. Such discovery may only be a ground to apply for revision if it was made after the conviction. The facts or acts, if proven, may be prosecuted by the Court or, depending on the circumstance, by a state party as they constitute offences against the administration of justice under Article 70 of the Statute.

1608 Ibid., para. 53. In this case the Appeals Chamber observed that there had been no showing that the new fact was a decisive factor within the meaning of Rule 120 of the Rules. In the Delic case (Prosecutor v. Hazim Delic, Case No.: IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002), the Appeals Chamber found that “It is only when the decision made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Chamber will not hold the accused accountable for his counsel’s conduct . . . (if ) the accused suggests that the evidence was not put before the Tribunal through lack of due diligence, he must establish that its exclusion would lead to a miscarriage of justice” at 7. 1609 See Christopher Staker, Revision of Conviction or Sentence, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1040.

the post trial proceedings

325

The requirement for “decisive evidence” leaves little leeway to the Court, which will need to determine whether, if the falseness of the evidence will be proven, the judgement will be reversed, before allowing the revision. c) Revision under Article 84(1)(c)—serious misconduct or serious breach of duty by a judge—Under Article 84(1)(b) the convicted person may apply for a revision of judgement on the base of an act of serious misconduct or serious breach of duty by one or more of the judges who participated in conviction or confirmation of the charges. Under Rule 24, A serious misconduct is defined as an act if occurs in the course of official duties is unable to coexist with official functions and causes or is likely to cause serious damage to the proper administration of justice or the proper internal functioning of the Court, or an act if occurring outside the course of official duties is of grave nature that causes or is likely to cause serious harm to the standing of the Court.1610 The gravity of the misconduct will be viewed in light of Article 46 and Rule 24. There are essentially two situations of serious misconduct that might directly influence the outcome of a trial and are therefore relevant in the context of review proceedings: a) The disclosure of facts or information acquired by a judge of the Court in the course of his/her duties on a pending case “where such disclosure is seriously prejudicial to the judicial proceedings or to any person”.1611 One the one hand, serious misconduct is constituted by acts listed under Rule 23 which cause or are likely to cause serious harm to the proper administration of justice or functioning of the Court. On the other, serious misconduct is not constituted by the disclosure as such. The conditions attached for disclosure to constitute “serious misconduct” are that: (i) The link between the disclosure and the prejudice be established at least prima facie. (ii) The harm resulting from disclosure is seriously prejudicial to the proceedings or to any person. In view of the confidentiality of the deliberations,1612 it might be impossible for anyone not part of the Court’s system to prove that the misconduct had a direct effect on the judgement or the sentence. The prejudice to the proceedings, whether at the pre-trial or trial stage, combined with the severity of the misconduct and the severe prejudice, should suffice to find a request for revision admissible.

1610 1611 1612

Rule 24. Rule 24(1)(a)(i). Article 74(4), Rome Statute.

chapter v

326

In cases where the request for revision is based on a serious misconduct,1613 constituting a new Trial Chamber may be appropriate and even necessary, both because of the practical need after the removal of office of the judge, and the need of a neutral approach in the revision of the case. 2.4

The Procedure for Revision

An application for revision is to be submitted in writing,1614 based on at least one of the grounds provided by Article 84 of the Rome Statute, and as far as possible, contain supporting materials convincing the Court that the “application is meritorious”,1615 such determination is made by a majority of the judges of the Appeals Chamber.1616 If the Appeals Chamber finds the application to be justified it may reconvene the original Trial Chamber, constitute a new Trial Chamber or retain jurisdiction over the matter, all with a view to determine whether the judgement should be revised.1617 In cases where the request for revision is based on new evidence of factual findings1618 the original Trial Chamber may be reconvened. Notification of the decision of the Appeals Chamber shall be sent to the applicant, and to all the parties concerned if possible.1619 The convicted person has the right to be present at the hearings as the “relevant Chamber shall issue its order sufficiently in advance to enable the transfer of the sentenced person to the seat of the Court”.1620 No time limit was provided for the hearing before the relevant Chamber that will be conducted “on a date it shall determine”.1621 The relevant Chamber shall have all the powers granted to the Trial Chamber under Part 6 and under the rules, and the decision of the Chamber shall be taken as prescribed under Article 83(4).1622

1613 1614 1615 1616 1617 1618 1619 1620 1621 1622

Revision under Rule 159(1). Article 84(2) of Rule 159(2). Article 84(2) of Revision under Rule 159(3). Rule 160(1). Rule 161(1). Rule 161(2).

Article 84(1)(c). the Rome Statute. the Rome Statute. Article 84(1)(a) and 84(1)(b).

CHAPTER VI

ENFORCEMENT

The enforcement of a sentence may only start after the conviction becomes res judicata, and after the person’s views were heard, including the circumstances of his health and other relevant factors. Such data is to be transferred to the state of enforcement together with the final judgement, his conviction and prison term, as well as any other relevant information to be known and coordinated while and after he is released.1623 The drafters of the Rome Statute have chosen to be clear about the general policy considerations that rule the decisions of placement:1624 – Equal distribution between state parties. This does not obligate a state party to accept any prisoners. – The application of widely accepted prisoner conditions.1625 Under Article 106, it is clear that the minimum standard for prisoner conditions must be provided to the prisoners.1626 However, there is no clear establishment of a mechanism of enforcement for this purpose, or to investigate prisoner conditions systematically. – The views as well as the nationality of the sentenced person are to be taken into account when designating a state of enforcement.1627 The Court has several tools of enforcement: the explicit agreement of the state of enforcement to accept a specific prisoner, it has the authority to instruct the relocation of a prisoner at any time, or to refer the matter to the Assembly of State Parties, and to the UN Security Council.1628

1. A System of Voluntary Enforcement Like in the ICTY and the ICTR, the enforcement of a sentence of imprisonment by state parties to the Rome Statute is generally voluntary.1629 Therefore, 1623

Rule 204. Article 103(3) of the Rome Statute. 1625 Ibid., Article 103(3)(b). 1626 Ibid. See Giuseppe Palmisano, ICC and Third States, in ESSAYS ON THE ROME STAUTE, above note 600, at 421. 1627 Article 103(3)(c) and (d) of the Rome Statute. 1628 See Giuseppe Palmisano, ICC and Third States, in ESSAYS ON THE ROME STATUTE, above note 600, at 436. 1629 Antonio Marchesi, Enforcement of Sentences, in ibid., at 430. 1624

328

chapter vi

there is also much room for adjustment of the national legislation of state parties.1630 The starting point of enforcement in the ICC, is that the consent of the enforcing state has to be granted to the Court, prior to the enforcement itself, and only such consent shall activate the mechanism of enforcement.1631 A state of enforcement must have agreed to be placed on the list of candidates. Once the Court designated a state to enforce the sentence of a specific prisoner, the state has to accept its designation. Unlike the ad hoc Tribunals, the I.C.C. enforcement mechanism requires both a general willingness by a state party to take part in the enforcement, and a specific willingness to accept the specific prisoner.1632 Once a state accepted enforcement in a specific case after being designated, it may not withdraw. In case of non-acceptance after designation, the Presidency “may designate another State”.1633 A state does not have to be a party to the Statute in order to participate in the enforcement of the sentences handed down by the Court. In general, the selection and designation of a state of enforcement, is within the Court’s discretion from the list willing states. Rule 201 according to which the Court should adhere to equal distribution between state parties may be impractical, whenever there are not enough states willing to enforce sentences. In a system where enforcement is voluntary, equal distribution among states parties might be an aim, however, there is no obligation.1634 The Statute, unlike its draft, does not include a direct responsibility undertaken by state parties to enforce the Cout’s judgements.1635 Nonetheless, the costs of maintaining the prisoners are borne by the hosting countries.1636 The Statute seems to contain clear rules on how prisoners have to be dealt with, it sets up inspections teams and defines the rules for reduction of a sentence. Under Article 104, the Court may relocate the maltreated prisoner, or a prisoner who receives beneficiary conditions, to another state.

1630 Bruce Broomhall, The International Criminal Court: A Checklist for National Implementation, in ICC RATIFICATION AND NATIONAL IMPLEMENTING LEGISLATION (1999), ERES, DePaul University, (hereinafter “ICC RATIFICATION”) at 149. 1631 Claus Kress and Goran Sluiter Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1790. 1632 Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE, above note 600, at 431. 1633 Rule 205. 1634 Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE, above note 600, at 430. 1634 Ibid., at 432. 1635 Ibid., at 430. 1636 Rule 208.

enforcement

329

Despite the philosophical aspirations and justifications for punishment,1637 the Court relies on states and on their obligations of fair treatment to prisoners.1638 When a transfer is requested by a prisoner, such transfer, although allowed by the Court in principle, still depends upon a state willing to take the prisoner, and that equality be, as far as possible, achieved in the distribution of prisoners.1639 The inspecting team may, on behalf of the Court, move a prisoner to another state party or even to a state which is not party to the Rome Statute. Under Rule 200, a state of enforcement is to accept preliminary terms before the state is included on the list of possible enforcing states. Rule 200 specifically allows an enforcing state to withdraw from the list, subject to applying its prior agreed obligations of enforcement.1640 Furthermore, that state of enforcement may attach conditions to accepting prisoners under Article 103(1)(b). The Court may accept or disagree with the conditions set by the potential enforcing state.1641 Once the conditions are set, the state may not add or reduce conditions without the authorization of the Presidency. The Court does not and cannot for practical reasons intervene in the particular condition and daily routine of each convict and violation may occur. It seems that the only direct remedy that the Court has in case of human rights violations towards prisoners, is to transfer the prisoner at any given time to another state of enforcement under Article 104(1) of the Rome Statute. The prisoner may apply to the Court for such transfer at any time.1642 The Presidency, and the Court for that matter, may only act on the basis of the agreement of the state of enforcement, they cannot give orders to sovereign states. Further, difficulties arise concerning the uniformity of punishments. A distinction is between a policy of uniformity in prison terms as upheld by the ICC,1643 and a deviation there from under Article 103(1)(b) of the

1637 Ralph Henham, The Philosophical Foundations of International Sentencing, as provided by J. of Int’l Criminal Justice 1(1) (2003), at 77. Also see Antonio Cassese, INTERNATIONAL CRIMINAL LAW (Oxford U.P., 2003). According to Cassese, in the ICTY and the ICTR retribution and deterrence are the primary consideration to be taken into account in sentencing, albeit the fact that purposive considerations, reprobation, stigmatization and rehabilitation of the accused, have played a role as well; at 428–429. 1638 See Bruce Broomhall, The International Criminal Court: A Checklist for National Implementation, in ICC RATIFICATION, above note 1630, at 139. 1639 See Rule 209. 1640 Rule 200(4). 1641 Article 103(2)(b) of the Rome Statute. 1642 Ibid., Article 104(2). Under Rule 209, the sentenced person or the Prosecutor may request a change in the designation of the state of enforcement. 1643 Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1792.

330

chapter vi

Statute.1644 Consequently, prison terms might be more favorable or more severe towards the prisoner depending on the internal law of the state of enforcement. However, cases of appeals and revision may not be handled by the state of enforcement on top of the decisions of the ICC.1645 The convicted person has no ability to object to being transferred to any specific accepting state, albeit he has a right to be heard by the Presidency prior to the enforcement of the sentence.1646 Rule 203 does not seem to allow the prisoner to be represented at this stage, although there is no explicit prohibition of legal representation. The views of the prisoner are to be submitted in writing, although the Presidency may allow him to present his views orally, and the prisoner is entitled to an interpreter and an adequate translation, as well as a reasonable time for preparing his arguments and an appropriate facility to do so.1647 The Presidency weighs the views of the convicted person, his nationality, his language and other factors regarding the specific crime.1648 The ICTY has been reluctant to allow persons for sentence serving in the Former Yugoslavia, in order to prevent bodies who were sympathetic with the convicted persons, to influence their sentence serving.1649 The Rwanda Tribunal, on the other hand, had preferred sentence serving in Rwanda, in order to diminish hardships for the convicted persons and their families as a result of their being away from the reach of their families, in foreign countries.1650 Sentences are nonetheless served in countries other than Rwanda.1651

2. The Conditions of Imprisonment Under the Rome Statute, the enforcement of a sentence of imprisonment must “be consistent with widely accepted international treaty standards”;1652 whereas the conditions of imprisonment are to be governed “by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners”.1653 1644

Article 105(1) and 103(1)(b) of the Rome Statute. Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1792. 1646 Rule 206. 1647 Rule 203. 1648 Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE above note 600, at 434. 1649 Ibid., at 434–435. 1650 Ibid. 1651 See above at 128–132 on the issue of imprisonment for persons convicted by the ad hoc Tribunals. 1652 Article 106(1) of the Rome Statute. 1653 Ibid., Article 106(2). 1645

enforcement

331

It is regrettable that in an instrument as significant as the Rome Statute is not more explicit on the “international treaty standards governing treatment of prisoners”. It should be noted that the internationally recognized minimum standards are not necessarily covered by the international treaty standards governing treatment of prisoners. Unless the international standard is of a conventional nature, it may not be within the scope of Article 106 of the Rome Statute. In the first Erdemovic Sentencing Judgement, the Trial Chamber of ICTY held that the enforcement of a penalty “must always conform to the minimum principles of humanity and dignity which constitute the inspiration for the international standards governing the protection of the rights of convicted persons . . .”.1654

The Trial Chamber of the ICTY recalled the specific instruments in which the international standards are enshrined,1655 and not less significant, it also referred to instruments such as the Standard Minimum Rules for the Treatment of Prisoners, and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.1656 The Standard Minimum Rules, although approved by the Economic and Social Council of the United Nations, are not a treaty.1657 The same is the case of the Body of Principles being a Resolution of the General Assembly.1658 Unless these instruments constitute part of the law of a state of enforcement, the treatment of the prisoner might fall below the Standard Minimum Rules and not be in accordance with the Body of Principles. The enforcing state must allow confidential and unimpeded communication between the convicted person and the Court1659 “about the conditions of imprisonment”.1660 Under Article 105(2), a state of enforcement shall not impede a prisoner to make an application for appeal or revision of the sentence. Considering the possibility, at any time, to file a request for 1654

See Erdemovic Sentencing Judgement I, above note 135, para. 74. Under the ICCPR “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” (Article 10 para. 1); the American Convention on Human Rights (Article 5, paragraph 2) provides that “all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”; the Universal Declaration of Human Rights (Article 5) “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”; the European Convention on Human Rights (Article 3) states that “no one shall be subjected to torture or inhuman or degrading treatment or punishment Erdemovic Sentencing Judgement I, above note 135, para. 74 and relevant footnotes. 1656 Ibid. 1657 Adopted at the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders; Economic and Social Council, Resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, Compilation of International Instruments, United Nations Centre for Human Rights (1994), Vol. 1, at 243. 1658 General Assembly Resolution 45/111 of 14 December 1990, United Nations Centre for Human Rights, in ibid., at 263. 1659 Article 106(3) of the Rome Statute. 1660 Rule 211(1)(a). 1655

332

chapter vi

revision of the conviction or the sentence,1661 not so for a review concerning the reduction of the sentence,1662 the question is unclear how the prisoner could do so in practice. Should it become known to the prisoner that one of the grounds to file an application for review exists (the convict himself/herself can obviously not make investigations to this end), nothing is said as to the means necessary to prepare his/her case for review nor on the possibility to be assisted by counsel. The right for a revision laid down in Article 84, might be rendered useless, due to conditions of the enforcement. The general rule is, that enforcement of a sentence should be neither discriminatory for the good, nor any worse than the treatment for other prisoners of the same country, serving sentences for the same offences.1663 Neither should the terms of imprisonment fall short of any of the widely accepted terms of imprisonment.1664 However, this raises another issue: many of the offences for which prisoners who have been convicted by the ICC might serve sentences for, are not typical for the country in which they serve their sentences. The enforcing state may perceive the nature of such crimes as especially severe. Therefore, it may very well condemn such people to punishments that are unusual for other prisoners in that specific country. An example to that may be confinement and solitude. It can even be argued that confinement and solitude may contribute to the rehabilitation of perpetrators of crimes such as genocide or crimes against humanity. On the other hand, the principle of equality between prisoners of the state of enforcement and prisoner sentenced by the ICC, might be jeopardized by the lack of clear and accepted international standards. On the other hand, when compared to other states, the state of enforcement might be beneficiary to the prisoner: the state of enforcement seems to be authorized to change the terms of imprisonment as to allow the prisoner to entail activities outside the prison facility, according to Rule 211, conditional upon the Court being able to supervise. However, it is not entirely clear whether such an approval should be given by the Court in advance, and whether or not the State of enforcement may proceed with such a process without prior authorization.1665 It will remain the task of the Court to establish and enforce the standards, in both directions. The

1661

Article 84 of the Rome Statute. An application for the reduction of sentence may be filed after two thirds of the sentence were served and in case of imprisonment for life, after 25 years. 1663 Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE above note 600, at 439. 1664 Ibid., at 430. 1664 Ibid., at 439. 1665 Rule 211(2). 1662

enforcement

333

Court will need to consider the case of each particular prisoner, as the different factors may vary from one prisoner to another: A prisoner who still has great influence and has proven to be dangerous and vengeful towards witnesses, on the one extreme end, is unlike a prisoner who was just barely convicted. A high-ranking prisoner might be better off in a prison far away from his homeland. The placement will be influenced by how established the conviction is, how dangerous and unrepentant the prisoner is, how influential he is and how willing he is to rehabilitate himself. This should not be complicated by better or worse conditions in the various prisons. All in all, it comes down to a question of discretion and perceptions.

3. Supervision According to Article 106 of the Statute, enforcement of sentences and the conditions of imprisonment are to be supervised by the Court.1666 For legal and practical reasons, the conditions of imprisonment, and consequently daily routine issues of prisoners are to be dealt with by the state of enforcement, in accordance with his law and, as mentioned “consistent with widely accepted international treaty standards.” The fulfillment of the obligation of the state of enforcement to allow communication between the convicted person and the Court about the conditions of imprisonment are a condition sine qua non for the Court to be informed of these conditions.1667 The Statute provides that “communications between a sentenced person and the Court shall be unimpeded and confidential”.1668 Although arrangements for such communications are to be established by the Presidency and the state of enforcement,1669 the passive nature of the clause does not include the state’s obligation to facilitate this communication.1670 It is unclear how it can be known to the Court that communication is impeded where communication is de facto impeded, as there are no regular inspections of prison facilities. In case the treatment is inconsistent with international or even internal standards, and there might be a good reason to prevent communication, it is difficult to evaluate within how long the Court can put an end to the mistreatment of the prisoner. The provisions of the Statute and of the

1666

Article 106 of the Rome Statute. Rule 211(1)(a). 1668 Article 106(3) of the Rome Statute. 1669 Rule 211(a). 1670 See Roger Clark, Supervision of Enforcement of Sentences and Conditions of Imprisonment, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1179. 1667

334

chapter vi

Rules are silent on the circumstances which make the request of information, of a report or an expert opinion from the state of enforcement necessary.1671 The Presidency may delegate a judge or member of the Court to meet the sentenced person, without the presence of national authorities. It is not known either on which basis it is established that such a delegation would be appropriate.1672 In view of the present state of international law and in the event the state of enforcement does not abide by its obligations, the Court may remind the said state of its undertakings but cannot issue orders against it. Therefore, there seems to be no option for the Court other than to transfer the prisoner.

4. The Reduction of a Sentence The Court may reduce sentences, thus avoiding the possibility of unequal sentence terms for prisoners, merely due to their serving the sentences in different states. The states of enforcement may not modify it by means of commutation, pardon or parole; Article 110 explicitly provides that “[t]he Court alone shall have the right to decide any reduction of sentence.1673 The Court is in possession of the file of the convicted person, the circumstances and the gravity of the crime as well as information concerning the convict himself are contained therein. Nonetheless, many years may have passed since the sentence was rendered, in some cases, no less than 25 years, and the convicted person might have changed his criminal behavior since. According to Article 110(3), the Court is to withhold any possibility of reduction of the sentence, before either two thirds of it are served, or alternatively, after 25 years are served, in case of life imprisonment. Various factors and criteria are to be considered by the Appeals Chamber appointed to review the question of the reduction of sentence1674 in order to decide whether or not to do so. The factors to be considered are: “The early and continuing willingness”1675 of the prisoner to cooperation with the Court and with ongoing investigations and prosecutions, his voluntary assistance to enable enforcement of judgements essentially for the benefit of the victims, or changes of circumstances, which are considered as enough

1671

See Rule 211(1)(b) and (1)(c). Ibid. 1673 See Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE above note 600, at 437. 1674 Under Rule 224, in normal circumstances, issues relating to the reduction of sentences are heard by the Appeals Chamber. 1675 Article 110(4) of the Rome Statute. 1672

enforcement

335

of a ground for sentence reduction. These circumstance are essentially criteria that have to do with the rehabilitation and with the social correction of the sentenced person: his conduct, his dissociation from his/her crime, the prospects of resocialization and resettlement, acts initiated in favor of the victims, whether his release is likely to cause social instability, and individual circumstances, such as the health and physical condition of the prisoner.1676 The drafters of the Statute seem to have chosen balance between retaliation and rehabilitation in sentences laid down by the Court. In case the Court did not find it appropriate to reduce the sentence, its decision must be re-examined once every three years.1677 Therefore, any mechanism of change in the punishment which might be applicable in the state of enforcement is replaced by an international mechanism, commencing after the prisoner serves two-thirds of his term, or twenty-five years in case of a lifetime imprisonment.1678 In principle, only the Court may reduce a sentence, however this seemingly clear borderline of authority between the Court and the state of enforcement is flexible. It is well known that some states defy the notion of a lifetime sentence.1679 Thus, the policy of the state of enforcement might be incompatible with the sentence imposed by the Court. Article 103(2)(a) may be interpreted as allowing the Court an extent of discretion in permitting the state of enforcement itself to temporarily reduce a sentence. It relates to a temporary period of time, whereby the Court does not agree to the demands of the state of enforcement. This situation may arise where constitutional provisions in the state of enforcement provide the possibility of presidential pardon for persons serving a prison sentence. During the time the issue of reduction of sentence between the enforcing state and the Court is not solved, the state may not reduce the sentence of the prisoner.1680 A state of enforcement may declare its willingness to enforce a prison sentence, conditional upon the right to use its applicable laws regarding early release, parole or a pardon or commutation. The Presidency may authorize a reduction of the sentence in light of a request from such a state. Despite the fact that the Court is the only organ authorized to reduce a sentence, this authorization is no simple matter.1681 The Court is most

1676

Rule 223. Rule 224(3). 1678 Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1793. 1679 See e.g. Bruce Broomhall, The International Criminal Court: A Checklist for National Implementation, in ICC, above note 1630, at 124. 1680 Article 103(2)(a) of the Rome Statute. 1681 The Presidency may agree or object to the condition of the state of enforcement. In practical terms, however, in case of objection the Presidency has no other option than 1677

336

chapter vi

likely to weigh the principle of equality between sentenced prisoners, as an expanding conclusion from the principle laid down in Article 106 of the Statute as to conditions of imprisonment within the state of enforcement: these should be neither more favorable nor harsher than those of local prisoners “convicted for similar offences”.1682 The Court might indeed have to face a challenge of persuading states to accept prisoners and to agree to their terms. In fact, the whole establishment of enforcement in the ICC seems like an open invitation for the states to negotiate terms of imprisonment and enforcement with the Court, with the Court having the final word.1683

5. Decision or Request for Transfer A sentenced person may apply to the Court to be “transferred from the State of enforcement.”1684 Such a request can be filed by the Prosecutor and the Court may proprio motu decide to transfer the person.1685 The Presidency will make the decision whether or not to transfer the person, and can rely on the opinion of the state of enforcement, the opinion of the sentenced person and the Prosecutor, the opinion of experts, or any other relevant and reliable source.1686 Although Rule 210 states that the person must be notified “as soon as possible”1687 upon a refusal to such a request, it is unclear when the decision has to be made. Under Rule 210(3) the Court must notify the state of enforcement about the denial of the request. The Court should be cognizant of a possible adverse reaction by the state of enforcement towards the prisoner, once it discovers that the person asked for a transfer and was rejected. If a prisoner is being maltreated (or even when the state of enforcement does nothing to prevent other prisoners from doing so), and his motion on the matter is declined, he remains exposed to the reaction of the state of enforcement, under whose custody he/she still remains. One of the possible problems in this context, for example, is a vengeful approach by the enforcing state, when a sentence reduction is being discussed. to transfer the prisoner to another state of enforcement. See Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1794–1795. 1682 Article 106(2) of the Rome Statute. It is rare for a state to hold prisoners serving sentences for crimes within the jurisdiction of the Court. In case the state of enforcement provides harsher conditions for prisoners serving sentences for “grave crimes”, harsher conditions as opposed to than “regular” conditions of prisoners in that country, would not be in violation of the Statute. 1683 Article 103(2)(b) of the Rome Statute. 1684 Ibid., Article 104(2). 1685 Ibid., Article 104(1). 1686 Rule 210(1). 1687 Rule 210(3).

enforcement

337

6. Escape Article 111 offers two alternatives to retrieve an escaped prisoner. The state may, after consulting with the Court, request the person’s surrender from the state in which the person is located, “pursuant to existing bilateral or multilateral arrangements,” or it can apply to the Court for it to request the person’s surrender according to Part 9 of the Statute. The less burdensome of the two is to be applied;1688 however, the state is given the latitude to choose to retrieve the person through its own mechanisms.1689 If the Court tends to the surrender, the responsibility for the apprehension is at the hands of the Court, and the state of enforcement only has the responsibility to notify the Court of the escape in writing, as soon as possible.1690 The Court may operate independently in requesting the surrender of the person, or it may alternatively allow the state of enforcement to pursue specific agreements of extradition.1691 The Court may choose whether to return the fugitive to the same state of enforcement or not, and can even place him in the state to which he fled, under the request of the Prosecutor or the original state of enforcement.1692 The Court may reconsider the country’s ability to keep the person under its custody. The punishment of an escaped prisoner is not mentioned either in the Statute or in the Rules which may indicate that this issue is left to the discretion of the state of enforcement.1693 The only provision is that the period of detention in the territory of the state where the prisoner has fled should be deducted from the sentence remaining to be served.1694

7. Transfer upon the Completion of the Sentence Upon completion of the sentence, the released person is expected to return to his state of nationality,1695 “the state which is obliged to receive him,”1696 1688 Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1796. 1689 See Gerhard A.M. Strijards, Escape, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1199. 1690 Rule 225(1). 1691 Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE, above note 600, at 442. 1692 Rule 225(3). 1693 Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1796. 1694 Rule 225(4). 1695 Roger S. Clark, Article 107, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1181. 1696 Article 107(1) of the Rome Statute.

338

chapter vi

as a state may not refuse entry to its own nationals, even if former convicts. The person may be transferred to “another State which agrees to receive him, taking into account any wishes of the person,”1697 this if the state of enforcement did not authorize the person to stay in its own territory.1698 It is unclear whether the person’s wishes are taken into account only when being transferred to a third state, or also when transferred to his own national state.1699 In either case, these wishes must be taken into account, but not necessarily honored.1700 The options delineated in Article 107 seems to be driven by the need to balance between the will of countries who wish to try the person,1701 the person’s own wishes, and the willingness or obligation of the various states to accept him/her upon completion of the sentence. It appears that the question of transfer is left to be negotiated between the prisoner, the Court and the state of enforcement, in light of the willingness of the states to accept the sentenced person.1702 States’ duties under international law as regulated in extradition treaties may influence over the decision of the Court as to where to enforce a sentence under Article 103(3)(e).1703 It is not entirely clear—and thus left to the discretion of the Court—how the Court will relate to a state of enforcement which is obliged both to the Statute and to an extradition treaty with a third party who wishes to pursue the same case again against the person. There exists a certain fear of third party states trying to reprosecute persons for the same offences for which they are acquitted or convicted by the Court.1704 However, the combination of Article 107(1) and 107(3) provides that a hearing is to be held by the ICC prior to any such surrender of a person against his will. Article 107 of the Statute is to be read together with Article 108 on limitations of prosecution or punishment of other offences purportedly committed “prior to the person’s delivery to the state of enforcement.1705 Under Article 108, the person is not to be prosecuted as long as he/she is under the custody of the state of enforcement, for any charges, without the permission of the Court being granted first. The person has thirty days to 1697

Ibid., Article 107(1). Ibid., Article 107(1). 1699 Claus Kress and Goran Sluiter, Imprisonment, in THE ROME STATUTE OF THE ICC, above note 669, at 1815. 1700 Roger S. Clark, Article 107, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1182. 1701 Bruce Broomhall, The International Criminal Court: A Checklist for National Implementation, in ICC RATIFICATION, above note 1630, at 129. 1702 Article 107 of the Rome Statute. 1703 Ibid., Article 103(3)(e). 1704 See Giuseppe Palmisano, The ICC and Third States, in ESSAYS ON THE ROME STAUTE, above note 600, at 414–415. 1705 Article 108(1) of the Rome Statute. 1698

enforcement

339

leave that country before this protection becomes invalid. However, the person may not have the means to leave or does not necessarily know this rule, and it is nowhere provided that he/she must be informed of, nor by whom this information should be provided to the person. Should the person return to the state of enforcement after having left it, the protection against prosecution or punishment provided under Article 108(1), may not be invoked.1706 Under Article 108 of the Statute, the Court is to decide on matters relating prosecution or punishment, or extradition of the person to third states, after hearing the person’s views.1707 If such a person being authorized to do so remains in the state of enforcement for 30 days without a hearing, this may lead to a bypassing of his right not to be subjected to further proceedings or to extradition to a third state, and his right to be heard by the Court in the matter, as of the 31st day after the end of the sentence.

8. Enforcement of Reparation Orders, of Fines and Forfeiture Reparations to victims are provided by Article 75 and are to be decided upon by the Court in light of Rules 94 to 98.1708 The Court may make an order directly against a convicted person for reparations to victims “including restitution, compensation and rehabilitation”.1709 Reparations are decided upon after conviction for “a crime within the jurisdiction of the Court”.1710 Orders of the Court for fines, forfeitures and reparations cannot be modified.1711 They are established after consultation with the enforcing state as well as any relevant party or entity: the victims, the Prosecutor, the sentenced person, the state of enforcement, third parties etc., as to the allocation of property of the prisoner.1712 Reparation for victims in the context of the ICC does not prejudice the right of victims to be compensated under international or national law. According to Article 109 of the Statute, states must give effect to orders of fines and forfeitures as established by the Court, without prejudice to the rights in bona fide of third parties, and according to the national law on the matter, or otherwise recover its value.1713 1706 See William A. Schabas, Article 108, in COMMENTARY ON THE ROME STATUTE, above note 7, at 1189. 1707 Article 108(2) and 108(3) of the Rome Statute. 1708 Ibid., Article 75 and Rule 146. 1709 Ibid., Article 75(2). 1710 Ibid., Article 75(4). 1711 Article 77(2), Rules 219–220. 1712 Rule 221. 1713 Article 109 of the Rome Statute and Rules 217–218.

CONCLUSION

Although elaborated in different contexts, the Statue of the International Tribunals established since World War II as well as the Statute of the ICC, all constitute a framework within which persons accused of having committed serious international crimes are tried and punished, if found guilty. The Rules elaborated for each International Tribunal and for the Court provide how international criminals may be tried for crimes that come within the competence of the Tribunals and of the Court. The international trial proceedings established toward the end of the twentieth century vary considerably from those provided for the Nuremberg and Tokyo Tribunals, nonetheless their basic setting can be found in the ICTY and ICTR proceedings, as well as in those of the International Criminal Court. Proceedings have indeed become more complex since the Nuremberg trials based on a scant set of rules. Rather than a mere result of changed circumstances, the complexities of the proceedings established at the end of the twentieth century, reflect the development of international human rights granted to every person, even if accused of some of the most serious crimes known to mankind. In the more recently established ad hoc Tribunals and in the ICC, the application of ex post facto laws are excluded; in principle trials are to be held in the presence of the accused and a right of appeal is granted. Victims may be represented and participate in the proceedings before the ICC. These proceedings constitute a serious effort to strike a balance between sometimes opposed rights: the rights of the victims to be protected on the one hand, and the rights of the accused on the other. In spite of significant efforts to overcome the shortcomings of the ad hoc Tribunals Statutes through the amendment of the Rules, this balance was not always achieved. Very significant improvements are contained in the Rome Statute and in the Rules of Procedure and Evidence over those of the ad hoc Tribunals, however, difficulties resulting from insufficient or unclear guarantees afforded to the defendant cannot be excluded. Interrogations and arrests might take place in countries with uneven standards of human rights. The argument maintaining that the kind of “criminals” against whom a warrant of arrest was issued by the International Tribunals, or that will be issued in the future by the Court, do not deserve rights or guarantees may be understandable in view of the horrors defendants have allegedly committed. It should however not be overlooked that not all accused transferred

342

conclusion

or which surrendered to the ICTY or to the ICTR were found guilty. There are no sanctions provided for gross violation of human rights in the context of states’ cooperation with the ICC, and understandably so as the Court may not impose sanctions against a state. Although the co-operation of states will be crucial for the effective functioning of the Court, it should, nonetheless, establish clear and constant guidelines that state’s cooperation with the Court to do justice undermines its purpose if it is effectuated in violation of fundamental human rights. It remains uncertain whether the “equality of arms’ between the Prosecutor and the defence will be effective beyond the courtrooms. Evidence crucial for the outcome of the trial is to be gathered elsewhere in places where the standing of the prosecution radically differs from that of the defence. In view of the developments in one of the very first cases submitted to the ICC, the rights of the defence seem to be given due consideration which is significant from the perspective of international standards of due process. In the case of the “Situation in the Democratic Republic of the Congo”,1714 the Prosecutor requested the Pre-Trial Chamber to authorize that forensic examinations be performed by an institute not connected to the Prosecution, as well as the adoption of specific measures to protect the rights of the defence. Pre-Trial Chamber I ordered that an ad hoc counsel “to represent the general interests of the defence for the purpose of the forensic examinations”1715 be appointed, although there was, at that time, no defendant in the case. The challenges to be overcome by the Court as the first permanent international institution to prosecute “the most serious crimes of concern to the international community”1716 are significant, particularly when seen in conjunction with the Court’s role “to guarantee lasting respect for and the enforcement of international justice”.1717

1714

See above note 668. Ibid., Decision on the Prosecutor’s Request for Measures under Article 56, above note 682, Part (b) of the Order. 1716 Preamble to the Rome Statute. 1717 Ibid. 1715

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT*

PREAMBLE The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and wellbeing of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,

* Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered entered into force on 1 July 2002.

344

rome statute of the international criminal court

Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions, Resolved to guarantee lasting respect for and the enforcement of international justice, Have agreed as follows:

PART 1. ESTABLISHMENT OF THE COURT Article 1 The Court An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. Article 2 Relationship of the Court with the United Nations The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf. Article 3 Seat of the Court 1. The seat of the Court shall be established at The Hague in the Netherlands (“the host State”). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute. Article 4 Legal status and powers of the Court 1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

rome statute of the international criminal court

345

2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW Article 5 Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) (b) (c) (d)

The crime of genocide; Crimes against humanity; War crimes; The crime of aggression.

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. Article 6 Genocide For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

346

rome statute of the international criminal court Article 7 Crimes against humanity

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f ) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; ( j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) “Torture” means the intentional infliction of severe pain or suffering,

rome statute of the international criminal court

347

whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f ) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above. Article 8 War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a largescale commission of such crimes. 2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) (ii) (iii) (iv)

Wilful killing; Torture or inhuman treatment, including biological experiments; Wilfully causing great suffering, or serious injury to body or health; Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

rome statute of the international criminal court

348 (v)

Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

rome statute of the international criminal court (ix)

(x)

(xi) (xii) (xiii) (xiv) (xv)

(xvi) (xvii) (xviii) (xix)

(xx)

(xxi) (xxii)

349

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Killing or wounding treacherously individuals belonging to the hostile nation or army; Declaring that no quarter will be given; Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war; Pillaging a town or place, even when taken by assault; Employing poison or poisoned weapons; Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; outrages upon personal dignity, in particular humiliating and degrading treatment; Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f ), enforced

rome statute of the international criminal court

350

(xxiii)

(xxiv)

(xxv)

(xxvi)

sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

rome statute of the international criminal court (ii)

(iii)

(iv)

(v) (vi)

(vii)

(viii)

(ix) (x) (xi)

(xii)

351

Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Pillaging a town or place, even when taken by assault; Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f ), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; Killing or wounding treacherously a combatant adversary; Declaring that no quarter will be given; Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;

(f ) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in

352

rome statute of the international criminal court

the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means. Article 9 Elements of Crimes 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute. Article 10 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. Article 11 Jurisdiction ratione temporis 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

rome statute of the international criminal court

353

Article 12 Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. Article 13 Exercise of jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 14 Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

354

rome statute of the international criminal court

2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. Article 15 Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

rome statute of the international criminal court

355

Article 17 Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

356

rome statute of the international criminal court Article 18 Preliminary rulings regarding admissibility

1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States. 2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. 3. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation. 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. 6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. 7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.

rome statute of the international criminal court

357

Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case 1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;

358

rome statute of the international criminal court

(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place. Article 20 Ne bis in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

rome statute of the international criminal court

359

Article 21 Applicable law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW Article 22 Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

360

rome statute of the international criminal court Article 23 Nulla poena sine lege

A person convicted by the Court may be punished only in accordance with this Statute. Article 24 Non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply. Article 25 Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

rome statute of the international criminal court

361

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f ) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. Article 26 Exclusion of jurisdiction over persons under eighteen The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime. Article 27 Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. Article 28 Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

rome statute of the international criminal court

362

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i)

The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Article 29 Non-applicability of statute of limitations The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

rome statute of the international criminal court

363

Article 31 Grounds for excluding criminal responsibility 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

364

rome statute of the international criminal court Article 32 Mistake of fact or mistake of law

1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33. Article 33 Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT Article 34 Organs of the Court The Court shall be composed of the following organs: (a) (b) (c) (d)

The Presidency; An Appeals Division, a Trial Division and a Pre-Trial Division; The Office of the Prosecutor; The Registry. Article 35 Service of judges

1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office.

rome statute of the international criminal court

365

2. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected. 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40. 4. The financial arrangements for judges not required to serve on a fulltime basis shall be made in accordance with article 49. Article 36 Qualifications, nomination and election of judges 1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2. (a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar shall promptly circulate any such proposal to all States Parties. (b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties. (c) (i) Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2; (ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached. 3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required

366

rome statute of the international criminal court

in their respective States for appointment to the highest judicial offices. (b) Every candidate for election to the Court shall: (i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court; (c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. (a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either: (i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or (ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court. Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3. (b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party. (c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee’s composition and mandate shall be established by the Assembly of States Parties. 5. For the purposes of the election, there shall be two lists of candidates: List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists. 6. (a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112.

rome statute of the international criminal court

367

Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. (b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled. 7. No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights. 8. (a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children. 9. (a) Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election. (b) At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years. (c) A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term. 10. Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber. Article 37 Judicial vacancies 1. In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy. 2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor’s term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.

368

rome statute of the international criminal court Article 38 The Presidency

1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once. 2. The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second VicePresident shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified. 3. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for: (a) The proper administration of the Court, with the exception of the Office of the Prosecutor; and (b) The other functions conferred upon it in accordance with this Statute. 4. In discharging its responsibility under paragraph 3 (a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern. Article 39 Chambers 1. As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. 2. (a) The judicial functions of the Court shall be carried out in each division by Chambers. (b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division; (ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division; (iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single

rome statute of the international criminal court

369

judge of that division in accordance with this Statute and the Rules of Procedure and Evidence; (c) Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or Pre-Trial Chamber when the efficient management of the Court’s workload so requires. 3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years, and thereafter until the completion of any case the hearing of which has already commenced in the division concerned. (b) Judges assigned to the Appeals Division shall serve in that division for their entire term of office. 4. Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however, preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court’s workload so requires, provided that under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case. Article 40 Independence of the judges 1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. 3. Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature. 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision. Article 41 Excusing and disqualification of judges 1. The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence. 2. (a) A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that

370

rome statute of the international criminal court

judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence. (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph. (c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision. Article 42 The Office of the Prosecutor 1. The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source. 2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. They shall serve on a full-time basis. 3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for reelection.

rome statute of the international criminal court

371

5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any other occupation of a professional nature. 6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case. 7. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. 8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber. (a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article; (b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter; 9. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children. Article 43 The Registry 1. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42. 2. The Registry shall be headed by the Registrar, who shall be the principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court. 3. The Registrar and the Deputy Registrar shall be persons of high moral character, be highly competent and have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar. 5. The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as

372

rome statute of the international criminal court

may be decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar shall be called upon to serve as required. 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence. Article 44 Staff 1. The Prosecutor and the Registrar shall appoint such qualified staff as may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators. 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8. 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties. 4. The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties. Article 45 Solemn undertaking Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.

rome statute of the international criminal court

373

Article 46 Removal from office 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or (b) Is unable to exercise the functions required by this Statute. 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot: (a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges; (b) In the case of the Prosecutor, by an absolute majority of the States Parties; (c) In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor. 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges. 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter. Article 47 Disciplinary measures A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.

374

rome statute of the international criminal court Article 48 Privileges and immunities

1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes. 2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity. 3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court. 4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court. 5. The privileges and immunities of: (a) A judge or the Prosecutor may be waived by an absolute majority of the judges; (b) The Registrar may be waived by the Presidency; (c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor; (d) The Deputy Registrar and staff of the Registry may be waived by the Registrar. Article 49 Salaries, allowances and expenses The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office. Article 50 Official and working languages 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with

rome statute of the international criminal court

375

the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph. 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages. 3. At the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified. Article 51 Rules of Procedure and Evidence 1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; or (c) The Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties. 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail. Article 52 Regulations of the Court 1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning.

376

rome statute of the international criminal court

2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto. 3. The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force.

PART 5. INVESTIGATION AND PROSECUTION Article 53 Initiation of an investigation 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber. 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: (a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58; (b) The case is inadmissible under article 17; or (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

rome statute of the international criminal court

377

3. (a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision. (b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information. Article 54 Duties and powers of the Prosecutor with respect to investigations 1. The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally; (b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and (c) Fully respect the rights of persons arising under this Statute. 2. The Prosecutor may conduct investigations on the territory of a State: (a) In accordance with the provisions of Part 9; or (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). 3. The Prosecutor may: (a) Collect and examine evidence; (b) Request the presence of and question persons being investigated, victims and witnesses; (c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate; (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person;

378

rome statute of the international criminal court

(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and (f ) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence. Article 55 Rights of persons during an investigation 1. In respect of an investigation under this Statute, a person: (a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; (c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute. 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

rome statute of the international criminal court

379

Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity 1. (a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber. (b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1 (b) may include: (a) Making recommendations or orders regarding procedures to be followed; (b) Directing that a record be made of the proceedings; (c) Appointing an expert to assist; (d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence; (e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons; (f ) Taking such other action as may be necessary to collect or preserve evidence. 3. (a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor’s failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor’s failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative.

380

rome statute of the international criminal court

(b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis. 4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber. Article 57 Functions and powers of the Pre-Trial Chamber 1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this article. 2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges. (b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the PreTrial Chamber. 3. In addition to its other functions under this Statute, the Pre-Trial Chamber may: (a) At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation; (b) Upon the request of a person who has been arrested or has appeared pursuant to a summons under article 58, issue such orders, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence; (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information; (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9. (e) Where a warrant of arrest or a summons has been issued under article 58, and having due regard to the strength of the evidence and the

rome statute of the international criminal court

381

rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims. Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 2. The application of the Prosecutor shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes; (d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. 3. The warrant of arrest shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court for which the person’s arrest is sought; and (c) A concise statement of the facts which are alleged to constitute those crimes.

382

rome statute of the international criminal court

4. The warrant of arrest shall remain in effect until otherwise ordered by the Court. 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. 6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes. 7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person’s appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain: (a) The name of the person and any other relevant identifying information; (b) The specified date on which the person is to appear; (c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and (d) A concise statement of the facts which are alleged to constitute the crime. The summons shall be served on the person. Article 59 Arrest proceedings in the custodial State 1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person’s rights have been respected. 3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

rome statute of the international criminal court

383

4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release. 7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible. Article 60 Initial proceedings before the Court 1. Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial. 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions. 3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require. 4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.

384

rome statute of the international criminal court

5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released. Article 61 Confirmation of the charges before trial 1. Subject to the provisions of paragraph 2, within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the PreTrial Chamber determines that it is in the interests of justice. 3. Within a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing. The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing. 4. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal. 5. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.

rome statute of the international criminal court

385

6. At the hearing, the person may: (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence. 7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall: (a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court. 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. 10. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor. 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.

386

rome statute of the international criminal court PART 6. THE TRIAL Article 62 Place of trial

Unless otherwise decided, the place of the trial shall be the seat of the Court. Article 63 Trial in the presence of the accused 1. The accused shall be present during the trial. 2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required. Article 64 Functions and powers of the Trial Chamber 1. The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this Statute and the Rules of Procedure and Evidence. 2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall: (a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings; (b) Determine the language or languages to be used at trial; and (c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial. 4. The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division. 5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused.

rome statute of the international criminal court

387

6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: (a) Exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11; (b) Require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute; (c) Provide for the protection of confidential information; (d) Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties; (e) Provide for the protection of the accused, witnesses and victims; and (f ) Rule on any other relevant matters. 7. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. 8. (a) At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. (b) At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute. 9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: (a) Rule on the admissibility or relevance of evidence; and (b) Take all necessary steps to maintain order in the course of a hearing. 10. The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar. Article 65 Proceedings on an admission of guilt 1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether:

388

rome statute of the international criminal court

(a) The accused understands the nature and consequences of the admission of guilt; (b) The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and (c) The admission of guilt is supported by the facts of the case that are contained in: (i) The charges brought by the Prosecutor and admitted by the accused; (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. 2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. 3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber. 5. Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court. Article 66 Presumption of innocence 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused.

rome statute of the international criminal court

389

3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. Article 67 Rights of the accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; (b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f ) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence

390

rome statute of the international criminal court

in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide. Article 68 Protection of the victims and witnesses and their participation in the proceedings 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such

rome statute of the international criminal court

391

evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information. Article 69 Evidence 1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. 2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. 3. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. 4. The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. 5. The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. 6. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. 7. Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

392

rome statute of the international criminal court

8. When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State’s national law. Article 70 Offences against the administration of justice 1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows is false or forged; (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; (f ) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. 2. The principles and procedures governing the Court’s exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence. The conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State. 3. In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both. 4. (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals; (b) Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution. Those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively.

rome statute of the international criminal court

393

Article 71 Sanctions for misconduct before the Court 1. The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. 2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedure and Evidence. Article 72 Protection of national security information 1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue. 2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests. 3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f ), or the application of article 73. 4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article. 5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the PreTrial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:

rome statute of the international criminal court

394

(a) Modification or clarification of the request; (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State; (c) Obtaining the information or evidence from a different source or in a different form; or (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State’s national security interests. 7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions: (a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4: (i)

The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State’s representations, which may include, as appropriate, hearings in camera and ex parte; (ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and (iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or

rome statute of the international criminal court

395

(b) In all other circumstances: (i) Order disclosure; or (ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances. Article 73 Third-party information or documents If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator. Article 74 Requirements for the decision 1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending. 2. The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. 3. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. 4. The deliberations of the Trial Chamber shall remain secret. 5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber’s decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.

396

rome statute of the international criminal court Article 75 Reparations to victims

1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. 3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1. 5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law. Article 76 Sentencing 1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence. 2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence. 3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing. 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

rome statute of the international criminal court

397

PART 7. PENALTIES Article 77 Applicable penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. Article 78 Determination of the sentence 1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

rome statute of the international criminal court

398

Article 79 Trust Fund 1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund. 3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties. Article 80 Non-prejudice to national application of penalties and national laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.

PART 8. APPEAL AND REVISION Article 81 Appeal against decision of acquittal or conviction or against sentence 1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows: (a) The Prosecutor may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, or (iii) Error of law; (b) The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds: (i) (ii) (iii) (iv)

Procedural error, Error of fact, Error of law, or Any other ground that affects the fairness or reliability of the proceedings or decision.

2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;

rome statute of the international criminal court

399

(b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83; (c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a). 3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal; (b) When a convicted person’s time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below; (c) In case of an acquittal, the accused shall be released immediately, subject to the following: (i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal; (ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence. 4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings. Article 82 Appeal against other decisions 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3; (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the

400

rome statute of the international criminal court

trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis. 3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence. 4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence. Article 83 Proceedings on appeal 1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person’s behalf, it cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law.

rome statute of the international criminal court

401

5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted. Article 84 Revision of conviction or sentence 1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused’s death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person’s behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that: (a) New evidence has been discovered that: (i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 46. 2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate: (a) Reconvene the original Trial Chamber; (b) Constitute a new Trial Chamber; or (c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised. Article 85 Compensation to an arrested or convicted person 1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

402

rome statute of the international criminal court

2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her. 3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.

PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE Article 86 General obligation to cooperate States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. Article 87 Requests for cooperation: general provisions 1. (a) The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession.

rome statute of the international criminal court

403

Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. 3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request. 4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families. 5. (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council. 6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate. 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. Article 88 Availability of procedures under national law States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

404

rome statute of the international criminal court Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility. 3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.

rome statute of the international criminal court

405

4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court. Article 90 Competing requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact. 2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if: (a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or (b) The Court makes the determination described in subparagraph (a) pursuant to the requested State’s notification under paragraph 1. 3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court’s determination shall be made on an expedited basis. 4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible. 5. Where a case under paragraph 4 has not been determined to be admissible by the Curt, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. 6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

406

rome statute of the international criminal court

(a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State. 7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person’s surrender: (a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; (b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision. Article 91 Contents of request for arrest and surrender 1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by: (a) Information describing the person sought, sufficient to identify the person, and information as to that person’s probable location; (b) A copy of the warrant of arrest; and (c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those

rome statute of the international criminal court

407

applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court. 3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by: (a) A copy of any warrant of arrest for that person; (b) A copy of the judgement of conviction; (c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and (d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served. 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. Article 92 Provisional arrest 1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. 2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain: (a) Information describing the person sought, sufficient to identify the person, and information as to that person’s probable location; (b) A concise statement of the crimes for which the person’s arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime; (c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and (d) A statement that a request for surrender of the person sought will follow. 3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted

408

rome statute of the international criminal court

by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date. Article 93 Other forms of cooperation 1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f ) The temporary transfer of persons as provided in paragraph 7; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures; (i) The provision of records and documents, including official records and documents; ( j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (l) 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. 2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.

rome statute of the international criminal court

409

3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. 4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. 5. 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. 6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial. 7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i) The person freely gives his or her informed consent to the transfer; and (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State. 8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to

410

rome statute of the international criminal court

the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence. 9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request. (ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization. 10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. (b) (i) The assistance provided under subparagraph (a) shall include, inter alia: a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and b. The questioning of any person detained by order of the Court; (ii) In the case of assistance under subparagraph (b) (i) a: a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State; b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68. (c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.

rome statute of the international criminal court

411

Article 94 Postponement of execution of a request in respect of ongoing investigation or prosecution 1. If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions. 2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 ( j). Article 95 Postponement of execution of a request in respect of an admissibility challenge Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19. Article 96 Contents of request for other forms of assistance under article 93 1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. The request shall, as applicable, contain or be supported by the following: (a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; (b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; (c) A concise statement of the essential facts underlying the request;

412

rome statute of the international criminal court

(d) The reasons for and details of any procedure or requirement to be followed; (e) Such information as may be required under the law of the requested State in order to execute the request; and (f ) Any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court. Article 97 Consultations Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia: (a) Insufficient information to execute the request; (b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State. Article 98 Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under

rome statute of the international criminal court

413

international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. Article 99 Execution of requests under articles 93 and 96 1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process. 2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4. Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows: (a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party; (b) In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter. 5. Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance under this article.

414

rome statute of the international criminal court Article 100 Costs

1. The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except for the following, which shall be borne by the Court: (a) Costs associated with the travel and security of witnesses and experts or the transfer under article 93 of persons in custody; (b) Costs of translation, interpretation and transcription; (c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court; (d) Costs of any expert opinion or report requested by the Court; (e) Costs associated with the transport of a person being surrendered to the Court by a custodial State; and (f ) Following consultations, any extraordinary costs that may result from the execution of a request. 2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution. Article 101 Rule of speciality 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered. 2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so. Article 102 Use of terms For the purposes of this Statute: (a) “surrender” means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) “extradition” means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.

rome statute of the international criminal court

415

PART 10. ENFORCEMENT Article 103 Role of States in enforcement of sentences of imprisonment 1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. (b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part. (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court’s designation. 2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days’ notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110. (b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1. 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following: (a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence; (b) The application of widely accepted international treaty standards governing the treatment of prisoners; (c) The views of the sentenced person; (d) The nationality of the sentenced person; (e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

416

rome statute of the international criminal court Article 104 Change in designation of State of enforcement

1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State. 2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement. Article 105 Enforcement of the sentence 1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it. 2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person. Article 106 Supervision of enforcement of sentences and conditions of imprisonment 1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement. 3. Communications between a sentenced person and the Court shall be unimpeded and confidential. Article 107 Transfer of the person upon completion of sentence 1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory. 2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court.

rome statute of the international criminal court

417

3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence. Article 108 Limitation on the prosecution or punishment of other offences 1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person’s delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it. Article 109 Enforcement of fines and forfeiture measures 1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law. 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties. 3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court. Article 110 Review by the Court concerning reduction of sentence 1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.

418

rome statute of the international criminal court

3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence. Article 111 Escape If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person’s surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person’s surrender, in accordance with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court.

PART 11. ASSEMBLY OF STATES PARTIES Article 112 Assembly of States Parties 1. An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly.

rome statute of the international criminal court

419

2. The Assembly shall: (a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission; (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto; (d) Consider and decide the budget for the Court; (e) Decide whether to alter, in accordance with article 36, the number of judges; (f ) Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation; (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence. 3. (a) The Assembly shall have a Bureau consisting of a President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms. (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world. (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. 4. The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy. 5. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. 6. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties. 7. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting;

420

rome statute of the international criminal court

(b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting. 8. A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party. 9. The Assembly shall adopt its own rules of procedure. 10. The official and working languages of the Assembly shall be those of the General Assembly of the United Nations.

PART 12. FINANCING Article 113 Financial Regulations Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties. Article 114 Payment of expenses Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court. Article 115 Funds of the Court and of the Assembly of States Parties The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.

rome statute of the international criminal court

421

Article 116 Voluntary contributions Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties. Article 117 Assessment of contributions The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based. Article 118 Annual audit The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.

PART 13. FINAL CLAUSES Article 119 Settlement of disputes 1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court. Article 120 Reservations No reservations may be made to this Statute.

422

rome statute of the international criminal court Article 121 Amendments

1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants. 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory. 6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference. Article 122 Amendments to provisions of an institutional nature 1. Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles

rome statute of the international criminal court

423

44, 46, 47 and 49, may be proposed at any time, notwithstanding article 121, paragraph 1, by any State Party. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 2. Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference. Article 123 Review of the Statute 1. Seven years after the entry into force of this Statute the SecretaryGeneral of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference. Article 124 Transitional Provision Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

424

rome statute of the international criminal court Article 125 Signature, ratification, acceptance, approval or accession

1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. 3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 126 Entry into force 1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. 2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession. Article 127 Withdrawal 1. A State Party may, by written notification addressed to the SecretaryGeneral of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in

rome statute of the international criminal court

425

any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. Article 128 Authentic texts The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States. IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Statute. DONE at Rome, this 17th day of July 1998.

A. RULES OF PROCEDURE AND EVIDENCE* CONTENTS Rule

Page

Chapter 1. General provisions 1. Use of terms .................................................................................... 438 2. Authentic texts ................................................................................ 438 3. Amendments .................................................................................... 438 Chapter 2. Composition and administration of the Court Section I. General provisions relating to the composition and administration of the Court 4. Plenary sessions .............................................................................. 5. Solemn undertaking under article 45 .......................................... 6. Solemn undertaking by the staff of the Office of the Prosecutor, the Registry, interpreters and translators .................. 7. Single judge under article 39, paragraph 2 (b) (iii) .................... 8. Code of Professional Conduct ......................................................

439 439 440 440 441

Section II. The Office of the Prosecutor 9. Operation of the Office of the Prosecutor .................................. 441 10. Retention of information and evidence ...................................... 441 11. Delegation of the Prosecutor’s functions ...................................... 441 Section III. The Registry Subsection 1. General provisions relating to the Registry 12. Qualifications and election of the Registrar and the Deputy Registrar .......................................................................................... 442 * Explanatory note: The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases. In elaborating the Rules of Procedure and Evidence, care has been taken to avoid rephrasing and, to the extent possible, repeating the provisions of the Statute. Direct references to the Statute have been included in the Rules, where appropriate, in order to emphasize the relationship between the Rules and the Rome Statute, as provided for in article 51, in particular, paragraphs 4 and 5. In all cases, the Rules of Procedure and Evidence should be read in conjunction with and subject to the provisions of the Statute. The Rules of Procedure and Evidence of the International Criminal Court do not affect the procedural rules for any national court or legal system for the purpose of national proceedings.

428

rules of procedure and evidence

13. Functions of the Registrar ............................................................ 442 14. Operation of the Registry .............................................................. 443 15. Records ............................................................................................ 443 Subsection 2. Victims and Witnesses Unit 16. Responsibilities of the Registrar relating to victims and witnesses .......................................................................................... 17. Functions of the Unit .................................................................... 18. Responsibilities of the Unit ............................................................ 19. Expertise in the Unit ......................................................................

443 444 445 446

Subsection 3. Counsel for the defence 20. Responsibilities of the Registrar relating to the rights of the defence ...................................................................................... 446 21. Assignment of legal assistance ........................................................ 447 22. Appointment and qualifications of Counsel for the defence ...... 448 Section IV. Situations that may affect the functioning of the Court Subsection 1. Removal from office and disciplinary measures 23. 24. 25. 26. 27. 28. 29. 30.

General principle ............................................................................ Definition of serious misconduct and serious breach of duty .... Definition of misconduct of a less serious nature ........................ Receipt of complaints .................................................................... Common provisions on the rights of the defence ...................... Suspension from duty .................................................................... Procedure in the event of a request for removal from office .... Procedure in the event of a request for disciplinary measures .......................................................................................... 31. Removal from office ...................................................................... 32. Disciplinary measures ....................................................................

448 448 449 450 450 450 450 451 451 451

Subsection 2. Excusing, disqualification, death and resignation 33. Excusing of a judge, the Prosecutor or a Deputy Prosecutor .... 34. Disqualification of a judge, the Prosecutor or a Deputy Prosecutor ........................................................................................ 35. Duty of a judge, the Prosecutor or a Deputy Prosecutor to request to be excused .................................................................... 36. Death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar ..................................................

452 452 453 453

rules of procedure and evidence

429

37. Resignation of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar ............................................ 453 Subsection 3. Replacements and alternate judges 38. Replacements .................................................................................. 453 39. Alternate judges .............................................................................. 454 Section V. Publication, languages and translation 40. 41. 42. 43.

Publication of decisions in official languages of the Court ........ Working languages of the Court .................................................. Translation and interpretation services ........................................ Procedure applicable to the publication of documents of the Court ................................................................................................

454 455 455 455

Chapter 3. Jurisdiction and admissibility Section I. Declarations and referrals relating to articles 11, 12, 13 and 14 44. Declaration provided for in article 12, paragraph 3 .................. 456 45. Referral of a situation to the Prosecutor ...................................... 456 Section II. Initiation of investigations under article 15 46. Information provided to the Prosecutor under article 15, paragraphs 1 and 2 ........................................................................ 47. Testimony under article 15, paragraph 2 .................................... 48. Determination of reasonable basis to proceed with an investigation under article 15, paragraph 3 ................................ 49. Decision and notice under article 15, paragraph 6 .................... 50. Procedure for authorization by the Pre-Trial Chamber of the commencement of the investigation ..............................................

456 456 457 457 457

Section III. Challenges and preliminary rulings under articles 17, 18 and 19 51. 52. 53. 54. 55. 56.

Information provided under article 17 ........................................ Notification provided for in article 18, paragraph 1 .................. Deferral provided for in article 18, paragraph 2 ........................ Application by the Prosecutor under article 18, paragraph 2 .... Proceedings concerning article 18, paragraph 2 .......................... Application by the Prosecutor following review under article 18, paragraph 3 ....................................................................................

458 458 459 459 459 460

430

rules of procedure and evidence

57. 58. 59. 60. 61. 62.

Provisional measures under article 18, paragraph 6 .................. Proceedings under article 19 ........................................................ Participation in proceedings under article 19, paragraph 3 ...... Competent organ to receive challenges ........................................ Provisional measures under article 19, paragraph 8 .................. Proceedings under article 19, paragraph 10 ................................

460 460 461 461 461 461

Chapter 4. Provisions relating to various stages of the proceedings Section I. Evidence 63. General provisions relating to evidence ........................................ 64. Procedure relating to the relevance or admissibility of evidence .......................................................................................... 65. Compellability of witnesses ............................................................ 66. Solemn undertaking ........................................................................ 67. Live testimony by means of audio or video-link technology ...... 68. Prior recorded testimony ................................................................ 69. Agreements as to evidence ............................................................ 70. Principles of evidence in cases of sexual violence ...................... 71. Evidence of other sexual conduct ................................................ 72. In camera procedure to consider relevance or admissibility of evidence .......................................................................................... 73. Privileged communications and information ................................ 74. Self-incrimination by a witness ...................................................... 75. Incrimination by family members ................................................

462 462 463 463 463 464 464 464 465 465 465 467 468

Section II. Disclosure 76. Pre-trial disclosure relating to prosecution witnesses .................. 77. Inspection of material in possession or control of the Prosecutor ........................................................................................ 78. Inspection of material in possession or control of the defence ............................................................................................ 79. Disclosure by the defence .............................................................. 80. Procedures for raising a ground for excluding criminal responsibility under article 31, paragraph 3 ................................ 81. Restrictions on disclosure .............................................................. 82. Restrictions on disclosure of material and information protected under article 54, paragraph 3 (e) ..................................................

469 469 469 470 470 471 472

rules of procedure and evidence

431

83. Ruling on exculpatory evidence under article 67, paragraph 2 .................................................................................. 472 84. Disclosure and additional evidence for trial .............................. 472 Section III. Victims and witnesses Subsection 1. Definition and general principle relating to victims 85. Definition of victims .................................................................... 473 86. General principle .......................................................................... 473 Subsection 2. Protection of victims and witnesses 87. Protective measures ...................................................................... 473 88. Special measures .......................................................................... 475 Subsection 3. Participation of victims in the proceedings 89. 90. 91. 92. 93.

Application for participation of victims in the proceedings ...... Legal representatives of victims .................................................. Participation of legal representatives in the proceedings .......... Notification to victims and their legal representatives .............. Views of victims or their legal representatives ..........................

475 476 477 477 479

Subsection 4. Reparations to victims 94. 95. 96. 97. 98. 99.

Procedure upon request .............................................................. Procedure on the motion of the Court ...................................... Publication of reparation proceedings ........................................ Assessment of reparations ............................................................ Trust Fund .................................................................................... Cooperation and protective measures for the purpose of forfeiture under articles 57, paragraph 3 (e), and 75, paragraph 4 ..................................................................................

479 479 480 480 481

481

Section IV. Miscellaneous provisions 100. 101. 102. 103.

Place of the proceedings .............................................................. Time limits .................................................................................... Communications other than in writing ...................................... Amicus curiae and other forms of submission ..........................

482 482 482 483

432

rules of procedure and evidence Chapter 5. Investigation and prosecution Section I. Decision of the Prosecutor regarding the initiation of an investigation under article 53, paragraphs 1 and 2

104. Evaluation of information by the Prosecutor ............................ 484 105. Notification of a decision by the Prosecutor not to initiate an investigation .................................................................................. 484 106. Notification of a decision by the Prosecutor not to prosecute ........................................................................................ 485 Section II. Procedure under article 53, paragraph 3 107. Request for review under article 53, paragraph 3 (a) .............. 108. Decision of the Pre-Trial Chamber under article 53, paragraph 3 (a) ............................................................................ 109. Review by the Pre-Trial Chamber under article 53, paragraph 3 (b) ............................................................................ 110. Decision by the Pre-Trial Chamber under article 53, paragraph 3 (b) ............................................................................

485 485 486 486

Section III. Collection of evidence 111. Record of questioning in general ................................................ 112. Recording of questioning in particular cases ............................ 113. Collection of information regarding the state of health of the person concerned .......................................................................... 114. Unique investigative opportunity under article 56 .................... 115. Collection of evidence in the territory of a State Party under article 57, paragraph 3 (d) .......................................................... 116. Collection of evidence at the request of the defence under article 57, paragraph 3 (b) ..........................................................

486 487 488 488 489 489

Section IV. Procedures in respect of restriction and deprivation of liberty 117. 118. 119. 120.

Detention in the custodial State .................................................. Pre-trial detention at the seat of the Court .............................. Conditional release ...................................................................... Instruments of restraint ................................................................

490 490 491 492

rules of procedure and evidence

433

Section V. Proceedings with regard to the confirmation of charges under article 61 121. Proceedings before the confirmation hearing ............................ 122. Proceedings at the confirmation hearing in the presence of the person charged .............................................................................. 123. Measures to ensure the presence of the person concerned at the confirmation hearing .............................................................. 124. Waiver of the right to be present at the confirmation hearing .......................................................................................... 125. Decision to hold the confirmation hearing in the absence of the person concerned .................................................................. 126. Confirmation hearing in the absence of the person concerned ......................................................................................

492 494 494 495 495 496

Section VI. Closure of the pre-trial phase 127. Procedure in the event of different decisions on multiple charges .......................................................................................... 128. Amendment of the charges .......................................................... 129. Notification of the decision on the confirmation of charges .... 130. Constitution of the Trial Chamber ............................................

496 497 497 497

Chapter 6. Trial procedure 131. Record of the proceedings transmitted by the Pre-Trial Chamber ........................................................................................ 132. Status conferences ........................................................................ 133. Motions challenging admissibility or jurisdiction ...................... 134. Motions relating to the trial proceedings .................................. 135. Medical examination of the accused .......................................... 136. Joint and separate trials .............................................................. 137. Record of the trial proceedings .................................................. 138. Custody of evidence .................................................................... 139. Decision on admission of guilt .................................................... 140. Directions for the conduct of the proceedings and testimony ........................................................................................ 141. Closure of evidence and closing statements .............................. 142. Deliberations .................................................................................. 143. Additional hearings on matters related to sentence or reparations .................................................................................... 144. Delivery of the decisions of the Trial Chamber ........................

498 498 498 498 499 499 500 500 500 500 501 501 502 502

434

rules of procedure and evidence Chapter 7. Penalties

145. 146. 147. 148.

Determination of sentence .......................................................... Imposition of fines under article 7 .............................................. Orders of forfeiture ...................................................................... Orders to transfer fines or forfeitures to the Trust Fund ........

503 504 505 505

Chapter 8. Appeal and revision Section I. General provisions 149. Rules governing proceedings in the Appeals Chamber ............ 506 Section II. Appeals against convictions, acquittals, sentences and reparation orders 150. 151. 152. 153.

Appeal ............................................................................................ Procedure for the appeal ............................................................ Discontinuance of the appeal ...................................................... Judgement on appeals against reparation orders ......................

506 506 507 507

Section III. Appeals against other decisions 154. 155. 156. 157. 158.

Appeals that do not require the leave of the Court ................ Appeals that require leave of the Court .................................... Procedure for the appeal ............................................................ Discontinuance of the appeal ...................................................... Judgement on the appeal ............................................................

507 507 508 508 508

Section IV. Revision of conviction or sentence 159. Application for revision ................................................................ 509 160. Transfer for the purpose of revision .......................................... 509 161. Determination on revision ............................................................ 509 Chapter 9. Offences and misconduct against the Court Section I. Offences against the administration of justice under article 70 162. 163. 164. 165. 166.

Exercise of jurisdiction ................................................................ Application of the Statute and the Rules .................................. Periods of limitation .................................................................... Investigation, prosecution and trial ............................................ Sanctions under article 70 ..........................................................

510 510 511 511 511

rules of procedure and evidence

435

167. International cooperation and judicial assistance ...................... 512 168. Ne bis in idem .................................................................................... 512 169. Immediate arrest .......................................................................... 512 Section II. Misconduct before the Court under article 71 170. Disruption of proceedings ............................................................ 513 171. Refusal to comply with a direction by the Court .................... 513 172. Conduct covered by both articles 70 and 71 ............................ 513 Chapter 10. Compensation to an arrested or convicted person 173. Request for compensation ............................................................ 514 174. Procedure for seeking compensation .......................................... 514 175. Amount of compensation ............................................................ 515 Chapter 11. International cooperation and judicial assistance Section I. Requests for cooperation under article 87 176. Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance ............................................ 177. Channels of communication ........................................................ 178. Language chosen by States Parties under article 87, paragraph 2 .................................................................................. 179. Language of requests directed to States not party to the Statute ............................................................................................ 180. Changes in the channels of communication or the languages of requests for cooperation ..........................................................

516 516 517 517 517

Section II. Surrender, transit and competing requests under articles 89 and 90 181. 182. 183. 184. 185.

Challenge to admissibility of a case before a national court .... Request for transit under article 89, paragraph 3 (e) .............. Possible temporary surrender ...................................................... Arrangements for surrender ........................................................ Release of a person from the custody of the Court other than upon completion of sentence ...................................................... 186. Competing requests in the context of a challenge to the admissibility of the case ..............................................................

517 518 518 518 519 519

436

rules of procedure and evidence Section III. Documents for arrest and surrender under articles 91 and 92

187. Translation of documents accompanying request for surrender ........................................................................................ 519 188. Time limit for submission of documents after provisional arrest .............................................................................................. 520 189. Transmission of documents supporting the request .................. 520 Section IV. Cooperation under article 93 190. Instruction on self-incrimination accompanying request for witness ............................................................................................ 191. Assurance provided by the Court under article 93, paragraph 2 .................................................................................. 192. Transfer of a person in custody .................................................. 193. Temporary transfer of the person from the State of enforcement .................................................................................. 194. Cooperation requested from the Court ......................................

520 520 520 521 521

Section V. Cooperation under article 98 195. Provision of information .............................................................. 522 Section VI. Rule of speciality under article 101 196. Provision of views on article 101, paragraph 1 ........................ 522 197. Extension of the surrender .......................................................... 522 Chapter 12. Enforcement Section I. Role of States in enforcement of sentences of imprisonment and change in designation of State of enforcement under articles 103 and 104 198. 199. 200. 201. 202. 203. 204. 205. 206.

Communications between the Court and States ...................... Organ responsible under Part 10 ................................................ List of States of enforcement ...................................................... Principles of equitable distribution .............................................. Timing of delivery of the sentenced person to the State of enforcement .................................................................................. Views of the sentenced person .................................................... Information relating to designation ............................................ Rejection of designation in a particular case ............................ Delivery of the sentenced person to the State of enforcement ..................................................................................

523 523 523 524 524 524 524 525 525

207. 208. 209. 210.

rules of procedure and evidence

437

Transit .......................................................................................... Costs .............................................................................................. Change in designation of State of enforcement ...................... Procedure for change in the designation of a State of enforcement ..................................................................................

525 526 526 526

Section II. Enforcement, supervision and transfer under articles 105, 106 and 107 211. Supervision of enforcement of sentences and conditions of imprisonment ................................................................................ 526 212. Information on location of the person for enforcement of fines, forfeitures or reparation measures .................................... 527 213. Procedure for article 107, paragraph 3 .................................... 527 Section III. Limitation on the prosecution or punishment of other offences under article 108 214. Request to prosecute or enforce a sentence for prior conduct ........................................................................................ 528 215. Decision on request to prosecute or enforce a sentence ........ 528 216. Information on enforcement ...................................................... 529 Section IV. Enforcement of fines, forfeiture measures and reparation orders 217. Cooperation and measures for enforcement of fines, forfeiture or reparation orders .................................................................... 218. Orders for forfeiture and reparations ........................................ 219. Non-modification of orders for reparation ................................ 220. Non-modification of judgements in which fines were imposed ........................................................................................ 221. Decision on disposition or allocation of property or assets .... 222. Assistance for service or any other measure ............................

529 529 530 530 530 531

Section V. Review concerning reduction of sentence under article 110 223. Criteria for review concerning reduction of sentence .............. 531 224. Procedure for review concerning reduction of sentence .......... 531 Section VI. Escape 225. Measures under article 111 in the event of escape ................ 532

438

rules of procedure and evidence CHAPTER 1

GENERAL PROVISIONS

Rule 1 Use of terms In the present document: – “article” refers to articles of the Rome Statute; – “Chamber” refers to a Chamber of the Court; – “Part” refers to the Parts of the Rome Statute; – “Presiding Judge” refers to the Presiding Judge of a Chamber; – “the President” refers to the President of the Court; – “the Regulations” refers to the Regulations of the Court; – “the Rules” refers to the Rules of Procedure and Evidence. Rule 2 Authentic texts The Rules have been adopted in the official languages of the Court established by article 50, paragraph 1. All texts are equally authentic. Rule 3 Amendments 1. Amendments to the rules that are proposed in accordance with article 51, paragraph 2, shall be forwarded to the President of the Bureau of the Assembly of States Parties. 2. The President of the Bureau of the Assembly of States Parties shall ensure that all proposed amendments are translated into the official languages of the Court and are transmitted to the States Parties. 3. The procedure described in sub-rules 1 and 2 shall also apply to the provisional rules referred to in article 51, paragraph 3.

rules of procedure and evidence

439

CHAPTER 2

COMPOSITION AND ADMINISTRATION OF THE COURT

Section I General provisions relating to the composition and administration of the Court Rule 4 Plenary sessions 1. The judges shall meet in plenary session not later than two months after their election. At that first session, after having made their solemn undertaking, in conformity with rule 5, the judges shall: (a) Elect the President and Vice-Presidents; (b) Assign judges to divisions. 2. The judges shall meet subsequently in plenary session at least once a year to exercise their functions under the Statute, the Rules and the Regulations and, if necessary, in special plenary sessions convened by the President on his or her own motion or at the request of one half of the judges. 3. The quorum for each plenary session shall be two-thirds of the judges. 4. Unless otherwise provided in the Statute or the Rules, the decisions of the plenary sessions shall be taken by the majority of the judges present. In the event of an equality of votes, the President, or the judge acting in the place of the President, shall have a casting vote. 5. The Regulations shall be adopted as soon as possible in plenary sessions. Rule 5 Solemn undertaking under article 45 1. As provided in article 45, before exercising their functions under the Statute, the following solemn undertakings shall be made: (a) In the case of a judge: “I solemnly undertake that I will perform my duties and exercise my powers as a judge of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions and the secrecy of deliberations.”

440

rules of procedure and evidence

(b) In the case of the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court: “I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.”

2. The undertaking, signed by the person making it and witnessed by the President or a Vice-President of the Bureau of the Assembly of States Parties, shall be filed with the Registry and kept in the records of the Court. Rule 6 Solemn undertaking by the staff of the Office of the Prosecutor, the Registry, interpreters and translators 1. Upon commencing employment, every staff member of the Office of the Prosecutor and the Registry shall make the following undertaking: “I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.”

The undertaking, signed by the person making it and witnessed, as appropriate, by the Prosecutor, the Deputy Prosecutor, the Registrar or the Deputy Registrar, shall be filed with the Registry and kept in the records of the Court. 2. Before performing any duties, an interpreter or a translator shall make the following undertaking: “I solemnly declare that I will perform my duties faithfully, impartially and with full respect for the duty of confidentiality.”

The undertaking, signed by the person making it and witnessed by the President of the Court or his or her representative, shall be filed with the Registry and kept in the records of the Court. Rule 7 Single judge under article 39, paragraph 2 (b) (iii) 1. Whenever the Pre-Trial Chamber designates a judge as a single judge in accordance with article 39, paragraph 2 (b) (iii), it shall do so on the basis of objective pre-established criteria.

rules of procedure and evidence

441

2. The designated judge shall make the appropriate decisions on those questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules. 3. The Pre-Trial Chamber, on its own motion or, if appropriate, at the request of a party, may decide that the functions of the single judge be exercised by the full Chamber. Rule 8 Code of Professional Conduct 1. The Presidency, on the basis of a proposal made by the Registrar, shall draw up a draft Code of Professional Conduct for counsel, after having consulted the Prosecutor. In the preparation of the proposal, the Registrar shall conduct the consultations in accordance with rule 20, subrule 3. 2. The draft Code shall then be transmitted to the Assembly of States Parties, for the purpose of adoption, according to article 112, paragraph 7. 3. The Code shall contain procedures for its amendment. Section II The Office of the Prosecutor Rule 9 Operation of the Office of the Prosecutor In discharging his or her responsibility for the management and administration of the Office of the Prosecutor, the Prosecutor shall put in place regulations to govern the operation of the Office. In preparing or amending these regulations, the Prosecutor shall consult with the Registrar on any matters that may affect the operation of the Registry. Rule 10 Retention of information and evidence The Prosecutor shall be responsible for the retention, storage and security of information and physical evidence obtained in the course of the investigations by his or her Office. Rule 11 Delegation of the Prosecutor’s functions Except for the inherent powers of the Prosecutor set forth in the Statute, inter alia, those described in articles 15 and 53, the Prosecutor or a Deputy

442

rules of procedure and evidence

Prosecutor may authorize staff members of the Office of the Prosecutor, other than those referred to in article 44, paragraph 4, to represent him or her in the exercise of his or her functions. Section III The Registry Subsection 1 General provisions relating to the Registry Rule 12 Qualifications and election of the Registrar and the Deputy Registrar 1. As soon as it is elected, the Presidency shall establish a list of candidates who satisfy the criteria laid down in article 43, paragraph 3, and shall transmit the list to the Assembly of States Parties with a request for any recommendations. 2. Upon receipt of any recommendations from the Assembly of States Parties, the President shall, without delay, transmit the list together with the recommendations to the plenary session. 3. As provided for in article 43, paragraph 4, the Court, meeting in plenary session, shall, as soon as possible, elect the Registrar by an absolute majority, taking into account any recommendations by the Assembly of States Parties. In the event that no candidate obtains an absolute majority on the first ballot, successive ballots shall be held until one candidate obtains an absolute majority. 4. If the need for a Deputy Registrar arises, the Registrar may make a recommendation to the President to that effect. The President shall convene a plenary session to decide on the matter. If the Court, meeting in plenary session, decides by an absolute majority that a Deputy Registrar is to be elected, the Registrar shall submit a list of candidates to the Court. 5. The Deputy Registrar shall be elected by the Court, meeting in plenary session, in the same manner as the Registrar. Rule 13 Functions of the Registrar 1. Without prejudice to the authority of the Office of the Prosecutor under the Statute to receive, obtain and provide information and to establish channels of communication for this purpose, the Registrar shall serve as the channel of communication of the Court.

rules of procedure and evidence

443

2. The Registrar shall also be responsible for the internal security of the Court in consultation with the Presidency and the Prosecutor, as well as the host State. Rule 14 Operation of the Registry 1. In discharging his or her responsibility for the organization and management of the Registry, the Registrar shall put in place regulations to govern the operation of the Registry. In preparing or amending these regulations, the Registrar shall consult with the Prosecutor on any matters which may affect the operation of the Office of the Prosecutor. The regulations shall be approved by the Presidency. 2. The regulations shall provide for defence counsel to have access to appropriate and reasonable administrative assistance from the Registry. Rule 15 Records 1. The Registrar shall keep a database containing all the particulars of each case brought before the Court, subject to any order of a judge or Chamber providing for the non-disclosure of any document or information, and to the protection of sensitive personal data. Information on the database shall be available to the public in the working languages of the Court. 2. The Registrar shall also maintain the other records of the Court. Subsection 2 Victims and Witnesses Unit Rule 16 Responsibilities of the Registrar relating to victims and witnesses 1. In relation to victims, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Providing notice or notification to victims or their legal representatives; (b) Assisting them in obtaining legal advice and organizing their legal representation, and providing their legal representatives with adequate support, assistance and information, including such facilities as may be necessary for the direct performance of their duty, for the purpose of protecting their rights during all stages of the proceedings in accordance with rules 89 to 91;

444

rules of procedure and evidence

(c) Assisting them in participating in the different phases of the proceedings in accordance with rules 89 to 91; (d) Taking gender-sensitive measures to facilitate the participation of victims of sexual violence at all stages of the proceedings. 2. In relation to victims, witnesses and others who are at risk on account of testimony given by such witnesses, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Informing them of their rights under the Statute and the Rules, and of the existence, functions and availability of the Victims and Witnesses Unit; (b) Ensuring that they are aware, in a timely manner, of the relevant decisions of the Court that may have an impact on their interests, subject to provisions on confidentiality. 3. For the fulfilment of his or her functions, the Registrar may keep a special register for victims who have expressed their intention to participate in relation to a specific case. 4. Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential. Rule 17 Functions of the Unit 1. The Victims and Witnesses Unit shall exercise its functions in accordance with article 43, paragraph 6. 2. The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate: (a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances: (i)

Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection; (ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures; (iii) Assisting them in obtaining medical, psychological and other appropriate assistance;

rules of procedure and evidence

445

(iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality; (v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate; (vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule; (b) With respect to witnesses: (i)

Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (ii) Assisting them when they are called to testify before the Court; (iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings. 3. In performing its functions, the Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities. In order to facilitate the participation and protection of children as witnesses, the Unit may assign, as appropriate, and with the agreement of the parents or the legal guardian, a child-support person to assist a child through all stages of the proceedings. Rule 18 Responsibilities of the Unit For the efficient and effective performance of its work, the Victims and Witnesses Unit shall: (a) Ensure that the staff in the Unit maintain confidentiality at all times; (b) While recognizing the specific interests of the Office of the Prosecutor, the defence and the witnesses, respect the interests of the witness, including, where necessary, by maintaining an appropriate separation of the services provided to the prosecution and defence witnesses, and act impartially when cooperating with all parties and in accordance with the rulings and decisions of the Chambers; (c) Have administrative and technical assistance available for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, during all stages of the proceedings and thereafter, as reasonably appropriate; (d) Ensure training of its staff with respect to victims’ and witnesses’ security, integrity and dignity, including matters related to gender and cultural sensitivity;

446

rules of procedure and evidence

(e) Where appropriate, cooperate with intergovernmental and nongovernmental organizations. Rule 19 Expertise in the Unit In addition to the staff mentioned in article 43, paragraph 6, and subject to article 44, the Victims and Witnesses Unit may include, as appropriate, persons with expertise, inter alia, in the following areas: (a) Witness protection and security; (b) Legal and administrative matters, including areas of humanitarian and criminal law; (c) Logistics administration; (d) Psychology in criminal proceedings; (e) Gender and cultural diversity; (f ) Children, in particular traumatized children; (g) Elderly persons, in particular in connection with armed conflict and exile trauma; (h) Persons with disabilities; (i) Social work and counselling; ( j) Health care; (k) Interpretation and translation. Subsection 3 Counsel for the defence Rule 20 Responsibilities of the Registrar relating to the rights of the defence 1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia: (a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b); (b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence; (c) Assist arrested persons, persons to whom article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel;

rules of procedure and evidence

447

(d) Advise the Prosecutor and the Chambers, as necessary, on relevant defence-related issues; (e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f ) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules. 2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel. 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties. Rule 21 Assignment of legal assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.

448

rules of procedure and evidence

Rule 22 Appointment and qualifications of Counsel for the defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties. Section IV Situations that may affect the functioning of the Court Subsection 1 Removal from office and disciplinary measures Rule 23 General principle A judge, the Prosecutor, a Deputy Prosecutor, the Registrar and a Deputy Registrar shall be removed from office or shall be subject to disciplinary measures in such cases and with such guarantees as are established in the Statute and the Rules. Rule 24 Definition of serious misconduct and serious breach of duty 1. For the purposes of article 46, paragraph 1 (a), “serious misconduct” shall be constituted by conduct that: (a) If it occurs in the course of official duties, is incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as:

rules of procedure and evidence

449

(i)

Disclosing facts or information that he or she has acquired in the course of his or her duties or on a matter which is sub judice, where such disclosure is seriously prejudicial to the judicial proceedings or to any person; (ii) Concealing information or circumstances of a nature sufficiently serious to have precluded him or her from holding office; (iii) Abuse of judicial office in order to obtain unwarranted favourable treatment from any authorities, officials or professionals; or (b) If it occurs outside the course of official duties, is of a grave nature that causes or is likely to cause serious harm to the standing of the Court. 2. For the purposes of article 46, paragraph 1 (a), a “serious breach of duty” occurs where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties. This may include, inter alia, situations where the person: (a) Fails to comply with the duty to request to be excused, knowing that there are grounds for doing so; (b) Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial powers. Rule 25 Definition of misconduct of a less serious nature 1. For the purposes of article 47, “misconduct of a less serious nature” shall be constituted by conduct that: (a) If it occurs in the course of official duties, causes or is likely to cause harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as: (i)

Interfering in the exercise of the functions of a person referred to in article 47; (ii) Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or by the Presidency in the exercise of their lawful authority; (iii) Failing to enforce the disciplinary measures to which the Registrar or a Deputy Registrar and other officers of the Court are subject when a judge knows or should know of a serious breach of duty on their part; or (b) If it occurs outside the course of official duties, causes or is likely to cause harm to the standing of the Court.

450

rules of procedure and evidence

2. Nothing in this rule precludes the possibility of the conduct set out in sub-rule 1 (a) constituting “serious misconduct” or “serious breach of duty” for the purposes of article 46, paragraph 1 (a). Rule 26 Receipt of complaints 1. For the purposes of article 46, paragraph 1, and article 47, any complaint concerning any conduct defined under rules 24 and 25 shall include the grounds on which it is based, the identity of the complainant and, if available, any relevant evidence. The complaint shall remain confidential. 2. All complaints shall be transmitted to the Presidency, which may also initiate proceedings on its own motion, and which shall, pursuant to the Regulations, set aside anonymous or manifestly unfounded complaints and transmit the other complaints to the competent organ. The Presidency shall be assisted in this task by one or more judges, appointed on the basis of automatic rotation, in accordance with the Regulations. Rule 27 Common provisions on the rights of the defence 1. In any case in which removal from office under article 46 or disciplinary measures under article 47 is under consideration, the person concerned shall be so informed in a written statement. 2. The person concerned shall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her. 3. The person may be represented by counsel during the process established under this rule. Rule 28 Suspension from duty Where an allegation against a person who is the subject of a complaint is of a sufficiently serious nature, the person may be suspended from duty pending the final decision of the competent organ. Rule 29 Procedure in the event of a request for removal from office 1. In the case of a judge, the Registrar or a Deputy Registrar, the question of removal from office shall be put to a vote at a plenary session. 2. The Presidency shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation adopted in the case of

rules of procedure and evidence

451

a judge, and any decision adopted in the case of the Registrar or a Deputy Registrar. 3. The Prosecutor shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation he or she makes in the case of a Deputy Prosecutor. 4. Where the conduct is found not to amount to serious misconduct or a serious breach of duty, it may be decided in accordance with article 47 that the person concerned has engaged in misconduct of a less serious nature and a disciplinary measure imposed. Rule 30 Procedure in the event of a request for disciplinary measures 1. In the case of a judge, the Registrar or a Deputy Registrar, any decision to impose a disciplinary measure shall be taken by the Presidency. 2. In the case of the Prosecutor, any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties. 3. In the case of a Deputy Prosecutor: (a) Any decision to give a reprimand shall be taken by the Prosecutor; (b) Any decision to impose a pecuniary sanction shall be taken by an absolute majority of the Bureau of the Assembly of States Parties upon the recommendation of the Prosecutor. 4. Reprimands shall be recorded in writing and shall be transmitted to the President of the Bureau of the Assembly of States Parties. Rule 31 Removal from office Once removal from office has been pronounced, it shall take effect immediately. The person concerned shall cease to form part of the Court, including for unfinished cases in which he or she was taking part. Rule 32 Disciplinary measures The disciplinary measures that may be imposed are: (a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned.

452

rules of procedure and evidence

Subsection 2 Excusing, disqualification, death and resignation Rule 33 Excusing of a judge, the Prosecutor or a Deputy Prosecutor 1. A judge, the Prosecutor or a Deputy Prosecutor seeking to be excused from his or her functions shall make a request in writing to the Presidency, setting out the grounds upon which he or she should be excused. 2. The Presidency shall treat the request as confidential and shall not make public the reasons for its decision without the consent of the person concerned. Rule 34 Disqualification of a judge, the Prosecutor or a Deputy Prosecutor 1. In addition to the grounds set out in article 41, paragraph 2, and article 42, paragraph 7, the grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall include, inter alia, the following: (a) Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties; (b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party; (c) Performance of functions, prior to taking office, during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned; (d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned. 2. Subject to the provisions set out in article 41, paragraph 2, and article 42, paragraph 8, a request for disqualification shall be made in writing as soon as there is knowledge of the grounds on which it is based. The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned, who shall be entitled to present written submissions. 3. Any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by a majority of the judges of the Appeals Chamber.

rules of procedure and evidence

453

Rule 35 Duty of a judge, the Prosecutor or a Deputy Prosecutor to request to be excused Where a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused and shall not wait for a request for disqualification to be made in accordance with article 41, paragraph 2, or article 42, paragraph 7, and rule 34. The request shall be made and the Presidency shall deal with it in accordance with rule 33. Rule 36 Death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties of the death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar. Rule 37 Resignation of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall communicate to the Presidency, in writing, his or her decision to resign. The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties. 2. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall endeavour to give notice of the date on which his or her resignation will take effect at least six months in advance. Before the resignation of a judge takes effect, he or she shall make every effort to discharge his or her outstanding responsibilities. Subsection 3 Replacements and alternate judges Rule 38 Replacements 1. A judge may be replaced for objective and justified reasons, inter alia: (a) (b) (c) (d) (e)

Resignation; Accepted excuse; Disqualification; Removal from office; Death.

454

rules of procedure and evidence

2. Replacement shall take place in accordance with the pre-established procedure in the Statute, the Rules and the Regulations. Rule 39 Alternate judges Where an alternate judge has been assigned by the Presidency to a Trial Chamber pursuant to article 74, paragraph 1, he or she shall sit through all proceedings and deliberations of the case, but may not take any part therein and shall not exercise any of the functions of the members of the Trial Chamber hearing the case, unless and until he or she is required to replace a member of the Trial Chamber if that member is unable to continue attending. Alternate judges shall be designated in accordance with a procedure pre-established by the Court. Section V Publication, languages and translation Rule 40 Publication of decisions in official languages of the Court 1. For the purposes of article 50, paragraph 1, the following decisions shall be considered as resolving fundamental issues: (a) All decisions of the Appeals Division; (b) All decisions of the Court on its jurisdiction or on the admissibility of a case pursuant to articles 17, 18, 19 and 20; (c) All decisions of a Trial Chamber on guilt or innocence, sentencing and reparations to victims pursuant to articles 74, 75 and 76; (d) All decisions of a Pre-Trial Chamber pursuant to article 57, paragraph 3 (d). 2. Decisions on confirmation of charges under article 61, paragraph 7, and on offences against the administration of justice under article 70, paragraph 3, shall be published in all the official languages of the Court when the Presidency determines that they resolve fundamental issues. 3. The Presidency may decide to publish other decisions in all the official languages when such decisions concern major issues relating to the interpretation or the implementation of the Statute or concern a major issue of general interest.

rules of procedure and evidence

455

Rule 41 Working languages of the Court 1. For the purposes of article 50, paragraph 2, the Presidency shall authorize the use of an official language of the Court as a working language when: (a) That language is understood and spoken by the majority of those involved in a case before the Court and any of the participants in the proceedings so requests; or (b) The Prosecutor and the defence so request. 2. The Presidency may authorize the use of an official language of the Court as a working language if it considers that it would facilitate the efficiency of the proceedings. Rule 42 Translation and interpretation services The Court shall arrange for the translation and interpretation services necessary to ensure the implementation of its obligations under the Statute and the Rules. Rule 43 Procedure applicable to the publication of documents of the Court The Court shall ensure that all documents subject to publication in accordance with the Statute and the Rules respect the duty to protect the confidentiality of the proceedings and the security of victims and witnesses.

456

rules of procedure and evidence CHAPTER 3

JURISDICTION AND ADMISSIBILITY

Section I Declarations and referrals relating to articles 11, 12, 13 and 14 Rule 44 Declaration provided for in article 12, paragraph 3 1. The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3. 2. When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the Registrar pursuant to article 12, paragraph 3, or when the Registrar acts pursuant to sub-rule 1, the Registrar shall inform the State concerned that the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply. Rule 45 Referral of a situation to the Prosecutor A referral of a situation to the Prosecutor shall be in writing. Section II Initiation of investigations under article 15 Rule 46 Information provided to the Prosecutor under article 15, paragraphs 1 and 2 Where information is submitted under article 15, paragraph 1, or where oral or written testimony is received pursuant to article 15, paragraph 2, at the seat of the Court, the Prosecutor shall protect the confidentiality of such information and testimony or take any other necessary measures, pursuant to his or her duties under the Statute. Rule 47 Testimony under article 15, paragraph 2 1. The provisions of rules 111 and 112 shall apply, mutatis mutandis, to testimony received by the Prosecutor pursuant to article 15, paragraph 2.

rules of procedure and evidence

457

2. When the Prosecutor considers that there is a serious risk that it might not be possible for the testimony to be taken subsequently, he or she may request the Pre-Trial Chamber to take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to appoint a counsel or a judge from the Pre-Trial Chamber to be present during the taking of the testimony in order to protect the rights of the defence. If the testimony is subsequently presented in the proceedings, its admissibility shall be governed by article 69, paragraph 4, and given such weight as determined by the relevant Chamber. Rule 48 Determination of reasonable basis to proceed with an investigation under article 15, paragraph 3 In determining whether there is a reasonable basis to proceed with an investigation under article 15, paragraph 3, the Prosecutor shall consider the factors set out in article 53, paragraph 1 (a) to (c). Rule 49 Decision and notice under article 15, paragraph 6 1. Where a decision under article 15, paragraph 6, is taken, the Prosecutor shall promptly ensure that notice is provided, including reasons for his or her decision, in a manner that prevents any danger to the safety, wellbeing and privacy of those who provided information to him or her under article 15, paragraphs 1 and 2, or the integrity of investigations or proceedings. 2. The notice shall also advise of the possibility of submitting further information regarding the same situation in the light of new facts and evidence. Rule 50 Procedure for authorization by the Pre-Trial Chamber of the commencement of the investigation 1. When the Prosecutor intends to seek authorization from the Pre-Trial Chamber to initiate an investigation pursuant to article 15, paragraph 3, the Prosecutor shall inform victims, known to him or her or to the Victims and Witnesses Unit, or their legal representatives, unless the Prosecutor decides that doing so would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses. The Prosecutor may also give notice by general means in order to reach groups of victims if he or she determines in the particular circumstances of the case that such notice could not pose a danger to the integrity and effective conduct of

458

rules of procedure and evidence

the investigation or to the security and well-being of victims and witnesses. In performing these functions, the Prosecutor may seek the assistance of the Victims and Witnesses Unit as appropriate. 2. A request for authorization by the Prosecutor shall be in writing. 3. Following information given in accordance with sub-rule 1, victims may make representations in writing to the Pre-Trial Chamber within such time limit as set forth in the Regulations. 4. The Pre-Trial Chamber, in deciding on the procedure to be followed, may request additional information from the Prosecutor and from any of the victims who have made representations, and, if it considers it appropriate, may hold a hearing. 5. The Pre-Trial Chamber shall issue its decision, including its reasons, as to whether to authorize the commencement of the investigation in accordance with article 15, paragraph 4, with respect to all or any part of the request by the Prosecutor. The Chamber shall give notice of the decision to victims who have made representations. 6. The above procedure shall also apply to a new request to the PreTrial Chamber pursuant to article 15, paragraph 5. Section III Challenges and preliminary rulings under articles 17, 18 and 19 Rule 51 Information provided under article 17 In considering the matters referred to in article 17, paragraph 2, and in the context of the circumstances of the case, the Court may consider, inter alia, information that the State referred to in article 17, paragraph 1, may choose to bring to the attention of the Court showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct, or that the State has confirmed in writing to the Prosecutor that the case is being investigated or prosecuted. Rule 52 Notification provided for in article 18, paragraph 1 1. Subject to the limitations provided for in article 18, paragraph 1, the notification shall contain information about the acts that may constitute crimes referred to in article 5, relevant for the purposes of article 18, paragraph 2.

rules of procedure and evidence

459

2. A State may request additional information from the Prosecutor to assist it in the application of article 18, paragraph 2. Such a request shall not affect the one-month time limit provided for in article 18, paragraph 2, and shall be responded to by the Prosecutor on an expedited basis. Rule 53 Deferral provided for in article 18, paragraph 2 When a State requests a deferral pursuant to article 18, paragraph 2, that State shall make this request in writing and provide information concerning its investigation, taking into account article 18, paragraph 2. The Prosecutor may request additional information from that State. Rule 54 Application by the Prosecutor under article 18, paragraph 2 1. An application submitted by the Prosecutor to the Pre-Trial Chamber in accordance with article 18, paragraph 2, shall be in writing and shall contain the basis for the application. The information provided by the State under rule 53 shall be communicated by the Prosecutor to the PreTrial Chamber. 2. The Prosecutor shall inform that State in writing when he or she makes an application to the Pre-Trial Chamber under article 18, paragraph 2, and shall include in the notice a summary of the basis of the application. Rule 55 Proceedings concerning article 18, paragraph 2 1. The Pre-Trial Chamber shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. 2. The Pre-Trial Chamber shall examine the Prosecutor’s application and any observations submitted by a State that requested a deferral in accordance with article 18, paragraph 2, and shall consider the factors in article 17 in deciding whether to authorize an investigation. 3. The decision and the basis for the decision of the Pre-Trial Chamber shall be communicated as soon as possible to the Prosecutor and to the State that requested a deferral of an investigation.

460

rules of procedure and evidence

Rule 56 Application by the Prosecutor following review under article 18, paragraph 3 1. Following a review by the Prosecutor as set forth in article 18, paragraph 3, the Prosecutor may apply to the Pre-Trial Chamber for authorization in accordance with article 18, paragraph 2. The application to the Pre-Trial Chamber shall be in writing and shall contain the basis for the application. 2. Any further information provided by the State under article 18, paragraph 5, shall be communicated by the Prosecutor to the Pre-Trial Chamber. 3. The proceedings shall be conducted in accordance with rules 54, subrule 2, and 55. Rule 57 Provisional measures under article 18, paragraph 6 An application to the Pre-Trial Chamber by the Prosecutor in the circumstances provided for in article 18, paragraph 6, shall be considered ex parte and in camera. The Pre-Trial Chamber shall rule on the application on an expedited basis. Rule 58 Proceedings under article 19 1. A request or application made under article 19 shall be in writing and contain the basis for it. 2. When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. It may join the challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first. 3. The Court shall transmit a request or application received under subrule 2 to the Prosecutor and to the person referred to in article 19, paragraph 2, who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons, and shall allow them to submit written observations to the request or application within a period of time determined by the Chamber. 4. The Court shall rule on any challenge or question of jurisdiction first and then on any challenge or question of admissibility.

rules of procedure and evidence

461

Rule 59 Participation in proceedings under article 19, paragraph 3 1. For the purpose of article 19, paragraph 3, the Registrar shall inform the following of any question or challenge of jurisdiction or admissibility which has arisen pursuant to article 19, paragraphs 1, 2 and 3: (a) Those who have referred a situation pursuant to article 13; (b) The victims who have already communicated with the Court in relation to that case or their legal representatives. 2. The Registrar shall provide those referred to in sub-rule 1, in a manner consistent with the duty of the Court regarding the confidentiality of information, the protection of any person and the preservation of evidence, with a summary of the grounds on which the jurisdiction of the Court or the admissibility of the case has been challenged. 3. Those receiving the information, as provided for in sub-rule 1, may make representation in writing to the competent Chamber within such time limit as it considers appropriate. Rule 60 Competent organ to receive challenges If a challenge to the jurisdiction of the Court or to the admissibility of a case is made after a confirmation of the charges but before the constitution or designation of the Trial Chamber, it shall be addressed to the Presidency, which shall refer it to the Trial Chamber as soon as the latter is constituted or designated in accordance with rule 130. Rule 61 Provisional measures under article 19, paragraph 8 When the Prosecutor makes application to the competent Chamber in the circumstances provided for in article 19, paragraph 8, rule 57 shall apply. Rule 62 Proceedings under article 19, paragraph 10 1. If the Prosecutor makes a request under article 19, paragraph 10, he or she shall make the request to the Chamber that made the latest ruling on admissibility. The provisions of rules 58, 59 and 61 shall be applicable. 2. The State or States whose challenge to admissibility under article 19, paragraph 2, provoked the decision of inadmissibility provided for in article 19, paragraph 10, shall be notified of the request of the Prosecutor and shall be given a time limit within which to make representations.

462

rules of procedure and evidence CHAPTER 4

PROVISIONS RELATING TO VARIOUS STAGES OF THE PROCEEDINGS

Section I Evidence Rule 63 General provisions relating to evidence 1. The rules of evidence set forth in this chapter, together with article 69, shall apply in proceedings before all Chambers. 2. A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69. 3. A Chamber shall rule on an application of a party or on its own motion, made under article 64, subparagraph 9 (a), concerning admissibility when it is based on the grounds set out in article 69, paragraph 7. 4. Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence. 5. The Chambers shall not apply national laws governing evidence, other than in accordance with article 21. Rule 64 Procedure relating to the relevance or admissibility of evidence 1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court. 2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.

rules of procedure and evidence

463

3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber. Rule 65 Compellability of witnesses 1. A witness who appears before the Court is compellable by the Court to provide testimony, unless otherwise provided for in the Statute and the Rules, in particular rules 73, 74 and 75. 2. Rule 171 applies to a witness appearing before the Court who is compellable to provide testimony under sub-rule 1. Rule 66 Solemn undertaking 1. Except as described in sub-rule 2, every witness shall, in accordance with article 69, paragraph 1, make the following solemn undertaking before testifying: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.”

2. A person under the age of 18 or a person whose judgement has been impaired and who, in the opinion of the Chamber, does not understand the nature of a solemn undertaking may be allowed to testify without this solemn undertaking if the Chamber considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to speak the truth. 3. Before testifying, the witness shall be informed of the offence defined in article 70, paragraph 1 (a). Rule 67 Live testimony by means of audio or video-link technology 1. In accordance with article 69, paragraph 2, a Chamber may allow a witness to give viva voce (oral) testimony before the Chamber by means of audio or video technology, provided that such technology permits the witness to be examined by the Prosecutor, the defence, and by the Chamber itself, at the time that the witness so testifies. 2. The examination of a witness under this rule shall be conducted in accordance with the relevant rules of this chapter. 3. The Chamber, with the assistance of the Registry, shall ensure that the venue chosen for the conduct of the audio or video-link testimony is conducive to the giving of truthful and open testimony and to the safety, physical and psychological well-being, dignity and privacy of the witness.

464

rules of procedure and evidence

Rule 68 Prior recorded testimony When the Pre-Trial Chamber has not taken measures under article 56, the Trial Chamber may, in accordance with article 69, paragraph 2, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony, provided that: (a) If the witness who gave the previously recorded testimony is not present before the Trial Chamber, both the Prosecutor and the defence had the opportunity to examine the witness during the recording; or (b) If the witness who gave the previously recorded testimony is present before the Trial Chamber, he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings. Rule 69 Agreements as to evidence The Prosecutor and the defence may agree that an alleged fact, which is contained in the charges, the contents of a document, the expected testimony of a witness or other evidence is not contested and, accordingly, a Chamber may consider such alleged fact as being proven, unless the Chamber is of the opinion that a more complete presentation of the alleged facts is required in the interests of justice, in particular the interests of the victims. Rule 70 Principles of evidence in cases of sexual violence In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;

rules of procedure and evidence

465

(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness. Rule 71 Evidence of other sexual conduct In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness. Rule 72 In camera procedure to consider relevance or admissibility of evidence 1. Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in principles (a) through (d) of rule 70, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case. 2. In deciding whether the evidence referred to in sub-rule 1 is relevant or admissible, a Chamber shall hear in camera the views of the Prosecutor, the defence, the witness and the victim or his or her legal representative, if any, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by principles (a) to (d) of rule 70, especially with respect to the proposed questioning of a victim. 3. Where the Chamber determines that the evidence referred to in subrule 2 is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of rule 70. Rule 73 Privileged communications and information 1. Without prejudice to article 67, paragraph 1 (b), communications made in the context of the professional relationship between a person and

466

rules of procedure and evidence

his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless: (a) The person consents in writing to such disclosure; or (b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. 2. Having regard to rule 63, sub-rule 5, communications made in the context of a class of professional or other confidential relationships shall be regarded as privileged, and consequently not subject to disclosure, under the same terms as in sub-rules 1 (a) and 1 (b) if a Chamber decides in respect of that class that: (a) Communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure; (b) Confidentiality is essential to the nature and type of relationship between the person and the confidant; and (c) Recognition of the privilege would further the objectives of the Statute and the Rules. 3. In making a decision under sub-rule 2, the Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of a religious clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion. 4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless: (a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or (b) Such information, documents or other evidence is contained in public statements and documents of ICRC. 5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees

rules of procedure and evidence

467

when such evidence has also been acquired by this source independently of ICRC and its officials or employees. 6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court’s and ICRC’s functions. Rule 74 Self-incrimination by a witness 1. Unless a witness has been notified pursuant to rule 190, the Chamber shall notify a witness of the provisions of this rule before his or her testimony. 2. Where the Court determines that an assurance with respect to selfincrimination should be provided to a particular witness, it shall provide the assurances under sub-rule 3, paragraph (c), before the witness attends, directly or pursuant to a request under article 93, paragraph (1) (e). 3. (a) A witness may object to making any statement that might tend to incriminate him or her. (b) Where the witness has attended after receiving an assurance under sub-rule 2, the Court may require the witness to answer the question or questions. (c) In the case of other witnesses, the Chamber may require the witness to answer the question or questions, after assuring the witness that the evidence provided in response to the questions: (i) Will be kept confidential and will not be disclosed to the public or any State; and (ii) Will not be used either directly or indirectly against that person in any subsequent prosecution by the Court, except under articles 70 and 71. 4. Before giving such an assurance, the Chamber shall seek the views of the Prosecutor, ex parte, to determine if the assurance should be given to this particular witness. 5. In determining whether to require the witness to answer, the Chamber shall consider: (a) The importance of the anticipated evidence; (b) Whether the witness would be providing unique evidence;

468

rules of procedure and evidence

(c) The nature of the possible incrimination, if known; and (d) The sufficiency of the protections for the witness, in the particular circumstances. 6. If the Chamber determines that it would not be appropriate to provide an assurance to this witness, it shall not require the witness to answer the question. If the Chamber determines not to require the witness to answer, it may still continue the questioning of the witness on other matters. 7. In order to give effect to the assurance, the Chamber shall: (a) Order that the evidence of the witness be given in camera; (b) Order that the identity of the witness and the content of the evidence given shall not be disclosed, in any manner, and provide that the breach of any such order will be subject to sanction under article 71; (c) Specifically advise the Prosecutor, the accused, the defence counsel, the legal representative of the victim and any Court staff present of the consequences of a breach of the order under subparagraph (b); (d) Order the sealing of any record of the proceedings; and (e) Use protective measures with respect to any decision of the Court to ensure that the identity of the witness and the content of the evidence given are not disclosed. 8. Where the Prosecutor is aware that the testimony of any witness may raise issues with respect to self-incrimination, he or she shall request an in camera hearing and advise the Chamber of this, in advance of the testimony of the witness. The Chamber may impose the measures outlined in sub-rule 7 for all or a part of the testimony of that witness. 9. The accused, the defence counsel or the witness may advise the Prosecutor or the Chamber that the testimony of a witness will raise issues of self-incrimination before the witness testifies and the Chamber may take the measures outlined in sub-rule 7. 10. If an issue of self-incrimination arises in the course of the proceedings, the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests for the purpose of the application of the rule. Rule 75 Incrimination by family members 1. A witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate that accused person. However, the witness may choose to make such a statement. 2. In evaluating the testimony of a witness, a Chamber may take into

rules of procedure and evidence

469

account that the witness, referred to in sub-rule 1, objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer. Section II Disclosure Rule 76 Pre-trial disclosure relating to prosecution witnesses 1. The Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses. This shall be done sufficiently in advance to enable the adequate preparation of the defence. 2. The Prosecutor shall subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses. 3. The statements of prosecution witnesses shall be made available in original and in a language which the accused fully understands and speaks. 4. This rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in the Statute and rules 81 and 82. Rule 77 Inspection of material in possession or control of the Prosecutor The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person. Rule 78 Inspection of material in possession or control of the defence The defence shall permit the Prosecutor to inspect any books, documents, photographs and other tangible objects in the possession or control of the defence, which are intended for use by the defence as evidence for the purposes of the confirmation hearing or at trial.

470

rules of procedure and evidence

Rule 79 Disclosure by the defence 1. The defence shall notify the Prosecutor of its intent to: (a) Raise the existence of an alibi, in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; or (b) Raise a ground for excluding criminal responsibility provided for in article 31, paragraph 1, in which case the notification shall specify the names of witnesses and any other evidence upon which the accused intends to rely to establish the ground. 2. With due regard to time limits set forth in other rules, notification under sub-rule 1 shall be given sufficiently in advance to enable the Prosecutor to prepare adequately and to respond. The Chamber dealing with the matter may grant the Prosecutor an adjournment to address the issue raised by the defence. 3. Failure of the defence to provide notice under this rule shall not limit its right to raise matters dealt with in sub-rule 1 and to present evidence. 4. This rule does not prevent a Chamber from ordering disclosure of any other evidence. Rule 80 Procedures for raising a ground for excluding criminal responsibility under article 31, paragraph 3 1. The defence shall give notice to both the Trial Chamber and the Prosecutor if it intends to raise a ground for excluding criminal responsibility under article 31, paragraph 3. This shall be done sufficiently in advance of the commencement of the trial to enable the Prosecutor to prepare adequately for trial. 2. Following notice given under sub-rule 1, the Trial Chamber shall hear both the Prosecutor and the defence before deciding whether the defence can raise a ground for excluding criminal responsibility. 3. If the defence is permitted to raise the ground, the Trial Chamber may grant the Prosecutor an adjournment to address that ground.

rules of procedure and evidence

471

Rule 81 Restrictions on disclosure 1. Reports, memoranda or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure. 2. Where material or information is in the possession or control of the Prosecutor which must be disclosed in accordance with the Statute, but disclosure may prejudice further or ongoing investigations, the Prosecutor may apply to the Chamber dealing with the matter for a ruling as to whether the material or information must be disclosed to the defence. The matter shall be heard on an ex parte basis by the Chamber. However, the Prosecutor may not introduce such material or information into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused. 3. Where steps have been taken to ensure the confidentiality of information, in accordance with articles 54, 57, 64, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, such information shall not be disclosed, except in accordance with those articles. When the disclosure of such information may create a risk to the safety of the witness, the Court shall take measures to inform the witness in advance. 4. The Chamber dealing with the matter shall, on its own motion or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial. 5. Where material or information is in the possession or control of the Prosecutor which is withheld under article 68, paragraph 5, such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused. 6. Where material or information is in the possession or control of the defence which is subject to disclosure, it may be withheld in circumstances similar to those which would allow the Prosecutor to rely on article 68, paragraph 5, and a summary thereof submitted instead. Such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the Prosecutor.

472

rules of procedure and evidence

Rule 82 Restrictions on disclosure of material and information protected under article 54, paragraph 3 (e) 1. Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3 (e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused. 2. If the Prosecutor introduces material or information protected under article 54, paragraph 3 (e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance. 3. If the Prosecutor calls a witness to introduce in evidence any material or information which has been protected under article 54, paragraph 3 (e), a Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality. 4. The right of the accused to challenge evidence which has been protected under article 54, paragraph 3 (e), shall remain unaffected subject only to the limitations contained in sub-rules 2 and 3. 5. A Chamber dealing with the matter may order, upon application by the defence, that, in the interests of justice, material or information in the possession of the accused, which has been provided to the accused under the same conditions as set forth in article 54, paragraph 3 (e), and which is to be introduced into evidence, shall be subject mutatis mutandis to subrules 1, 2 and 3. Rule 83 Ruling on exculpatory evidence under article 67, paragraph 2 The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2. Rule 84 Disclosure and additional evidence for trial In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67,

rules of procedure and evidence

473

paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber. Section III Victims and witnesses Subsection 1 Definition and general principle relating to victims Rule 85 Definition of victims For the purposes of the Statute and the Rules of Procedure and Evidence: (a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes. Rule 86 General principle A Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence. Subsection 2 Protection of victims and witnesses Rule 87 Protective measures 1. Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses

474

rules of procedure and evidence

Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure. 2. A motion or request under sub-rule 1 shall be governed by rule 134, provided that: (a) Such a motion or request shall not be submitted ex parte; (b) A request by a witness or by a victim or his or her legal representative, if any, shall be served on both the Prosecutor and the defence, each of whom shall have the opportunity to respond; (c) A motion or request affecting a particular witness or a particular victim shall be served on that witness or victim or his or her legal representative, if any, in addition to the other party, each of whom shall have the opportunity to respond; (d) When the Chamber proceeds on its own motion, notice and opportunity to respond shall be given to the Prosecutor and the defence, and to any witness or any victim or his or her legal representative, if any, who would be affected by such protective measure; and (e) A motion or request may be filed under seal, and, if so filed, shall remain sealed until otherwise ordered by a Chamber. Responses to motions or requests filed under seal shall also be filed under seal. 3. A Chamber may, on a motion or request under sub-rule 1, hold a hearing, which shall be conducted in camera, to determine whether to order measures to prevent the release to the public or press and information agencies, of the identity or the location of a victim, a witness or other person at risk on account of testimony given by a witness by ordering, inter alia: (a) That the name of the victim, witness or other person at risk on account of testimony given by a witness or any information which could lead to his or her identification, be expunged from the public records of the Chamber; (b) That the Prosecutor, the defence or any other participant in the proceedings be prohibited from disclosing such information to a third party; (c) That testimony be presented by electronic or other special means, including the use of technical means enabling the alteration of pictures or voice, the use of audio-visual technology, in particular videoconferencing and closed-circuit television, and the exclusive use of the sound media;

rules of procedure and evidence

475

(d) That a pseudonym be used for a victim, a witness or other person at risk on account of testimony given by a witness; or (e) That a Chamber conduct part of its proceedings in camera. Rule 88 Special measures 1. Upon the motion of the Prosecutor or the defence, or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may, taking into account the views of the victim or witness, order special measures such as, but not limited to, measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the special measure is sought prior to ordering that measure. 2. A Chamber may hold a hearing on a motion or a request under sub-rule 1, if necessary in camera or ex parte, to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness. 3. For inter partes motions or requests filed under this rule, the provisions of rule 87, sub-rules 2 (b) to (d), shall apply mutatis mutandis. 4. A motion or request filed under this rule may be filed under seal, and if so filed shall remain sealed until otherwise ordered by a Chamber. Any responses to inter partes motions or requests filed under seal shall also be filed under seal. 5. Taking into consideration that violations of the privacy of a witness or victim may create risk to his or her security, a Chamber shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence. Subsection 3 Participation of victims in the proceedings Rule 89 Application for participation of victims in the proceedings 1. In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit the application to the relevant Chamber. Subject to the provisions of the Statute, in particular

476

rules of procedure and evidence

article 68, paragraph 1, the Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply within a time limit to be set by the Chamber. Subject to the provisions of sub-rule 2, the Chamber shall then specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements. 2. The Chamber, on its own initiative or on the application of the Prosecutor or the defence, may reject the application if it considers that the person is not a victim or that the criteria set forth in article 68, paragraph 3, are not otherwise fulfilled. A victim whose application has been rejected may file a new application later in the proceedings. 3. An application referred to in this rule may also be made by a person acting with the consent of the victim, or a person acting on behalf of a victim, in the case of a victim who is a child or, when necessary, a victim who is disabled. 4. Where there are a number of applications, the Chamber may consider the applications in such a manner as to ensure the effectiveness of the proceedings and may issue one decision. Rule 90 Legal representatives of victims 1. A victim shall be free to choose a legal representative. 2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives. In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives. 3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose one or more common legal representatives. 4. The Chamber and the Registry shall take all reasonable steps to ensure that in the selection of common legal representatives, the distinct interests of the victims, particularly as provided in article 68, paragraph 1, are represented and that any conflict of interest is avoided. 5. A victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appropriate, financial assistance.

rules of procedure and evidence

477

6. A legal representative of a victim or victims shall have the qualifications set forth in rule 22, sub-rule 1. Rule 91 Participation of legal representatives in the proceedings 1. A Chamber may modify a previous ruling under rule 89. 2. A legal representative of a victim shall be entitled to attend and participate in the proceedings in accordance with the terms of the ruling of the Chamber and any modification thereof given under rules 89 and 90. This shall include participation in hearings unless, in the circumstances of the case, the Chamber concerned is of the view that the representative’s intervention should be confined to written observations or submissions. The Prosecutor and the defence shall be allowed to reply to any oral or written observation by the legal representative for victims. 3. (a) When a legal representative attends and participates in accordance with this rule, and wishes to question a witness, including questioning under rules 67 and 68, an expert or the accused, the legal representative must make application to the Chamber. The Chamber may require the legal representative to provide a written note of the questions and in that case the questions shall be communicated to the Prosecutor and, if appropriate, the defence, who shall be allowed to make observations within a time limit set by the Chamber. (b) The Chamber shall then issue a ruling on the request, taking into account the stage of the proceedings, the rights of the accused, the interests of witnesses, the need for a fair, impartial and expeditious trial and in order to give effect to article 68, paragraph 3. The ruling may include directions on the manner and order of the questions and the production of documents in accordance with the powers of the Chamber under article 64. The Chamber may, if it considers it appropriate, put the question to the witness, expert or accused on behalf of the victim’s legal representative. 4. For a hearing limited to reparations under article 75, the restrictions on questioning by the legal representative set forth in sub-rule 2 shall not apply. In that case, the legal representative may, with the permission of the Chamber concerned, question witnesses, experts and the person concerned. Rule 92 Notification to victims and their legal representatives 1. This rule on notification to victims and their legal representatives shall apply to all proceedings before the Court, except in proceedings provided for in Part 2.

478

rules of procedure and evidence

2. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims concerning the decision of the Prosecutor not to initiate an investigation or not to prosecute pursuant to article 53. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the situation or case in question. The Chamber may order the measures outlined in sub-rule 8 if it considers it appropriate in the particular circumstances. 3. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims regarding its decision to hold a hearing to confirm charges pursuant to article 61. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the case in question. 4. When a notification for participation as provided for in sub-rules 2 and 3 has been given, any subsequent notification as referred to in subrules 5 and 6 shall only be provided to victims or their legal representatives who may participate in the proceedings in accordance with a ruling of the Chamber pursuant to rule 89 and any modification thereof. 5. In a manner consistent with the ruling made under rules 89 to 91, victims or their legal representatives participating in proceedings shall, in respect of those proceedings, be notified by the Registrar in a timely manner of: (a) Proceedings before the Court, including the date of hearings and any postponements thereof, and the date of delivery of the decision; (b) Requests, submissions, motions and other documents relating to such requests, submissions or motions. 6. Where victims or their legal representatives have participated in a certain stage of the proceedings, the Registrar shall notify them as soon as possible of the decisions of the Court in those proceedings. 7. Notifications as referred to in sub-rules 5 and 6 shall be in writing or, where written notification is not possible, in any other form as appropriate. The Registry shall keep a record of all notifications. Where necessary, the Registrar may seek the cooperation of States Parties in accordance with article 93, paragraph 1 (d) and (l). 8. For notification as referred to in sub-rule 3 and otherwise at the request of a Chamber, the Registrar shall take necessary measures to give adequate publicity to the proceedings. In doing so, the Registrar may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations.

rules of procedure and evidence

479

Rule 93 Views of victims or their legal representatives A Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 on any issue, inter alia, in relation to issues referred to in rules 107, 109, 125, 128, 136, 139 and 191. In addition, a Chamber may seek the views of other victims, as appropriate. Subsection 4 Reparations to victims Rule 94 Procedure upon request 1. A victim’s request for reparations under article 75 shall be made in writing and filed with the Registrar. It shall contain the following particulars: (a) The identity and address of the claimant; (b) A description of the injury, loss or harm; (c) The location and date of the incident and, to the extent possible, the identity of the person or persons the victim believes to be responsible for the injury, loss or harm; (d) Where restitution of assets, property or other tangible items is sought, a description of them; (e) Claims for compensation; (f ) Claims for rehabilitation and other forms of remedy; (g) To the extent possible, any relevant supporting documentation, including names and addresses of witnesses. 2. At commencement of the trial and subject to any protective measures, the Court shall ask the Registrar to provide notification of the request to the person or persons named in the request or identified in the charges and, to the extent possible, to any interested persons or any interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3. Rule 95 Procedure on the motion of the Court 1. In cases where the Court intends to proceed on its own motion pursuant to article 75, paragraph 1, it shall ask the Registrar to provide notification of its intention to the person or persons against whom the Court is considering making a determination, and, to the extent possible,

480

rules of procedure and evidence

to victims, interested persons and interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3. 2. If, as a result of notification under sub-rule 1: (a) A victim makes a request for reparations, that request will be determined as if it had been brought under rule 94; (b) A victim requests that the Court does not make an order for reparations, the Court shall not proceed to make an individual order in respect of that victim. Rule 96 Publication of reparation proceedings 1. Without prejudice to any other rules on notification of proceedings, the Registrar shall, insofar as practicable, notify the victims or their legal representatives and the person or persons concerned. The Registrar shall also, having regard to any information provided by the Prosecutor, take all the necessary measures to give adequate publicity of the reparation proceedings before the Court, to the extent possible, to other victims, interested persons and interested States. 2. In taking the measures described in sub-rule 1, the Court may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations in order to give publicity, as widely as possible and by all possible means, to the reparation proceedings before the Court. Rule 97 Assessment of reparations 1. Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both. 2. At the request of victims or their legal representatives, or at the request of the convicted person, or on its own motion, the Court may appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as interested persons and interested States to make observations on the reports of the experts. 3. In all cases, the Court shall respect the rights of victims and the convicted person.

rules of procedure and evidence

481

Rule 98 Trust Fund 1. Individual awards for reparations shall be made directly against a convicted person. 2. The Court may order that an award for reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim. The award for reparations thus deposited in the Trust Fund shall be separated from other resources of the Trust Fund and shall be forwarded to each victim as soon as possible. 3. The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate. 4. Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund. 5. Other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79. Rule 99 Cooperation and protective measures for the purpose of forfeiture under articles 57, paragraph 3 (e), and 75, paragraph 4 1. The Pre-Trial Chamber, pursuant to article 57, paragraph 3 (e), or the Trial Chamber, pursuant to article 75, paragraph 4, may, on its own motion or on the application of the Prosecutor or at the request of the victims or their legal representatives who have made a request for reparations or who have given a written undertaking to do so, determine whether measures should be requested. 2. Notice is not required unless the Court determines, in the particular circumstances of the case, that notification could not jeopardize the effectiveness of the measures requested. In the latter case, the Registrar shall provide notification of the proceedings to the person against whom a request is made and so far as is possible to any interested persons or interested States. 3. If an order is made without prior notification, the relevant Chamber shall request the Registrar, as soon as is consistent with the effectiveness of the measures requested, to notify those against whom a request is made and, to the extent possible, to any interested persons or any interested

482

rules of procedure and evidence

States and invite them to make observations as to whether the order should be revoked or otherwise modified. 4. The Court may make orders as to the timing and conduct of any proceedings necessary to determine these issues. Section IV Miscellaneous provisions Rule 100 Place of the proceedings 1. In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State. 2. An application or recommendation changing the place where the Court sits may be filed at any time after the initiation of an investigation, either by the Prosecutor, the defence or by a majority of the judges of the Court. Such an application or recommendation shall be addressed to the Presidency. It shall be made in writing and specify in which State the Court would sit. The Presidency shall satisfy itself of the views of the relevant Chamber. 3. The Presidency shall consult the State where the Court intends to sit. If that State agrees that the Court can sit in that State, then the decision to sit in a State other than the host State shall be taken by the judges, in plenary session, by a two-thirds majority. Rule 101 Time limits 1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims. 2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court. Rule 102 Communications other than in writing Where a person is unable, due to a disability or illiteracy, to make a written request, application, observation or other communication to the

rules of procedure and evidence

483

Court, the person may make such request, application, observation or communication in audio, video or other electronic form. Rule 103 Amicus curiae and other forms of submission 1. At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate. 2. The Prosecutor and the defence shall have the opportunity to respond to the observations submitted under sub-rule 1. 3. A written observation submitted under sub-rule 1 shall be filed with the Registrar, who shall provide copies to the Prosecutor and the defence. The Chamber shall determine what time limits shall apply to the filing of such observations.

484

rules of procedure and evidence CHAPTER 5

INVESTIGATION AND PROSECUTION

Section I Decision of the Prosecutor regarding the initiation of aninvestigation under article 53, paragraphs 1 and 2 Rule 104 Evaluation of information by the Prosecutor 1. In acting pursuant to article 53, paragraph 1, the Prosecutor shall, in evaluating the information made available to him or her, analyse the seriousness of the information received. 2. For the purposes of sub-rule 1, the Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental and non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. The procedure set out in rule 47 shall apply to the receiving of such testimony. Rule 105 Notification of a decision by the Prosecutor not to initiate an investigation 1. When the Prosecutor decides not to initiate an investigation under article 53, paragraph 1, he or she shall promptly inform in writing the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b). 2. When the Prosecutor decides not to submit to the Pre-Trial Chamber a request for authorization of an investigation, rule 49 shall apply. 3. The notification referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion. 4. In case the Prosecutor decides not to investigate solely on the basis of article 53, paragraph 1 (c), he or she shall inform in writing the PreTrial Chamber promptly after making that decision. 5. The notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion.

rules of procedure and evidence

485

Rule 106 Notification of a decision by the Prosecutor not to prosecute 1. When the Prosecutor decides that there is not a sufficient basis for prosecution under article 53, paragraph 2, he or she shall promptly inform in writing the Pre-Trial Chamber, together with the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b). 2. The notifications referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion. Section II Procedure under article 53, paragraph 3 Rule 107 Request for review under article 53, paragraph 3 (a) 1. A request under article 53, paragraph 3, for a review of a decision by the Prosecutor not to initiate an investigation or not to prosecute shall be made in writing, and be supported with reasons, within 90 days following the notification given under rule 105 or 106. 2. The Pre-Trial Chamber may request the Prosecutor to transmit the information or documents in his or her possession, or summaries thereof, that the Chamber considers necessary for the conduct of the review. 3. The Pre-Trial Chamber shall take such measures as are necessary under articles 54, 72 and 93 to protect the information and documents referred to in sub-rule 2 and, under article 68, paragraph 5, to protect the safety of witnesses and victims and members of their families. 4. When a State or the Security Council makes a request referred to in sub-rule 1, the Pre-Trial Chamber may seek further observations from them. 5. Where an issue of jurisdiction or admissibility of the case is raised, rule 59 shall apply. Rule 108 Decision of the Pre-Trial Chamber under article 53, paragraph 3 (a) 1. A decision of the Pre-Trial Chamber under article 53, paragraph 3 (a), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review. 2. Where the Pre-Trial Chamber requests the Prosecutor to review, in whole or in part, his or her decision not to initiate an investigation or not

486

rules of procedure and evidence

to prosecute, the Prosecutor shall reconsider that decision as soon as possible. 3. Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review. Rule 109 Review by the Pre-Trial Chamber under article 53, paragraph 3 (b) 1. Within 180 days following a notification given under rule 105 or 106, the Pre-Trial Chamber may on its own initiative decide to review a decision of the Prosecutor taken solely under article 53, paragraph 1 (c) or 2 (c). The Pre-Trial Chamber shall inform the Prosecutor of its intention to review his or her decision and shall establish a time limit within which the Prosecutor may submit observations and other material. 2. In cases where a request has been submitted to the Pre-Trial Chamber by a State or by the Security Council, they shall also be informed and may submit observations in accordance with rule 107. Rule 110 Decision by the Pre-Trial Chamber under article 53, paragraph 3 (b) 1. A decision by the Pre-Trial Chamber to confirm or not to confirm a decision taken by the Prosecutor solely under article 53, paragraph 1 (c) or 2 (c), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review. 2. When the Pre-Trial Chamber does not confirm the decision by the Prosecutor referred to in sub-rule 1, he or she shall proceed with the investigation or prosecution. Section III Collection of evidence Rule 111 Record of questioning in general 1. A record shall be made of formal statements made by any person who is questioned in connection with an investigation or with proceedings. The record shall be signed by the person who records and conducts the questioning and by the person who is questioned and his or her counsel, if present, and, where applicable, the Prosecutor or the judge who is pre-

rules of procedure and evidence

487

sent. The record shall note the date, time and place of, and all persons present during the questioning. It shall also be noted when someone has not signed the record as well as the reasons therefor. 2. When the Prosecutor or national authorities question a person, due regard shall be given to article 55. When a person is informed of his or her rights under article 55, paragraph 2, the fact that this information has been provided shall be noted in the record. Rule 112 Recording of questioning in particular cases 1. Whenever the Prosecutor questions a person to whom article 55, paragraph 2, applies, or for whom a warrant of arrest or a summons to appear has been issued under article 58, paragraph 7, the questioning shall be audio- or video-recorded, in accordance with the following procedure: (a) The person questioned shall be informed, in a language he or she fully understands and speaks, that the questioning is to be audio- or videorecorded, and that the person concerned may object if he or she so wishes. The fact that this information has been provided and the response given by the person concerned shall be noted in the record. The person may, before replying, speak in private with his or her counsel, if present. If the person questioned refuses to be audio- or video-recorded, the procedure in rule 111 shall be followed; (b) A waiver of the right to be questioned in the presence of counsel shall be recorded in writing and, if possible, be audio- or video-recorded; (c) In the event of an interruption in the course of questioning, the fact and the time of the interruption shall be recorded before the audio- or video-recording ends as well as the time of resumption of the questioning; (d) At the conclusion of the questioning, the person questioned shall be offered the opportunity to clarify anything he or she has said and to add anything he or she may wish. The time of conclusion of the questioning shall be noted; (e) The tape shall be transcribed as soon as practicable after the conclusion of the questioning and a copy of the transcript supplied to the person questioned together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes; (f ) The original tape or one of the original tapes shall be sealed in the presence of the person questioned and his or her counsel, if present, under the signature of the Prosecutor and the person questioned and the counsel, if present. 2. The Prosecutor shall make every reasonable effort to record the questioning in accordance with sub-rule 1. As an exception, a person may be

488

rules of procedure and evidence

questioned without the questioning being audio- or video-recorded where the circumstances prevent such recording taking place. In this case, the reasons for not recording the questioning shall be stated in writing and the procedure in rule 111 shall be followed. 3. When, pursuant to sub-rule 1 (a) or 2, the questioning is not audioor video-recorded, the person questioned shall be provided with a copy of his or her statement. 4. The Prosecutor may choose to follow the procedure in this rule when questioning other persons than those mentioned in sub-rule 1, in particular where the use of such procedures could assist in reducing any subsequent traumatization of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence. The Prosecutor may make an application to the relevant Chamber. 5. The Pre-Trial Chamber may, in pursuance of article 56, paragraph 2, order that the procedure in this rule be applied to the questioning of any person. Rule 113 Collection of information regarding the state of health of the person concerned 1. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor, the person concerned or his or her counsel, order that a person having the rights in article 55, paragraph 2, be given a medical, psychological or psychiatric examination. In making its determination, the Pre-Trial Chamber shall consider the nature and purpose of the examination and whether the person consents to the examination. 2. The Pre-Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Pre-Trial Chamber at the request of a party. Rule 114 Unique investigative opportunity under article 56 1. Upon being advised by the Prosecutor in accordance with article 56, paragraph 1 (a), the Pre-Trial Chamber shall hold consultations without delay with the Prosecutor and, subject to the provisions of article 56, paragraph 1 (c), with the person who has been arrested or who has appeared before the Court pursuant to summons and his or her counsel, in order to determine the measures to be taken and the modalities of their implementation, which may include measures to ensure that the right to communicate under article 67, paragraph 1 (b), is protected. 2. A decision of the Pre-Trial Chamber to take measures pursuant to article 56, paragraph 3, must be concurred in by a majority of its judges

rules of procedure and evidence

489

after consultations with the Prosecutor. During the consultations, the Prosecutor may advise the Pre-Trial Chamber that intended measures could jeopardize the proper conduct of the investigation. Rule 115 Collection of evidence in the territory of a State Party under article 57, paragraph 3 (d) 1. Where the Prosecutor considers that article 57, paragraph 3 (d), applies, the Prosecutor may submit a written request to the Pre-Trial Chamber for authorization to take certain measures in the territory of the State Party in question. After a submission of such a request, the Pre-Trial Chamber shall, whenever possible, inform and invite views from the State Party concerned. 2. In arriving at its determination as to whether the request is well founded, the Pre-Trial Chamber shall take into account any views expressed by the State Party concerned. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor or the State Party concerned, decide to hold a hearing. 3. An authorization under article 57, paragraph 3 (d), shall be issued in the form of an order and shall state the reasons, based on the criteria set forth in that paragraph. The order may specify procedures to be followed in carrying out such collection of evidence. Rule 116 Collection of evidence at the request of the defence under article 57, paragraph 3 (b) 1. The Pre-Trial Chamber shall issue an order or seek cooperation under article 57, paragraph 3 (b), where it is satisfied: (a) That such an order would facilitate the collection of evidence that may be material to the proper determination of the issues being adjudicated, or to the proper preparation of the person’s defence; and (b) In a case of cooperation under Part 9, that sufficient information to comply with article 96, paragraph 2, has been provided. 2. Before taking a decision whether to issue an order or seek cooperation under article 57, paragraph 3 (b), the Pre-Trial Chamber may seek the views of the Prosecutor.

490

rules of procedure and evidence

Section IV Procedures in respect of restriction and deprivationof liberty Rule 117 Detention in the custodial State 1. The Court shall take measures to ensure that it is informed of the arrest of a person in response to a request made by the Court under article 89 or 92. Once so informed, the Court shall ensure that the person receives a copy of the arrest warrant issued by the Pre-Trial Chamber under article 58 and any relevant provisions of the Statute. The documents shall be made available in a language that the person fully understands and speaks. 2. At any time after arrest, the person may make a request to the PreTrial Chamber for the appointment of counsel to assist with proceedings before the Court and the Pre-Trial Chamber shall take a decision on such request. 3. A challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay. 4. When the competent authority of the custodial State notifies the PreTrial Chamber that a request for release has been made by the person arrested, in accordance with article 59, paragraph 5, the Pre-Trial Chamber shall provide its recommendations within any time limit set by the custodial State. 5. When the Pre-Trial Chamber is informed that the person has been granted interim release by the competent authority of the custodial State, the Pre-Trial Chamber shall inform the custodial State how and when it would like to receive periodic reports on the status of the interim release. Rule 118 Pre-trial detention at the seat of the Court 1. If the person surrendered to the Court makes an initial request for interim release pending trial, either upon first appearance in accordance with rule 121 or subsequently, the Pre-Trial Chamber shall decide upon the request without delay, after seeking the views of the Prosecutor. 2. The Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days and may do so at any time on the request of the person or the Prosecutor.

rules of procedure and evidence

491

3. After the first appearance, a request for interim release must be made in writing. The Prosecutor shall be given notice of such a request. The Pre-Trial Chamber shall decide after having received observations in writing of the Prosecutor and the detained person. The Pre-Trial Chamber may decide to hold a hearing, at the request of the Prosecutor or the detained person or on its own initiative. A hearing must be held at least once every year. Rule 119 Conditional release 1. The Pre-Trial Chamber may set one or more conditions restricting liberty, including the following: (a) The person must not travel beyond territorial limits set by the PreTrial Chamber without the explicit agreement of the Chamber; (b) The person must not go to certain places or associate with certain persons as specified by the Pre-Trial Chamber; (c) The person must not contact directly or indirectly victims or witnesses; (d) The person must not engage in certain professional activities; (e) The person must reside at a particular address as specified by the Pre-Trial Chamber; (f ) The person must respond when summoned by an authority or qualified person designated by the Pre-Trial Chamber; (g) The person must post bond or provide real or personal security or surety, for which the amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber; (h) The person must supply the Registrar with all identity documents, particularly his or her passport. 2. At the request of the person concerned or the Prosecutor or on its own initiative, the Pre-Trial Chamber may at any time decide to amend the conditions set pursuant to sub-rule 1. 3. Before imposing or amending any conditions restricting liberty, the Pre-Trial Chamber shall seek the views of the Prosecutor, the person concerned, any relevant State and victims that have communicated with the Court in that case and whom the Chamber considers could be at risk as a result of a release or conditions imposed. 4. If the Pre-Trial Chamber is convinced that the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person.

492

rules of procedure and evidence

5. When the Pre-Trial Chamber issues a summons to appear pursuant to article 58, paragraph 7, and intends to set conditions restricting liberty, it shall ascertain the relevant provisions of the national law of the State receiving the summons. In a manner that is in keeping with the national law of the State receiving the summons, the Pre-Trial Chamber shall proceed in accordance with sub-rules 1, 2 and 3. If the Pre-Trial Chamber receives information that the person concerned has failed to comply with conditions imposed, it shall proceed in accordance with sub-rule 4. Rule 120 Instruments of restraint Personal instruments of restraint shall not be used except as a precaution against escape, for the protection of the person in the custody of the Court and others or for other security reasons, and shall be removed when the person appears before a Chamber. Section V Proceedings with regard to the confirmation of charges under article 61 Rule 121 Proceedings before the confirmation hearing 1. A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67. At this first appearance, the Pre-Trial Chamber shall set the date on which it intends to hold a hearing to confirm the charges. It shall ensure that this date, and any postponements under sub-rule 7, are made public. 2. In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure: (a) The person concerned may be assisted or represented by the counsel of his or her choice or by a counsel assigned to him or her; (b) The Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions. For each case, a judge of the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her own motion, or at the request of the Prosecutor or the person;

rules of procedure and evidence

493

(c) All evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the PreTrial Chamber. 3. The Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing. 4. Where the Prosecutor intends to amend the charges pursuant to article 61, paragraph 4, he or she shall notify the Pre-Trial Chamber and the person no later than 15 days before the date of the hearing of the amended charges together with a list of evidence that the Prosecutor intends to bring in support of those charges at the hearing. 5. Where the Prosecutor intends to present new evidence at the hearing, he or she shall provide the Pre-Trial Chamber and the person with a list of that evidence no later than 15 days before the date of the hearing. 6. If the person intends to present evidence under article 61, paragraph 6, he or she shall provide a list of that evidence to the Pre-Trial Chamber no later than 15 days before the date of the hearing. The Pre-Trial Chamber shall transmit the list to the Prosecutor without delay. The person shall provide a list of evidence that he or she intends to present in response to any amended charges or a new list of evidence provided by the Prosecutor. 7. The Prosecutor or the person may ask the Pre-Trial Chamber to postpone the date of the confirmation hearing. The Pre-Trial Chamber may also, on its own motion, decide to postpone the hearing. 8. The Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired. 9. The Prosecutor and the person may lodge written submissions with the Pre-Trial Chamber, on points of fact and on law, including grounds for excluding criminal responsibility set forth in article 31, paragraph 1, no later than three days before the date of the hearing. A copy of these submissions shall be transmitted immediately to the Prosecutor or the person, as the case may be. 10. The Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the person and victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.

494

rules of procedure and evidence

Rule 122 Proceedings at the confirmation hearing in the presence of the person charged 1. The Presiding Judge of the Pre-Trial Chamber shall ask the officer of the Registry assisting the Chamber to read out the charges as presented by the Prosecutor. The Presiding Judge shall determine how the hearing is to be conducted and, in particular, may establish the order and the conditions under which he or she intends the evidence contained in the record of the proceedings to be presented. 2. If a question or challenge concerning jurisdiction or admissibility arises, rule 58 applies. 3. Before hearing the matter on the merits, the Presiding Judge of the Pre-Trial Chamber shall ask the Prosecutor and the person whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing. 4. At no subsequent point may the objections and observations made under sub-rule 3 be raised or made again in the confirmation or trial proceedings. 5. If objections or observations referred to in sub-rule 3 are presented, the Presiding Judge of the Pre-Trial Chamber shall invite those referred to in sub-rule 3 to present their arguments, in the order which he or she shall establish. The person shall have the right to reply. 6. If the objections raised or observations made are those referred to in sub-rule 3, the Pre-Trial Chamber shall decide whether to join the issue raised with the examination of the charges and the evidence, or to separate them, in which case it shall adjourn the confirmation hearing and render a decision on the issues raised. 7. During the hearing on the merits, the Prosecutor and the person shall present their arguments in accordance with article 61, paragraphs 5 and 6. 8. The Pre-Trial Chamber shall permit the Prosecutor and the person, in that order, to make final observations. 9. Subject to the provisions of article 61, article 69 shall apply mutatis mutandis at the confirmation hearing. Rule 123 Measures to ensure the presence of the person concerned at the confirmation hearing 1. When a warrant of arrest or summons to appear in accordance with article 58, paragraph 7, has been issued for a person by the Pre-Trial Chamber and the person is arrested or served with the summons, the PreTrial Chamber shall ensure that the person is notified of the provisions of article 61, paragraph 2.

rules of procedure and evidence

495

2. The Pre-Trial Chamber may hold consultations with the Prosecutor, at the request of the latter or on its own initiative, in order to determine whether there is cause to hold a hearing on confirmation of charges under the conditions set forth in article 61, paragraph 2 (b). When the person concerned has a counsel known to the Court, the consultations shall be held in the presence of the counsel unless the Pre-Trial Chamber decides otherwise. 3. The Pre-Trial Chamber shall ensure that a warrant of arrest for the person concerned has been issued and, if the warrant of arrest has not been executed within a reasonable period of time after the issuance of the warrant, that all reasonable measures have been taken to locate and arrest the person. Rule 124 Waiver of the right to be present at the confirmation hearing 1. If the person concerned is available to the Court but wishes to waive the right to be present at the hearing on confirmation of charges, he or she shall submit a written request to the Pre-Trial Chamber, which may then hold consultations with the Prosecutor and the person concerned, assisted or represented by his or her counsel. 2. A confirmation hearing pursuant to article 61, paragraph 2 (a), shall only be held when the Pre-Trial Chamber is satisfied that the person concerned understands the right to be present at the hearing and the consequences of waiving this right. 3. The Pre-Trial Chamber may authorize and make provision for the person to observe the hearing from outside the courtroom through the use of communications technology, if required. 4. The waiving of the right to be present at the hearing does not prevent the Pre-Trial Chamber from receiving written observations on issues before the Chamber from the person concerned. Rule 125 Decision to hold the confirmation hearing in the absence of the person concerned 1. After holding consultations under rules 123 and 124, the Pre-Trial Chamber shall decide whether there is cause to hold a hearing on confirmation of charges in the absence of the person concerned, and in that case, whether the person may be represented by counsel. The PreTrial Chamber shall, when appropriate, set a date for the hearing and make the date public.

496

rules of procedure and evidence

2. The decision of the Pre-Trial Chamber shall be notified to the Prosecutor and, if possible, to the person concerned or his or her counsel. 3. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is not available to the Court, the confirmation of charges may not take place until the person is available to the Court. The Pre-Trial Chamber may review its decision at any time, at the request of the Prosecutor or on its own initiative. 4. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is available to the Court, it shall order the person to appear. Rule 126 Confirmation hearing in the absence of the person concerned 1. The provisions of rules 121 and 122 shall apply mutatis mutandis to the preparation for and holding of a hearing on confirmation of charges in the absence of the person concerned. 2. If the Pre-Trial Chamber has determined that the person concerned shall be represented by counsel, the counsel shall have the opportunity to exercise the rights of that person. 3. When the person who has fled is subsequently arrested and the Court has confirmed the charges upon which the Prosecutor intends to pursue the trial, the person charged shall be committed to the Trial Chamber established under article 61, paragraph 11. The person charged may request in writing that the Trial Chamber refer issues to the Pre-Trial Chamber that are necessary for the Chamber’s effective and fair functioning in accordance with article 64, paragraph 4. Section VI Closure of the pre-trial phase Rule 127 Procedure in the event of different decisions on multiple charges If the Pre-Trial Chamber is ready to confirm some of the charges but adjourns the hearing on other charges under article 61, paragraph 7 (c), it may decide that the committal of the person concerned to the Trial Chamber on the charges that it is ready to confirm shall be deferred pending the continuation of the hearing. The Pre-Trial Chamber may then establish a time limit within which the Prosecutor may proceed in accordance with article 61, paragraph 7 (c) (i) or (ii).

rules of procedure and evidence

497

Rule 128 Amendment of the charges 1. If the Prosecutor seeks to amend charges already confirmed before the trial has begun, in accordance with article 61, the Prosecutor shall make a written request to the Pre-Trial Chamber, and that Chamber shall so notify the accused. 2. Before deciding whether to authorize the amendment, the Pre-Trial Chamber may request the accused and the Prosecutor to submit written observations on certain issues of fact or law. 3. If the Pre-Trial Chamber determines that the amendments proposed by the Prosecutor constitute additional or more serious charges, it shall proceed, as appropriate, in accordance with rules 121 and 122 or rules 123 to 126. Rule 129 Notification of the decision on the confirmation of charges The decision of the Pre-Trial Chamber on the confirmation of charges and the committal of the accused to the Trial Chamber shall be notified, if possible, to the Prosecutor, the person concerned and his or her counsel. Such decision and the record of the proceedings of the Pre-Trial Chamber shall be transmitted to the Presidency. Rule 130 Constitution of the Trial Chamber When the Presidency constitutes a Trial Chamber and refers the case to it, the Presidency shall transmit the decision of the Pre-Trial Chamber and the record of the proceedings to the Trial Chamber. The Presidency may also refer the case to a previously constituted Trial Chamber.

498

rules of procedure and evidence CHAPTER 6

TRIAL PROCEDURE

Rule 131 Record of the proceedings transmitted by the Pre-Trial Chamber 1. The Registrar shall maintain the record of the proceedings transmitted by the Pre-Trial Chamber, pursuant to rule 121, sub-rule 10. 2. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the defence, the representatives of States when they participate in the proceedings, and the victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91. Rule 132 Status conferences 1. Promptly after it is constituted, the Trial Chamber shall hold a status conference in order to set the date of the trial. The Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may postpone the date of the trial. The Trial Chamber shall notify the trial date to all those participating in the proceedings. The Trial Chamber shall ensure that this date and any postponements are made public. 2. In order to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber may confer with the parties by holding status conferences as necessary. Rule 133 Motions challenging admissibility or jurisdiction Challenges to the jurisdiction of the Court or the admissibility of the case at the commencement of the trial, or subsequently with the leave of the Court, shall be dealt with by the Presiding Judge and the Trial Chamber in accordance with rule 58. Rule 134 Motions relating to the trial proceedings 1. Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings. Any request from the Prosecutor or the defence shall be in writing and, unless the request

rules of procedure and evidence

499

is for an ex parte procedure, served on the other party. For all requests other than those submitted for an ex parte procedure, the other party shall have the opportunity to file a response. 2. At the commencement of the trial, the Trial Chamber shall ask the Prosecutor and the defence whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings. Such objections or observations may not be raised or made again on a subsequent occasion in the trial proceedings, without leave of the Trial Chamber in this proceeding. 3. After the commencement of the trial, the Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may rule on issues that arise during the course of the trial. Rule 135 Medical examination of the accused 1. The Trial Chamber may, for the purpose of discharging its obligations under article 64, paragraph 8 (a), or for any other reasons, or at the request of a party, order a medical, psychiatric or psychological examination of the accused, under the conditions set forth in rule 113. 2. The Trial Chamber shall place its reasons for any such order on the record. 3. The Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Trial Chamber at the request of a party. 4. Where the Trial Chamber is satisfied that the accused is unfit to stand trial, it shall order that the trial be adjourned. The Trial Chamber may, on its own motion or at the request of the prosecution or the defence, review the case of the accused. In any event, the case shall be reviewed every 120 days unless there are reasons to do otherwise. If necessary, the Trial Chamber may order further examinations of the accused. When the Trial Chamber is satisfied that the accused has become fit to stand trial, it shall proceed in accordance with rule 132. Rule 136 Joint and separate trials 1. Persons accused jointly shall be tried together unless the Trial Chamber, on its own motion or at the request of the Prosecutor or the defence, orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interests of justice or because a person jointly accused has made an admission of guilt and can be proceeded against in accordance with article 65, paragraph 2.

500

rules of procedure and evidence

2. In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately. Rule 137 Record of the trial proceedings 1. In accordance with article 64, paragraph 10, the Registrar shall take measures to make, and preserve, a full and accurate record of all proceedings, including transcripts, audio- and video-recordings and other means of capturing sound or image. 2. A Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist. 3. The Trial Chamber may authorize persons other than the Registrar to take photographs, audio- and video-recordings and other means of capturing the sound or image of the trial. Rule 138 Custody of evidence The Registrar shall retain and preserve, as necessary, all the evidence and other materials offered during the hearing, subject to any order of the Trial Chamber. Rule 139 Decision on admission of guilt 1. After having proceeded in accordance with article 65, paragraph 1, the Trial Chamber, in order to decide whether to proceed in accordance with article 65, paragraph 4, may invite the views of the Prosecutor and the defence. 2. The Trial Chamber shall then make its decision on the admission of guilt and shall give reasons for this decision, which shall be placed on the record. Rule 140 Directions for the conduct of the proceedings and testimony 1. If the Presiding Judge does not give directions under article 64, paragraph 8, the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions.

rules of procedure and evidence

501

2. In all cases, subject to article 64, paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88, sub-rule 5, a witness may be questioned as follows: (a) A party that submits evidence in accordance with article 69, paragraph 3, by way of a witness, has the right to question that witness; (b) The prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters; (c) The Trial Chamber has the right to question a witness before or after a witness is questioned by a participant referred to in sub-rules 2 (a) or (b); (d) The defence shall have the right to be the last to examine a witness. 3. Unless otherwise ordered by the Trial Chamber, a witness other than an expert, or an investigator if he or she has not yet testified, shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying. When a witness testifies after hearing the testimony of others, this fact shall be noted in the record and considered by the Trial Chamber when evaluating the evidence. Rule 141 Closure of evidence and closing statements 1. The Presiding Judge shall declare when the submission of evidence is closed. 2. The Presiding Judge shall invite the Prosecutor and the defence to make their closing statements. The defence shall always have the opportunity to speak last. Rule 142 Deliberations 1. After the closing statements, the Trial Chamber shall retire to deliberate, in camera. The Trial Chamber shall inform all those who participated in the proceedings of the date on which the Trial Chamber will pronounce its decision. The pronouncement shall be made within a reasonable period of time after the Trial Chamber has retired to deliberate. 2. When there is more than one charge, the Trial Chamber shall decide separately on each charge. When there is more than one accused, the Trial Chamber shall decide separately on the charges against each accused.

502

rules of procedure and evidence

Rule 143 Additional hearings on matters related to sentence or reparations Pursuant to article 76, paragraphs 2 and 3, for the purpose of holding a further hearing on matters related to sentence and, if applicable, reparations, the Presiding Judge shall set the date of the further hearing. This hearing can be postponed, in exceptional circumstances, by the Trial Chamber, on its own motion or at the request of the Prosecutor, the defence or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91 and, in respect of reparations hearings, those victims who have made a request under rule 94. Rule 144 Delivery of the decisions of the Trial Chamber 1. Decisions of the Trial Chamber concerning admissibility of a case, the jurisdiction of the Court, criminal responsibility of the accused, sentence and reparations shall be pronounced in public and, wherever possible, in the presence of the accused, the Prosecutor, the victims or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91, and the representatives of the States which have participated in the proceedings. 2. Copies of all the above-mentioned decisions shall be provided as soon as possible to: (a) All those who participated in the proceedings, in a working language of the Court; (b) The accused, in a language he or she fully understands or speaks, if necessary to meet the requirements of fairness under article 67, paragraph 1 (f ).

rules of procedure and evidence

503

CHAPTER 7

PENALTIES

Rule 145 Determination of sentence 1. In its determination of the sentence pursuant to article 78, paragraph 1, the Court shall: (a) Bear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under article 77 must reflect the culpability of the convicted person; (b) Balance all the relevant factors, including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime; (c) In addition to the factors mentioned in article 78, paragraph 1, give consideration, inter alia, to the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person. 2. In addition to the factors mentioned above, the Court shall take into account, as appropriate: (a) Mitigating circumstances such as: (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress; (ii) The convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court; (b) As aggravating circumstances: (i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature; (ii) Abuse of power or official capacity; (iii) Commission of the crime where the victim is particularly defenceless; (iv) Commission of the crime with particular cruelty or where there were multiple victims;

504

rules of procedure and evidence (v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3; (vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned.

3. Life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating circumstances. Rule 146 Imposition of fines under article 77 1. In determining whether to order a fine under article 77, paragraph 2 (a), and in fixing the amount of the fine, the Court shall determine whether imprisonment is a sufficient penalty. The Court shall give due consideration to the financial capacity of the convicted person, including any orders for forfeiture in accordance with article 77, paragraph 2 (b), and, as appropriate, any orders for reparation in accordance with article 75. The Court shall take into account, in addition to the factors referred to in rule 145, whether and to what degree the crime was motivated by personal financial gain. 2. A fine imposed under article 77, paragraph 2 (a), shall be set at an appropriate level. To this end, the Court shall, in addition to the factors referred to above, in particular take into consideration the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator. Under no circumstances may the total amount exceed 75 per cent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants. 3. In imposing a fine, the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period. 4. In imposing a fine, the Court may, as an option, calculate it according to a system of daily fines. In such cases, the minimum duration shall be 30 days and the maximum duration five years. The Court shall decide the total amount in accordance with sub-rules 1 and 2. It shall determine the amount of daily payment in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependants. 5. If the convicted person does not pay the fine imposed in accordance with the conditions set above, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109.

rules of procedure and evidence

505

Where, in cases of continued wilful non-payment, the Presidency, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort extend the term of imprisonment for a period not to exceed a quarter of such term or five years, whichever is less. In the determination of such period of extension, the Presidency shall take into account the amount of the fine, imposed and paid. Any such extension shall not apply in the case of life imprisonment. The extension may not lead to a total period of imprisonment in excess of 30 years. 6. In order to determine whether to order an extension and the period involved, the Presidency shall sit in camera for the purpose of obtaining the views of the sentenced person and the Prosecutor. The sentenced person shall have the right to be assisted by counsel. 7. In imposing a fine, the Court shall warn the convicted person that failure to pay the fine in accordance with the conditions set out above may result in an extension of the period of imprisonment as described in this rule. Rule 147 Orders of forfeiture 1. In accordance with article 76, paragraphs 2 and 3, and rules 63, subrule 1, and 143, at any hearing to consider an order of forfeiture, Chamber shall hear evidence as to the identification and location of specific proceeds, property or assets which have been derived directly or indirectly from the crime. 2. If before or during the hearing, a Chamber becomes aware of any bona fide third party who appears to have an interest in relevant proceeds, property or assets, it shall give notice to that third party. 3. The Prosecutor, the convicted person and any bona fide third party with an interest in the relevant proceeds, property or assets may submit evidence relevant to the issue. 4. After considering any evidence submitted, a Chamber may issue an order of forfeiture in relation to specific proceeds, property or assets if it is satisfied that these have been derived directly or indirectly from the crime. Rule 148 Orders to transfer fines or forfeitures to the Trust Fund Before making an order pursuant to article 79, paragraph 2, a Chamber may request the representatives of the Fund to submit written or oral observations to it.

506

rules of procedure and evidence CHAPTER 8

APPEAL AND REVISION

Section I General provisions Rule 149 Rules governing proceedings in the Appeals Chamber Parts 5 and 6 and rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber. Section II Appeals against convictions, acquittals, sentences and reparation orders Rule 150 Appeal 1. Subject to sub-rule 2, an appeal against a decision of conviction or acquittal under article 74, a sentence under article 76 or a reparation order under article 75 may be filed not later than 30 days from the date on which the party filing the appeal is notified of the decision, the sentence or the reparation order. 2. The Appeals Chamber may extend the time limit set out in sub-rule 1, for good cause, upon the application of the party seeking to file the appeal. 3. The appeal shall be filed with the Registrar. 4. If an appeal is not filed as set out in sub-rules 1 to 3, the decision, the sentence or the reparation order of the Trial Chamber shall become final. Rule 151 Procedure for the appeal 1. Upon the filing of an appeal under rule 150, the Registrar shall transmit the trial record to the Appeals Chamber. 2. The Registrar shall notify all parties who participated in the proceedings before the Trial Chamber that an appeal has been filed.

rules of procedure and evidence

507

Rule 152 Discontinuance of the appeal 1. Any party who has filed an appeal may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed. 2. If the Prosecutor has filed an appeal on behalf of a convicted person in accordance with article 81, paragraph 1 (b), before filing any notice of discontinuance, the Prosecutor shall inform the convicted person that he or she intends to discontinue the appeal in order to give him or her the opportunity to continue the appeal proceedings. Rule 153 Judgement on appeals against reparation orders 1. The Appeals Chamber may confirm, reverse or amend a reparation order made under article 75. 2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraphs 4 and 5. Section III Appeals against other decisions Rule 154 Appeals that do not require the leave of the Court 1. An appeal may be filed under article 81, paragraph 3 (c) (ii), or article 82, paragraph 1 (a) or (b), not later than five days from the date upon which the party filing the appeal is notified of the decision. 2. An appeal may be filed under article 82, paragraph 1 (c), not later than two days from the date upon which the party filing the appeal is notified of the decision. 3. Rule 150, sub-rules 3 and 4, shall apply to appeals filed under subrules 1 and 2 of this rule. Rule 155 Appeals that require leave of the Court 1. When a party wishes to appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, that party shall, within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal.

508

rules of procedure and evidence

2. The Chamber shall render a decision and shall notify all parties who participated in the proceedings that gave rise to the decision referred to in sub-rule 1. Rule 156 Procedure for the appeal 1. As soon as an appeal has been filed under rule 154 or as soon as leave to appeal has been granted under rule 155, the Registrar shall transmit to the Appeals Chamber the record of the proceedings of the Chamber that made the decision that is the subject of the appeal. 2. The Registrar shall give notice of the appeal to all parties who participated in the proceedings before the Chamber that gave the decision that is the subject of the appeal, unless they have already been notified by the Chamber under rule 155, sub-rule 2. 3. The appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing. 4. The appeal shall be heard as expeditiously as possible. 5. When filing the appeal, the party appealing may request that the appeal have suspensive effect in accordance with article 82, paragraph 3. Rule 157 Discontinuance of the appeal Any party who has filed an appeal under rule 154 or who has obtained the leave of a Chamber to appeal a decision under rule 155 may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed. Rule 158 Judgement on the appeal 1. An Appeals Chamber which considers an appeal referred to in this section may confirm, reverse or amend the decision appealed. 2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraph 4.

rules of procedure and evidence

509

Section IV Revision of conviction or sentence Rule 159 Application for revision 1. An application for revision provided for in article 84, paragraph 1, shall be in writing and shall set out the grounds on which the revision is sought. It shall as far as possible be accompanied by supporting material. 2. The determination on whether the application is meritorious shall be taken by a majority of the judges of the Appeals Chamber and shall be supported by reasons in writing. 3. Notification of the decision shall be sent to the applicant and, as far as possible, to all the parties who participated in the proceedings related to the initial decision. Rule 160 Transfer for the purpose of revision 1. For the conduct of the hearing provided for in rule 161, the relevant Chamber shall issue its order sufficiently in advance to enable the transfer of the sentenced person to the seat of the Court, as appropriate. 2. The determination of the Court shall be communicated without delay to the State of enforcement. 3. The provisions of rule 206, sub-rule 3, shall be applicable. Rule 161 Determination on revision 1. On a date which it shall determine and shall communicate to the applicant and to all those having received notification under rule 159, subrule 3, the relevant Chamber shall hold a hearing to determine whether the conviction or sentence should be revised. 2. For the conduct of the hearing, the relevant Chamber shall exercise, mutatis mutandis, all the powers of the Trial Chamber pursuant to Part 6 and the rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers. 3. The determination on revision shall be governed by the applicable provisions of article 83, paragraph 4.

rules of procedure and evidence

510

CHAPTER 9

OFFENCES AND MISCONDUCT AGAINST THE COURT

Section I Offences against the administration of justice under article 70 Rule 162 Exercise of jurisdiction 1. Before deciding whether to exercise jurisdiction, the Court may consult with States Parties that may have jurisdiction over the offence. 2. In making a decision whether or not to exercise jurisdiction, the Court may consider, in particular: (a) The availability and effectiveness of prosecution in a State Party; (b) The seriousness of an offence; (c) The possible joinder of charges under article 70 with charges under articles 5 to 8; (d) The need to expedite proceedings; (e) Links with an ongoing investigation or a trial before the Court; and (f ) Evidentiary considerations. 3. The Court shall give favourable consideration to a request from the host State for a waiver of the power of the Court to exercise jurisdiction in cases where the host State considers such a waiver to be of particular importance. 4. If the Court decides not to exercise its jurisdiction, it may request a State Party to exercise jurisdiction pursuant to article 70, paragraph 4. Rule 163 Application of the Statute and the Rules 1. Unless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169, the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70. 2. The provisions of Part 2, and any rules thereunder, shall not apply, with the exception of article 21. 3. The provisions of Part 10, and any rules thereunder, shall not apply, with the exception of articles 103, 107, 109 and 111.

rules of procedure and evidence

511

Rule 164 Periods of limitation 1. If the Court exercises jurisdiction in accordance with rule 162, it shall apply the periods of limitation set forth in this rule. 2. Offences defined in article 70 shall be subject to a period of limitation of five years from the date on which the offence was committed, provided that during this period no investigation or prosecution has been initiated. The period of limitation shall be interrupted if an investigation or prosecution has been initiated during this period, either before the Court or by a State Party with jurisdiction over the case pursuant to article 70, paragraph 4 (a). 3. Enforcement of sanctions imposed with respect to offences defined in article 70 shall be subject to a period of limitation of 10 years from the date on which the sanction has become final. The period of limitation shall be interrupted with the detention of the convicted person or while the person concerned is outside the territory of the States Parties. Rule 165 Investigation, prosecution and trial 1. The Prosecutor may initiate and conduct investigations with respect to the offences defined in article 70 on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source. 2. Articles 53 and 59, and any rules thereunder, shall not apply. 3. For purposes of article 61, the Pre-Trial Chamber may make any of the determinations set forth in that article on the basis of written submissions, without a hearing, unless the interests of justice otherwise require. 4. A Trial Chamber may, as appropriate and taking into account the rights of the defence, direct that there be joinder of charges under article 70 with charges under articles 5 to 8. Rule 166 Sanctions under article 70 1. If the Court imposes sanctions with respect to article 70, this rule shall apply. 2. Article 77, and any rules thereunder, shall not apply, with the exception of an order of forfeiture under article 77, paragraph 2 (b), which may be ordered in addition to imprisonment or a fine or both. 3. Each offence may be separately fined and those fines may be cumulative. Under no circumstances may the total amount exceed 50 per cent

512

rules of procedure and evidence

of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants. 4. In imposing a fine the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period. 5. If the convicted person does not pay a fine imposed in accordance with the conditions set forth in sub-rule 4, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Court, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort impose a term of imprisonment in accordance with article 70, paragraph 3. In the determination of such term of imprisonment, the Court shall take into account the amount of fine paid. Rule 167 International cooperation and judicial assistance 1. With regard to offences under article 70, the Court may request a State to provide any form of international cooperation or judicial assistance corresponding to those forms set forth in Part 9. In any such request, the Court shall indicate that the basis for the request is an investigation or prosecution of offences under article 70. 2. The conditions for providing international cooperation or judicial assistance to the Court with respect to offences under article 70 shall be those set forth in article 70, paragraph 2. Rule 168 Ne bis in idem In respect of offences under article 70, no person shall be tried before the Court with respect to conduct which formed the basis of an offence for which the person has already been convicted or acquitted by the Court or another court. Rule 169 Immediate arrest In the case of an alleged offence under article 70 committed in the presence of a Chamber, the Prosecutor may orally request that Chamber to order the immediate arrest of the person concerned.

rules of procedure and evidence

513

Section II Misconduct before the Court under article 71 Rule 170 Disruption of proceedings Having regard to article 63, paragraph 2, the Presiding Judge of the Chamber dealing with the matter may, after giving a warning: (a) Order a person disrupting the proceedings of the Court to leave or be removed from the courtroom; or, (b) In case of repeated misconduct, order the interdiction of that person from attending the proceedings. Rule 171 Refusal to comply with a direction by the Court 1. When the misconduct consists of deliberate refusal to comply with an oral or written direction by the Court, not covered by rule 170, and that direction is accompanied by a warning of sanctions in case of breach, the Presiding Judge of the Chamber dealing with the matter may order the interdiction of that person from the proceedings for a period not exceeding 30 days or, if the misconduct is of a more serious nature, impose a fine. 2. If the person committing misconduct as described in sub-rule 1 is an official of the Court, or a defence counsel, or a legal representative of victims, the Presiding Judge of the Chamber dealing with the matter may also order the interdiction of that person from exercising his or her functions before the Court for a period not exceeding 30 days. 3. If the Presiding Judge in cases under sub-rules 1 and 2 considers that a longer period of interdiction is appropriate, the Presiding Judge shall refer the matter to the Presidency, which may hold a hearing to determine whether to order a longer or permanent period of interdiction. 4. A fine imposed under sub-rule 1 shall not exceed 2,000 euros, or the equivalent amount in any currency, provided that in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative. 5. The person concerned shall be given an opportunity to be heard before a sanction for misconduct, as described in this rule, is imposed. Rule 172 Conduct covered by both articles 70 and 71 If conduct covered by article 71 also constitutes one of the offences defined in article 70, the Court shall proceed in accordance with article 70 and rules 162 to 169.

514

rules of procedure and evidence CHAPTER 10

COMPENSATION TO AN ARRESTED OR CONVICTED PERSON Rule 173 Request for compensation 1. Anyone seeking compensation on any of the grounds indicated in article 85 shall submit a request, in writing, to the Presidency, which shall designate a Chamber composed of three judges to consider the request. These judges shall not have participated in any earlier judgement of the Court regarding the person making the request. 2. The request for compensation shall be submitted not later than six months from the date the person making the request was notified of the decision of the Court concerning: (a) The graph 1; (b) The (c) The article 85,

unlawfulness of the arrest or detention under article 85, parareversal of the conviction under article 85, paragraph 2; existence of a grave and manifest miscarriage of justice under paragraph 3.

3. The request shall contain the grounds and the amount of compensation requested. 4. The person requesting compensation shall be entitled to legal assistance. Rule 174 Procedure for seeking compensation 1. A request for compensation and any other written observation by the person filing the request shall be transmitted to the Prosecutor, who shall have an opportunity to respond in writing. Any observations by the Prosecutor shall be notified to the person filing the request. 2. The Chamber designated under rule 173, sub-rule 1, may either hold a hearing or determine the matter on the basis of the request and any written observations by the Prosecutor and the person filing the request. A hearing shall be held if the Prosecutor or the person seeking compensation so requests. 3. The decision shall be taken by the majority of the judges. The decision shall be notified to the Prosecutor and to the person filing the request.

rules of procedure and evidence

515

Rule 175 Amount of compensation In establishing the amount of any compensation in conformity with article 85, paragraph 3, the Chamber designated under rule 173, sub-rule 1, shall take into consideration the consequences of the grave and manifest miscarriage of justice on the personal, family, social and professional situation of the person filing the request.

516

rules of procedure and evidence CHAPTER 11

INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

Section I Requests for cooperation under article 87 Rule 176 Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance 1. Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary-General of the United Nations any communication made by States pursuant to article 87, paragraphs 1 (a) and 2. 2. The Registrar shall transmit the requests for cooperation made by the Chambers and shall receive the responses, information and documents from requested States. The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses, information and documents from requested States. 3. The Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged with receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such information available to States Parties as may be appropriate. 4. The provisions of sub-rule 2 are applicable mutatis mutandis where the Court requests information, documents or other forms of cooperation and assistance from an intergovernmental organization. 5. The Registrar shall transmit any communications referred to in subrules 1 and 3 and rule 177, sub-rule 2, as appropriate, to the Presidency or the Office of the Prosecutor, or both. Rule 177 Channels of communication 1. Communications concerning the national authority charged with receiving requests for cooperation made upon ratification, acceptance, approval or accession shall provide all relevant information about such authorities. 2. When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6, the Registrar shall, when necessary, ascertain its designated channel of communication and obtain all relevant information relating thereto.

rules of procedure and evidence

517

Rule 178 Language chosen by States Parties under article 87, paragraph 2 1. When a requested State Party has more than one official language, it may indicate upon ratification, acceptance, approval or accession that requests for cooperation and any supporting documents can be drafted in any one of its official languages. 2. When the requested State Party has not chosen a language for communication with the Court upon ratification, acceptance, accession or approval, the request for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court pursuant to article 87, paragraph 2. Rule 179 Language of requests directed to States not party to the Statute When a State not party to the Statute has agreed to provide assistance to the Court under article 87, paragraph 5, and has not made a choice of language for such requests, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court. Rule 180 Changes in the channels of communication or the languages of requests for cooperation 1. Changes concerning the channel of communication or the language a State has chosen under article 87, paragraph 2, shall be communicated in writing to the Registrar at the earliest opportunity. 2. Such changes shall take effect in respect of requests for cooperation made by the Court at a time agreed between the Court and the State or, in the absence of such an agreement, 45 days after the Court has received the communication and, in all cases, without prejudice to current requests or requests in progress. Section II Surrender, transit and competing requests under articles 89 and 90 Rule 181 Challenge to admissibility of a case before a national court When a situation described in article 89, paragraph 2, arises, and without prejudice to the provisions of article 19 and of rules 58 to 62 on procedures applicable to challenges to the jurisdiction of the Court or the

518

rules of procedure and evidence

admissibility of a case, the Chamber dealing with the case, if the admissibility ruling is still pending, shall take steps to obtain from the requested State all the relevant information about the ne bis in idem challenge brought by the person. Rule 182 Request for transit under article 89, paragraph 3 (e) 1. In situations described in article 89, paragraph 3 (e), the Court may transmit the request for transit by any medium capable of delivering a written record. 2. When the time limit provided for in article 89, paragraph 3 (e), has expired and the person concerned has been released, such a release is without prejudice to a subsequent arrest of the person in accordance with the provisions of article 89 or article 92. Rule 183 Possible temporary surrender Following the consultations referred to in article 89, paragraph 4, the requested State may temporarily surrender the person sought in accordance with conditions determined between the requested State and the Court. In such case the person shall be kept in custody during his or her presence before the Court and shall be transferred to the requested State once his or her presence before the Court is no longer required, at the latest when the proceedings have been completed. Rule 184 Arrangements for surrender 1. The requested State shall immediately inform the Registrar when the person sought by the Court is available for surrender. 2. The person shall be surrendered to the Court by the date and in the manner agreed upon between the authorities of the requested State and the Registrar. 3. If circumstances prevent the surrender of the person by the date agreed, the authorities of the requested State and the Registrar shall agree upon a new date and manner by which the person shall be surrendered. 4. The Registrar shall maintain contact with the authorities of the host State in relation to the arrangements for the surrender of the person to the Court.

rules of procedure and evidence

519

Rule 185 Release of a person from the custody of the Court other than upon completion of sentence 1. Subject to sub-rule 2, where a person surrendered to the Court is released from the custody of the Court because the Court does not have jurisdiction, the case is inadmissible under article 17, paragraph 1 (b), (c) or (d), the charges have not been confirmed under article 61, the person has been acquitted at trial or on appeal, or for any other reason, the Court shall, as soon as possible, make such arrangements as it considers appropriate for the transfer of the person, taking into account the views of the person, to a State which is obliged to receive him or her, to another State which agrees to receive him or her, or to a State which has requested his or her extradition with the consent of the original surrendering State. In this case, the host State shall facilitate the transfer in accordance with the agreement referred to in article 3, paragraph 2, and the related arrangements. 2. Where the Court has determined that the case is inadmissible under article 17, paragraph 1 (a), the Court shall make arrangements, as appropriate, for the transfer of the person to a State whose investigation or prosecution has formed the basis of the successful challenge to admissibility, unless the State that originally surrendered the person requests his or her return. Rule 186 Competing requests in the context of a challenge to the admissibility of the case In situations described in article 90, paragraph 8, the requested State shall provide the notification of its decision to the Prosecutor in order to enable him or her to act in accordance with article 19, paragraph 10. Section III Documents for arrest and surrender under articles 91 and 92 Rule 187 Translation of documents accompanying request for surrender For the purposes of article 67, paragraph 1 (a), and in accordance with rule 117, sub-rule 1, the request under article 91 shall be accompanied, as appropriate, by a translation of the warrant of arrest or of the judgement of conviction and by a translation of the text of any relevant provisions of the Statute, in a language that the person fully understands and speaks.

520

rules of procedure and evidence

Rule 188 Time limit for submission of documents after provisional arrest For the purposes of article 92, paragraph 3, the time limit for receipt by the requested State of the request for surrender and the documents supporting the request shall be 60 days from the date of the provisional arrest. Rule 189 Transmission of documents supporting the request When a person has consented to surrender in accordance with the provisions of article 92, paragraph 3, and the requested State proceeds to surrender the person to the Court, the Court shall not be required to provide the documents described in article 91 unless the requested State indicates otherwise. Section IV Cooperation under article 93 Rule 190 Instruction on self-incrimination accompanying request for witness When making a request under article 93, paragraph 1 (e), with respect to a witness, the Court shall annex an instruction, concerning rule 74 relating to self-incrimination, to be provided to the witness in question, in a language that the person fully understands and speaks. Rule 191 Assurance provided by the Court under article 93, paragraph 2 The Chamber dealing with the case, on its own motion or at the request of the Prosecutor, defence or witness or expert concerned, may decide, after taking into account the views of the Prosecutor and the witness or expert concerned, to provide the assurance described in article 93, paragraph 2. Rule 192 Transfer of a person in custody 1. Transfer of a person in custody to the Court in accordance with article 93, paragraph 7, shall be arranged by the national authorities concerned in liaison with the Registrar and the authorities of the host State.

rules of procedure and evidence

521

2. The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court. 3. The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber. 4. In accordance with article 93, paragraph 7 (b), when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person in custody to the requested State. Rule 193 Temporary transfer of the person from the State of enforcement 1. The Chamber that is considering the case may order the temporary transfer from the State of enforcement to the seat of the Court of any person sentenced by the Court whose testimony or other assistance is necessary to the Court. The provisions of article 93, paragraph 7, shall not apply. 2. The Registrar shall ensure the proper conduct of the transfer, in liaison with the authorities of the State of enforcement and the authorities of the host State. When the purposes of the transfer have been fulfilled, the Court shall return the sentenced person to the State of enforcement. 3. The person shall be kept in custody during his or her presence before the Court. The entire period of detention spent at the seat of the Court shall be deducted from the sentence remaining to be served. Rule 194 Cooperation requested from the Court 1. In accordance with article 93, paragraph 10, and consistent with article 96, mutatis mutandis, a State may transmit to the Court a request for cooperation or assistance to the Court, either in or accompanied by a translation into one of the working languages of the Court. 2. Requests described in sub-rule 1 are to be sent to the Registrar, which shall transmit them, as appropriate, either to the Prosecutor or to the Chamber concerned. 3. If protective measures within the meaning of article 68 have been adopted, the Prosecutor or Chamber, as appropriate, shall consider the views of the Chamber which ordered the measures as well as those of the relevant victim or witness, before deciding on the request. 4. If the request relates to documents or evidence as described in article 93, paragraph 10 (b) (ii), the Prosecutor or Chamber, as appropriate, shall obtain the written consent of the relevant State before proceeding with the request.

522

rules of procedure and evidence

5. When the Court decides to grant the request for cooperation or assistance from a State, the request shall be executed, insofar as possible, following any procedure outlined therein by the requesting State and permitting persons specified in the request to be present. Section V Cooperation under article 98 Rule 195 Provision of information 1. When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court. 2. The Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court. Section VI Rule of speciality under article 101 Rule 196 Provision of views on article 101, paragraph 1 A person surrendered to the Court may provide views on a perceived violation of the provisions of article 101, paragraph 1. Rule 197 Extension of the surrender When the Court has requested a waiver of the requirements of article 101, paragraph 1, the requested State may ask the Court to obtain and provide the views of the person surrendered to the Court.

rules of procedure and evidence

523

CHAPTER 12

ENFORCEMENT

Section I Role of States in enforcement of sentences of imprisonment and change in designation of State of enforcement under articles 103 and 104 Rule 198 Communications between the Court and States Unless the context otherwise requires, article 87 and rules 176 to 180 shall apply, as appropriate, to communications between the Court and a State on matters relating to enforcement of sentences. Rule 199 Organ responsible under Part 10 Unless provided otherwise in the Rules, the functions of the Court under Part 10 shall be exercised by the Presidency. Rule 200 List of States of enforcement 1. A list of States that have indicated their willingness to accept sentenced persons shall be established and maintained by the Registrar. 2. The Presidency shall not include a State on the list provided for in article 103, paragraph 1 (a), if it does not agree with the conditions that such a State attaches to its acceptance. The Presidency may request any additional information from that State prior to taking a decision. 3. A State that has attached conditions of acceptance may at any time withdraw such conditions. Any amendments or additions to such conditions shall be subject to confirmation by the Presidency. 4. A State may at any time inform the Registrar of its withdrawal from the list. Such withdrawal shall not affect the enforcement of the sentences in respect of persons that the State has already accepted. 5. The Court may enter bilateral arrangements with States with a view to establishing a framework for the acceptance of prisoners sentenced by the Court. Such arrangements shall be consistent with the Statute.

524

rules of procedure and evidence

Rule 201 Principles of equitable distribution Principles of equitable distribution for purposes of article 103, paragraph 3, shall include: (a) The principle of equitable geographical distribution; (b) The need to afford each State on the list an opportunity to receive sentenced persons; (c) The number of sentenced persons already received by that State and other States of enforcement; (d) Any other relevant factors. Rule 202 Timing of delivery of the sentenced person to the State of enforcement The delivery of a sentenced person from the Court to the designated State of enforcement shall not take place unless the decision on the conviction and the decision on the sentence have become final. Rule 203 Views of the sentenced person 1. The Presidency shall give notice in writing to the sentenced person that it is addressing the designation of a State of enforcement. The sentenced person shall, within such time limit as the Presidency shall prescribe, submit in writing his or her views on the question to the Presidency. 2. The Presidency may allow the sentenced person to make oral presentations. 3. The Presidency shall allow the sentenced person: (a) To be assisted, as appropriate, by a competent interpreter and to benefit from any translation necessary for the presentation of his or her views; (b) To be granted adequate time and facilities necessary to prepare for the presentation of his or her views. Rule 204 Information relating to designation When the Presidency notifies the designated State of its decision, it shall also transmit the following information and documents: (a) The name, nationality, date and place of birth of the sentenced person;

rules of procedure and evidence

525

(b) A copy of the final judgement of conviction and of the sentence imposed; (c) The length and commencement date of the sentence and the time remaining to be served; (d) After having heard the views of the sentenced person, any necessary information concerning the state of his or her health, including any medical treatment that he or she is receiving. Rule 205 Rejection of designation in a particular case Where a State in a particular case rejects the designation by the Presidency, the Presidency may designate another State. Rule 206 Delivery of the sentenced person to the State of enforcement 1. The Registrar shall inform the Prosecutor and the sentenced person of the State designated to enforce the sentence. 2. The sentenced person shall be delivered to the State of enforcement as soon as possible after the designated State of enforcement accepts. 3. The Registrar shall ensure the proper conduct of the delivery of the person in consultation with the authorities of the State of enforcement and the host State. Rule 207 Transit 1. No authorization is required if the sentenced person is transported by air and no landing is scheduled on the territory of the transit State. If an unscheduled landing occurs on the territory of the transit State, that State shall, to the extent possible under the procedure of national law, detain the sentenced person in custody until a request for transit as provided in sub-rule 2 or a request under article 89, paragraph 1, or article 92 is received. 2. To the extent possible under the procedure of national law, a State Party shall authorize the transit of a sentenced person through its territory and the provisions of article 89, paragraph 3 (b) and (c), and articles 105 and 108 and any rules relating thereto shall, as appropriate, apply. A copy of the final judgement of conviction and of the sentence imposed shall be attached to such request for transit.

526

rules of procedure and evidence

Rule 208 Costs 1. The ordinary costs for the enforcement of the sentence in the territory of the State of enforcement shall be borne by that State. 2. Other costs, including those for the transport of the sentenced person and those referred to in article 100, paragraph 1 (c), (d) and (e), shall be borne by the Court. Rule 209 Change in designation of State of enforcement 1. The Presidency, acting on its own motion or at the request of the sentenced person or the Prosecutor, may at any time act in accordance with article 104, paragraph 1. 2. The request of the sentenced person or of the Prosecutor shall be made in writing and shall set out the grounds upon which the transfer is sought. Rule 210 Procedure for change in the designation of a State of enforcement 1. Before deciding to change the designation of a State of enforcement, the Presidency may: (a) Request views from the State of enforcement; (b) Consider written or oral presentations of the sentenced person and the Prosecutor; (c) Consider written or oral expert opinion concerning, inter alia, the sentenced person; (d) Obtain any other relevant information from any reliable sources. 2. The provisions of rule 203, sub-rule 3, shall apply, as appropriate. 3. If the Presidency refuses to change the designation of the State of enforcement, it shall, as soon as possible, inform the sentenced person, the Prosecutor and the Registrar of its decision and of the reasons therefor. It shall also inform the State of enforcement. Section II Enforcement, supervision and transfer under articles 105, 106 and 107 Rule 211 Supervision of enforcement of sentences and conditions of imprisonment 1. In order to supervise the enforcement of sentences of imprisonment, the Presidency:

rules of procedure and evidence

527

(a) Shall, in consultation with the State of enforcement, ensure that in establishing appropriate arrangements for the exercise by any sentenced person of his or her right to communicate with the Court about the conditions of imprisonment, the provisions of article 106, paragraph 3, shall be respected; (b) May, when necessary, request any information, report or expert opinion from the State of enforcement or from any reliable sources; (c) May, where appropriate, delegate a judge of the Court or a member of the staff of the Court who will be responsible, after notifying the State of enforcement, for meeting the sentenced person and hearing his or her views, without the presence of national authorities; (d) May, where appropriate, give the State of enforcement an opportunity to comment on the views expressed by the sentenced person under sub-rule 1 (c). 2. When a sentenced person is eligible for a prison programme or benefit available under the domestic law of the State of enforcement which may entail some activity outside the prison facility, the State of enforcement shall communicate that fact to the Presidency, together with any relevant information or observation, to enable the Court to exercise its supervisory function. Rule 212 Information on location of the person for enforcement of fines, forfeitures or reparation measures For the purpose of enforcement of fines and forfeiture measures and of reparation measures ordered by the Court, the Presidency may, at any time or at least 30 days before the scheduled completion of the sentence served by the sentenced person, request the State of enforcement to transmit to it the relevant information concerning the intention of that State to authorize the person to remain in its territory or the location where it intends to transfer the person. Rule 213 Procedure for article 107, paragraph 3 With respect to article 107, paragraph 3, the procedure set out in rules 214 and 215 shall apply, as appropriate.

528

rules of procedure and evidence

Section III Limitation on the prosecution or punishment of other offences under article 108 Rule 214 Request to prosecute or enforce a sentence for prior conduct 1. For the application of article 108, when the State of enforcement wishes to prosecute or enforce a sentence against the sentenced person for any conduct engaged in prior to that person’s transfer, it shall notify its intention to the Presidency and transmit to it the following documents: (a) A statement of the facts of the case and their legal characterization; (b) A copy of any applicable legal provisions, including those concerning the statute of limitation and the applicable penalties; (c) A copy of any sentence, warrant of arrest or other document having the same force, or of any other legal writ which the State intends to enforce; (d) A protocol containing views of the sentenced person obtained after the person has been informed sufficiently about the proceedings. 2. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request. 3. The Presidency may in all cases request any document or additional information from the State of enforcement or the State requesting extradition. 4. If the person was surrendered to the Court by a State other than the State of enforcement or the State seeking extradition, the Presidency shall consult with the State that surrendered the person and take into account any views expressed by that State. 5. Any information or documents transmitted to the Presidency under sub-rules 1 to 4 shall be transmitted to the Prosecutor, who may comment. 6. The Presidency may decide to conduct a hearing. Rule 215 Decision on request to prosecute or enforce a sentence 1. The Presidency shall make a determination as soon as possible. This determination shall be notified to all those who have participated in the proceedings. 2. If the request submitted under sub-rules 1 or 2 of rule 214 concerns the enforcement of a sentence, the sentenced person may serve that sen-

rules of procedure and evidence

529

tence in the State designated by the Court to enforce the sentence pronounced by it or be extradited to a third State only after having served the full sentence pronounced by the Court, subject to the provisions of article 110. 3. The Presidency may authorize the temporary extradition of the sentenced person to a third State for prosecution only if it has obtained assurances which it deems to be sufficient that the sentenced person will be kept in custody in the third State and transferred back to the State responsible for enforcement of the sentence pronounced by the Court, after the prosecution. Rule 216 Information on enforcement The Presidency shall request the State of enforcement to inform it of any important event concerning the sentenced person, and of any prosecution of that person for events subsequent to his or her transfer. Section IV Enforcement of fines, forfeiture measures and reparation orders Rule 217 Cooperation and measures for enforcement of fines, forfeiture or reparation orders For the enforcement of fines, forfeiture or reparation orders, the Presidency shall, as appropriate, seek cooperation and measures for enforcement in accordance with Part 9, as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection. The Presidency shall, as appropriate, inform the State of any third-party claims or of the fact that no claim was presented by a person who received notification of any proceedings conducted pursuant to article 75. Rule 218 Orders for forfeiture and reparations 1. In order to enable States to give effect to an order for forfeiture, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) The proceeds, property and assets that have been ordered by the Court to be forfeited; and

530

rules of procedure and evidence

(c) That if the State Party is unable to give effect to the order for forfeiture in relation to the specified proceeds, property or assets, it shall take measures to recover the value of the same. 2. In the request for cooperation and measures for enforcement, the Court shall also provide available information as to the location of the proceeds, property and assets that are covered by the order for forfeiture. 3. In order to enable States to give effect to an order for reparations, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and (c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered. 4. Where the Court awards reparations on an individual basis, a copy of the reparation order shall be transmitted to the victim concerned. Rule 219 Non-modification of orders for reparation The Presidency shall, when transmitting copies of orders for reparations to States Parties under rule 217, inform them that, in giving effect to an order for reparations, the national authorities shall not modify the reparations specified by the Court, the scope or the extent of any damage, loss or injury determined by the Court or the principles stated in the order, and shall facilitate the enforcement of such order. Rule 220 Non-modification of judgements in which fines were imposed When transmitting copies of judgements in which fines were imposed to States Parties for the purpose of enforcement in accordance with article 109 and rule 217, the Presidency shall inform them that in enforcing the fines imposed, national authorities shall not modify them. Rule 221 Decision on disposition or allocation of property or assets 1. The Presidency shall, after having consulted, as appropriate, with the Prosecutor, the sentenced person, the victims or their legal representatives, the national authorities of the State of enforcement or any relevant third

rules of procedure and evidence

531

party, or representatives of the Trust Fund provided for in article 79, decide on all matters related to the disposition or allocation of property or assets realized through enforcement of an order of the Court. 2. In all cases, when the Presidency decides on the disposition or allocation of property or assets belonging to the sentenced person, it shall give priority to the enforcement of measures concerning reparations to victims. Rule 222 Assistance for service or any other measure The Presidency shall assist the State in the enforcement of fines, forfeiture or reparation orders, as requested, with the service of any relevant notification on the sentenced person or any other relevant persons, or the carrying out of any other measures necessary for the enforcement of the order under the procedure of the national law of the enforcement State. Section V Review concerning reduction of sentence under article 110 Rule 223 Criteria for review concerning reduction of sentence In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria: (a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime; (b) The prospect of the resocialization and successful resettlement of the sentenced person; (c) Whether the early release of the sentenced person would give rise to significant social instability; (d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release; (e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age. Rule 224 Procedure for review concerning reduction of sentence 1. For the application of article 110, paragraph 3, three judges of the Appeals Chamber appointed by that Chamber shall conduct a hearing, unless they decide otherwise in a particular case, for exceptional reasons.

532

rules of procedure and evidence

The hearing shall be conducted with the sentenced person, who may be assisted by his or her counsel, with interpretation, as may be required. Those three judges shall invite the Prosecutor, the State of enforcement of any penalty under article 77 or any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings, to participate in the hearing or to submit written observations. Under exceptional circumstances, this hearing may be conducted by way of a videoconference or in the State of enforcement by a judge delegated by the Appeals Chamber. 2. The same three judges shall communicate the decision and the reasons for it to all those who participated in the review proceedings as soon as possible. 3. For the application of article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall review the question of reduction of sentence every three years, unless it establishes a shorter interval in its decision taken pursuant to article 110, paragraph 3. In case of a significant change in circumstances, those three judges may permit the sentenced person to apply for a review within the three-year period or such shorter period as may have been set by the three judges. 4. For any review under article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall invite written representations from the sentenced person or his or her counsel, the Prosecutor, the State of enforcement of any penalty under article 77 and any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings. The three judges may also decide to hold a hearing. 5. The decision and the reasons for it shall be communicated to all those who participated in the review proceedings as soon as possible. Section VI Escape Rule 225 Measures under article 111 in the event of escape 1. If the sentenced person has escaped, the State of enforcement shall, as soon as possible, advise the Registrar by any medium capable of delivering a written record. The Presidency shall then proceed in accordance with Part 9. 2. However, if the State in which the sentenced person is located agrees to surrender him or her to the State of enforcement, pursuant to either international agreements or its national legislation, the State of enforce-

rules of procedure and evidence

533

ment shall so advise the Registrar in writing. The person shall be surrendered to the State of enforcement as soon as possible, if necessary in consultation with the Registrar, who shall provide all necessary assistance, including, if necessary, the presentation of requests for transit to the States concerned, in accordance with rule 207. The costs associated with the surrender of the sentenced person shall be borne by the Court if no State assumes responsibility for them. 3. If the sentenced person is surrendered to the Court pursuant to Part 9, the Court shall transfer him or her to the State of enforcement. Nevertheless, the Presidency may, acting on its own motion or at the request of the Prosecutor or of the initial State of enforcement and in accordance with article 103 and rules 203 to 206, designate another State, including the State to the territory of which the sentenced person has fled. 4. In all cases, the entire period of detention in the territory of the State in which the sentenced person was in custody after his or her escape and, where sub-rule 3 is applicable, the period of detention at the seat of the Court following the surrender of the sentenced person from the State in which he or she was located shall be deducted from the sentence remaining to be served.

BIBLIOGRAPHY

Books John Andrews and Michael Hirst, ANDREWS & HIRST ON CRIMINAL EVIDENCE, London: Sweet and Maxwell (1997). Yves Beigbeder, JUDGING WAR CRIMINALS, THE POLITICS OF INTERNATIONAL JUSTICE, New York: St Martin’s Press (1999). Morten Bergsmo ed., HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE DOWNTRODDEN, Essays in Honour of Asbjorn Eide, Martinus Nijhoff Publishers (2003). Hans Bevers & Chantal Joubert (eds), AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, Proceedings of the Conference held in The Hague, 1–2 November 1999, Series Criminal Sciences, Amsterdam: THELA THESIS (2000). Antonio Cassese, INTERNATIONAL CRIMINAL LAW, Oxford University Press (2003). Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, 2 Volumes, Oxford University Press (2002). Chistopher Gane and Mark Mackarel (eds.), HUMAN RIGHTS AND THE ADMINISTRATION OF JUSTICE, Kluwer Law International (1997). Centre for Human Rights, HUMAN RIGHTS AND PRE-TRIAL DETENTION, A Handbook on International Standards Relating to Pre-trial Detention, United Nations (1994). Committee of American Law Schools ed., SELECTED ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY, (1907–1909). Yoram Dinstein & Mala Tabori (eds), WAR CRIMES IN INTERNATIONAL LAW, Martinus Nijhoff Publishers (1996). John E.D. Dugard and Christine Van den Wyngaert (eds.), INTERNATIONAL CRIMINAL LAW AND PROCEDURE, Aldershot; Brookfield, VT, (1996). JUDICIAL REPORTS, INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Kluwer Law International (1994–1997). Richard Holbrooke, TO END A WAR, Random House (1998). Ahlbrecht Heiko, GESCHICHTE DER VÖLKERRECHTLICHEN STRAFGERICHTSBARKEIT IM 20. JAHRHUNDERT: UNTER BESONDERER BERÜCKSICHTUNG DER VÖLKERRECHTLICHEN STRAFTATBESTÄNDE UND DER BEMÜHUNGEN UM EINEN STÄNDIGEN INTERNATIONALEN STRAF-GERICHTSHOF, BadenBaden: Nomos (1999). Barton L. Ingraham, The STRUCTURE OF CRIMINAL PROCEDURE: LAWS AND PRACTICE OF FRANCE, THE SOVIET UNION AND THE UNITED STATES, Connecticut, Greenwood Press (1987). John R.W.D. Jones, THE PRACTICE OF THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA, Transnational Publishers (1998). Gabrielle Kirk McDonald & Olivia Swaak-Goldman (eds.), in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary, Gabrielle Kirk McDonald & Olivia Swaak-Goldman (eds.), Vol. 1, Kluwer Law International (2000). Geert-Jan Alexander Knoops, DEFENCES IN INTERNATIONAL CRIMINAL LAW, International and Contemporary Criminal Law Series, Transnational Publishers (2001). ——, SURRENDERING TO INTERNATIONAL CRIMINAL COURTS: Contemporary Practices and Procedures, International and Contemporary Criminal Law Series, Transnational Publishers (2002).

536

bibliography

Flavia Lattanzi & Elena Sciso (eds.), DAI TRIBUNALI PENALI INTARNAZIONALI AD HOC A UNA CORTE PARMANANTE, Napoli: Editoriale Scientifica (1996). Flavia Lattanzi and William A. Schabas (eds.), ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Vol. I, Sirente Pub. (1999). Roy S. Lee ed., THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES NEGOCIATIONS AND RESULTS, Kluwer Law International (1999). —— ed., THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Transnational Publishers (2001). Richard May and Marieke Wierda, INTERNATIONAL CRIMINAL EVIDENCE, Transnational Publishers (2002). Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen eds., ESSAYS ON ICTY PROCEDURE AND EVIDENCE in Honour of Gabrielle Kirk McDonald, Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen eds., Kluwer Law International (2001). Timothy L.H. McCormack and Gerry J. Simpson (eds.) THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES, Kluwer Law International (1997). Tatjana Maikowski, STAATLICHE KOOPERATIONSPFLICHTEN GEGENÜBER DEM INTERNATIONALEN STRAFGERICHTSHOF, Berliner Wissenschafs-Verlag (2002). Jörg Meßner, DIE ZUSAMMENARBEIT MIT DEM INTERNATIONALEN STRAFGERICHTSHOF NACH DEM RÖMISCHEN STATUT, C.H. Beck; Schulthess (2003). Richard H. Minear, VICTOR’S JUSTICE, THE TOKYO WAR CRIMES TRIAL, Princeton University Press (1971). Virginia Morris, Michael P. Sharf, AN INSIDER’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, 2 Volumes, Transnational Publishers (1995). ——, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, 2 Volumes, Transnational Publishers (1998). Ilias Bantekas and Susan Nash, INTERNATIONAL CRIMINAL LAW, Cavendish Publishing (2003). Jordan J. Paust, M. Cherif Bassiouni, Sharon A. Williams, Michael Scharf, Jimmy Gurulé, & Bruce Zagaris (eds.), INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS, Carolina Academic Press (1996). Mauro Politi and Giuseppe Nesi (eds.), THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT—A CHALLENGE TO IMPUNITY, Ashgate-Darmough Pub. (2001). Philip L. Reichel, COMPARATIVE CRIMINAL JUSTICE SYSTEMS—A TOPICAL APPROACH, New Jersey, Prentice Hall Career & Technology Pub. (1994). Nigel Rodley, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW, Clarendon Press (1987). Bernard V. Röling and Antonio Cassese, THE TOKYO TRIAL AND BEYOND: REFLECTIONS OF A PEACEMONGER, Polity Press (1993). Bernard V. Röling & C.F. Rüter (eds.), 1 THE TOKYO JUDGEMENT, THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (I.M.T.F.E.), Amsterdam: University Press (1977). Rodney Dixon, Karim Khan and Richard May eds., ARCHBOLD INTERNATIONAL CRIMINAL COURTS: PRACTICE, PROCEDURE AND EVIDENCE, Sweet & Maxwell (2003). Clayton C. Ruby, SENTENCING, Buttersworth (4th ed.), 1994. TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL. Vol. 1, Nuremberg, November 14, 1945–October 1, 1946 (1947). Christoph J.M. Safferling, TOWARDS AN INTERNATIONAL CRIMINAL PROCEDURE, Oxford University Press (2001). Georg Schwarzenberger, INTERNATIONAL LAW AS APPLIED BY INTERNATIONAL

bibliography

537

COURTS AND TRIBUNALS, Vol. II, THE LAW OF ARMED CONFLICT, Stevens & Sons, London (1968). Otto Triffterer ed., COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Nomos Verlagsgesellschaft (1999). ——, DOGMATISCHE UNTERSUCHUNGEN ZUR ENTWICKLUNG DES MATERIELLEN VÖLKERSTRAFRECHTS SEIT NÜRNBERG, Freiburg (1966). Telford Taylor, THE ANATOMY OF THE NUREMBERG TRIALS, A PERSONAL MEMOIR, New York: Alfred E. Knopf (1992). Steve Uglow, CRIMINAL JUSTICE, London, Sweet & Maxwell Publishers (1995). Salvatore Zappalà, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS, Oxford University Press (2003).

Articles Natasha A. Affolder, Tadic, The Anonymous Witness and the Sources of International Procedural Law, 19 Mich. J. Int’l L. (1998). Jose E. Alvarez, Rush to Closure: Lessons of the Tadic Judgment, 96 Mich. L. Rev. (1998). Kai Ambos, Other Grounds For Excluding Criminal Responsibility, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, International Criminal Procedure: Adversarial, “Inquisitorial” or Mixed? Int’l Criminal Law Review (2003 No. 3). ——, Other Grounds for Excluding Criminal Responsibility, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Individual Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Superior Responsibility, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum (1999). Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L. Rev. 1201 (1998). ——, Harmonic Coverage? Constitutional Criminal Procedure in an International Context, 75 Ind. L.J. (2000). Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 University of Pennsylvania Law Review (2002). Louise Arbour, The Development of a Coherent System of Rules of International Criminal Procedure and Evidence Before the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda, in COMPARATIVE JUSTICE SYSTEMS, Proceedings of the International Conference for the 25th Anniversary of the International Institute of Higher Studies in Criminal Sciences, Siracusa (Italy 16–20 December, 1997), 17 NOUVELLES ETUDES PENALES (1998). ——, The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results, Symposium on War Crimes and War Crimes Tribunals: Past, Present, and Future, in 3 HOFSTRA L. & POL’Y SYMP. (1999). Robert John Araujo, International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the “Priest-Penitent” Privilege Under International Law, 15 Am. U. Int’l L. Rev. (2000). Hervé Ascensio, The Rules of Procedure and Evidence of the ICTY, 9 Leiden Journal of International Law (1996). Mohamed Badar, From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 San Diego International Law Journal (2004). Ilias Bantekas, The Contemporary Law of Superior Responsibility, 93 AJIL ( July 1999). M. Cherif Bassouini, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Virginia Journal of International Law Association (Fall 2001).

538

bibliography

——, An Appraisal of the Growth and Developing Trends of International Criminal Law, in INTERNATIONAL CRIMINAL LAW AND PROCEDURE, John E.D. Dugard and Christine Van den Wyngaert (eds.) (1996). ——, Observations Concerning the 1997–98 Preparatory Committee’s Work, 13 NOUVELLES ÉTUDES PÉNALES (1997). Lynne Mirian Baum, Pursuing Justice in a Climate of Moral Outrage: An Evaluation of the Rights of the Accused in the Rome Statute of the International Criminal Court, 19 Wisconsin In’l Law J., (Spring 2001). Brian Beller, A Comparative Study of Exclusion of Evidence on the Grounds of the Means by which it was Obtained, Memorandum for the Office of the Prosecutor, Case Western Reserve University School of Law, International War Crimes Project (Spring 2003). Stuart Beresford & Hafida Lahiouel, The Right to be Defended in Person or through Legal Assistance and the International Criminal Court, 13 Leiden Journal of International Law (2000). Morten Bergsmo and Pieter Kruger, Initiation of an Investigation, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Duties and Powers of the Prosecutor, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Morten Bergsmo, Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the International Criminal Court, and Their Possible Implications for the Relationship between the Court and the Security Council, 69 Nordic Journal of International Law, no. 1 (2000). Stuart Beresford, Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals, 96 A.J.I.L. (2002). Emily Ann Berman, In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals, 80 N. Y. U. L. Rev. (April 2005). Sylvia de Bertodano, What Price Defence? Resourcing The Defence At The ICTY, ICJ (2004). Rupa Bhattacharyya, Establishing a Rule-of-Law International Criminal Justice System, 31 Texas International Law Journal (Winter 1996). Stephanos Bibas and Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. (2004). Gilbert Bitti, Functions and Powers of the Trial Chamber, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Kristen Boon, Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent, 32 Columbia Human Rights Law Review (Summer 2001). Machteld Boot, Crimes Against Humanity, Paragraph 2, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Henri Bosly, Admission of Guilt Before the ICC and in Continental Systems, ICJ (2004). Michael Bothe, War Crimes, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), Oxford University Press (2002). Stéphane Bourgon, Jurisdiction Ratione Loci, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Jurisdiction Ratione Temporis, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Procedural Problems Hindering Expeditious and Fair Justice, ICJ (2004). Andrew Bowers, A Concession to Humanity in the Killing of Innocents—Validating the Defences of Duress and Superior Orders in International Law; 15 Windsor Review of Legal and Social Issues (March 2003). Helen Brady, Evidence in the ICC Statute, in ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Vol. I, Flavia Lattanzi and William A. Schabas eds., Sirente Pub. (1999). ——, Appeal and Revision, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS

bibliography

539

OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). Helen Brady and Mark Jennings, Appeal and Revision, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES NEGOCIATIONS AND RESULTS, Roy S. Lee ed., Kluwer Law International (1999). Bruce Broomhall, The International Criminal Court: A Checklist for National Implementation, in ICC RATIFICATION AND NATIONAL IMPLEMENTING LEGISLATION, ERES, DePaul University (1999). ——, Nullum Crimen sine Lege, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Daniel Brown, The International Criminal Court and Trial in Absentia, 24 Brook. J. Int’l Law (1998–1999). Antoine Buchet, Effectiveness and Independence in the Implementation of the Rights of the Defence Before the ICC, in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, Proceedings of the Conference held in The Hague, 1–2 November 1999, Series Criminal Sciences, Amsterdam: THELA THESIS (2000). Michele Caianiello and Giulio Illuminati, From the International Criminal Tribunal for the Former Yugoslavia to the International Criminal Court, 26 N.C.J. Int’l L. & Com. Reg. (Spring 2001). Lucius Caflish, The Rome Statute and The European Convention on Human Rights, 23 HRLJ (2002). Antonio Cassese, Genocide, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Crimes Against Humanity, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Jonathan I. Charney, Editorial Comments: International Criminal Law and the Role of Domestic Courts, 95 The American Society of International Law ( January 2001). Trevor P. Chimimba, Establishing an Enforcement Regime, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES NEGOCIATIONS AND RESULTS, Roy S. Lee ed., Kluwer Law International (2000). Christine Chinkin, Due Process and Witness Anonymity, 90 AJIL (1997). Robert Christensen, Getting to Peace by Reconciling Notions of Justice: The Importance of Considering Discrepancies Between Civil and Common Legal Systems in the Formation of the International Criminal Court, 6 UCLA J. Int’l L. & For. Aff. (Fall 2001/Winter 2002). Annalisa Ciampi, The Obligation to Cooperate, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Other Forms of Cooperation, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Roger S. Clark, Supervision of Enforcement of Sentences and Conditions of Imprisonment, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Transfer of the Person upon Completion of the Sentence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Roger S. Clark and Otto Triffterer, Exclusion of Jurisdiction over Persons under Eighteen, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Theresa Marie Clark, Transplant Justice?: The Efficacy of a Purely Common Law Concept in the International Criminal Forum, 9 Buff. Hum. Rts. L. Rev. (2003) Neil Cohen, Trial in Absentia Re-Examined, 40 Tenn. L. Rev. (1973). Marjorie Cohn, Rounding Up Unusual Suspects: Human Rights in the Wake of 9/11, 25 Thomas Jefferson Law Review (2003). Michael Cottier, Preliminary Remarks on Paragraph 2(b) (xvii) –(xx): Prohibited weapons, Drafting

540

bibliography

History, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Michael Cottier, William J. Fenrick, Patricia Viseur Sellers and Andreas Zimmerman, War Crimes, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Vincent M. Creta, The Search for Justice in the Former Yugoslavia and Beyond: Analyzing the Rights of the Accused Under the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 20 Houston Journal of International Law (1998). Requel Cross, The Relevance of the Eichmann, Barbie and Finta Trials for the ICTR, Memorandum for the Office of the Prosecutor, Case Western Reserve University School of Law, International War Crimes Project, International Criminal Tribunal for Rwanda (Spring 2003). Mirjan Damaska, The Shadow Side of Command Responsibility, 49 American Journal of Comparative Law (Summer 2001). Anthony D’Amato, PERSPECTIVE: Defending a Person Charged with Genocide, 1 Chi. J. Int’l Law (2000). Zsuzsanna Deen-Racsmany, The Nationality of the Offender and the Jurisdiction of the International Criminal Court, 95 AJIL, ( July 2001). Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. (1997). Cristian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 Va. L. Rev. (2001). Developments in the Law—International Criminal Law, III. Fair Trials and the Role of International Criminal Defence, 114 Harv. L. Rev. (2001). Cristian DeFrancia, Due Process in International Criminal Courts: Why Procedure Matters, 87 Virginia Law Review Association (November 2001). Dorothee de Sampayo Garrido-Nijgh, The Defence Unit of the Registry of the ICTY: Personal Recollections, in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, Hans Bevers and Chantal Joubert eds., Proceedings of the Conference held in The Hague, 1–2 November, Series Criminal Sciences, Amsterdam: THELA THESIS (2000). Paul J.I.M. De Waart, From ‘Kidnapped’ Witness to Released Accused ‘for Humanitarian Reasons’: The Case of the Late General Djordje Djukic, 9 LJIL (1966). Yoram Dinstein, Defences, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., Vol. 1, Kluwer Law International (2000). Rodney Dixon, Crimes Against Humanity, Article 7, Paragraph 1, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Rodney Dixon and Helen Duffy, Protection of National Security Information, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Gerard Dive, The Registry, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). David Donat-Cattin, Protection of Victims and Witnesses and their Participation in the Proceedings, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U.L. Rev. (2000). Helen Duffy, National Constitution Compatibility and the International Criminal Court; 11 Duke Journal of Comparative and International Law (Fall/Winter 2001). George Edwards, International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy, 26 Yale Journal of International Law (Summer 2001). Rosa Ehrenreich Brooks, Law in the Heart of Darkness: Atrocity & Duress, 43 Va. J. Int’l L. (2003).

bibliography

541

Bruce J. Einhorn, Arthur Sinai, Paul Hoffman and Kitty Felde, The Prosecution of War Criminals and Violators of Human Rights in the United States, 19 Whittier L. Rev. (1997). Mark S. Ellis, The Evolution of Defence Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia (The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal for the Former Yugoslavia), 37 New Eng. L. Rev. (Summer 2003). Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Michigan Journal of International Law (Summer 2002). Valerie Epps, The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Soldier’s Obligation to Die when Ordered to Shoot Civilians or Face Death Himself; 37 New Eng. L. Rev. (Summer 2003). ——, Symposium: The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Soldier’s Obligation to Die When Ordered to Shoot Civilians or Face Death Himself, 37 New Eng. L. Rev. (2003). Albin Eser, Mental Elements—Mistake of Fact and Mistake of Law, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Grounds for Excluding Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Individual Criminal Responsibility, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Defences in War Crime Trials, in WAR CRIMES IN INTERNATIONAL LAW, Yoram Dinstein & Mala Tabori (eds.) Martinus Nijhoff Publishers (1996). Kellye L. Fabian, Note and Comment: Proof and Consequences: An Analysis of the Tadic & Akayesu Trials, 49 DePaul L. Rev. (2000). Megan A. Fairlie, Due Process Erosion: The Diminution of Live Testimony at the ICTY, 34 Cal. W. Int’l L.J. (Fall 2003). Rolf Einar Fife, Applicable Penalties, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Non-Prejudice to National Application of Penalties and National Laws, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Fatema E. Fallahnejad Burkey, The Prosecutor v. Aleksovsky, 30 May 2001, Judgement on Appeal by Anto Nobilo Against Finding of Contempt: A Critical Analysis of the ICTY Appeals Chamber’s Abandonment of Witness Protection Measures, 82 Wash. U. L. Q. (Spring 2004). Joseph Falvey, United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, 19 Fordham International Law Journal (1995). William J. Fenrick, Responsibility of Commanders and Other Superiors, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Benjamin B. Ferencz, Von Nürnberg nach Rom: Auf dem Weg zu einem Internationalen Strafgerichtshof, Humanitäres Völkerrecht (Heft 2/1998). ——, The Crime of Aggression, in OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary, Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., Vol. 1, Kluwer Law International (2000). Mark Findlay, Synthesis in Trial Procedures?—The Experience of International Criminal Tribunals, 50.1 International and Comparative Law Quarterly ( January 2001). Hakan Friman, Investigation and Prosecution, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). Micaela Frulli, Jurisdiction Ratione Personae, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002).

542

bibliography

Paola Gaeta, Official Capacity and Immunities, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Giorgio Gaja, The Long Journey Towards Repressing Aggression, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Kenneth Gallant, The Role and Powers of Defence Counsel in the Rome Statute of the International Criminal Court, 34 International Lawyer (Spring 2000). Steven Glickman, Victims’ Justice: Legitimizing the Sentencing Regime of the International Criminal Court, 43 Colum. J. Transnat’l L. (2004). Richard Goldstone, International Jurisdiction and Prosecutorial Crimes, 47 Cleveland State Law Review (1999). Ameer F. Gopalani, The International Standard of Direct and Public Incitement to Commit Genocide: An Obstacle to U.S. Ratification of the International Criminal Court Statute? 32 California Western International Law Journal (Fall 2001). Emanuel Gross, Trying Terrorists—Justification for Differing Trial Rules: The Balance Between Security Considerations and Human Rights, 13 Indiana International & Comparative Law Review (2002). Elise Groulx, A Strong Defence Before the International Criminal Court, in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, Hans Bevers and Chantal Joubert eds., Proceedings of the Conference held in The Hague, 1–2 November 1999 (2000). Fabricio Guariglia, Presumption of Innocence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Gabriel Halevi, Directions of the Development in the Criminal Judicial Justice and in Evidence Law in Israel, 4 Kiryat HaMishpat Law Review (2004) (in Hebrew). Christopher K. Hall, Rights of Persons during an Investigation, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Challenges to the Jurisdiction of the Court, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Christopher K. Hall, Crimes Against Humanity—The Different Paragraphs, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. (1992). Anna M. Houghton, Balancing of the Rights of the Accused Against the Rights of a Witness in Regard to Anonymous Testimony, Memoranda for the Office of the Prosecutor, Case Western Reserve University School of Law (December 2001). Matthew Happold, Excluding Children From Refugee Status: Child Soldiers and Article 1F of the Refugee Convention, 17 American University International Law Review (2002). Frederik Harhoff and Phakiso Mochochoko, International Cooperation and Judicial Assistance, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES NEGOCIATIONS AND RESULTS, Roy S. Lee ed., Kluwer Law International (1999). Frederik Harhoff and Phakiso Mochochoko, International Cooperation and Judicial Assistance, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). Ralph Henham, The Philosophical Foundations of International Sentencing, 1 J. of Int’l Criminal Justice (2003). John T. Holmes, Jurisdiction and Admissibility, THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). ——, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF THE

bibliography

543

INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Todd Howland and William Calathes, The U.N.’s International Criminal Tribunal, Is It Justice or Jingoism for Rwanda? A Call for Transformation, 39 Va. J. Int’l L. (1998). Kyron Huigens, Rethinking the Penalty Phase, 32 Ariz. St. L.J. (2000). Phyllis Hwang, Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court, 22 Fordham International Law Journal (December 1998). James Insco, Defence of Superior Orders Before Military Commissions, 13 Duke Journal of Comparative & International Law (Spring 2003). Sanja Kutnjak Ivkovic, Justice by the International Criminal Tribunal for the Former Yugoslavia, 37 Stan. J. Int’l L. (2001). Robert H. Jackson, Nuremberg in Retrospect, 27 Can. B. Rev. (1949). Mark Jennings, Determination of the Sentence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Scott T. Johnson, On the Road to Disaster: the Rights of the Accused and the International Criminal Tribunal for the Former Yugoslavia, 10 International Legal Perspectives (1998). John R.W.D. Jones, Protection of Victims and Witnesses, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). John R.W.D. Jones, Claire Carlton-Hanciles, Haddijatou Kah-Jallow, Sam Scratch, and Ibrahim Yillah, The Special Court For Sierra Leone —A Defence Perspective, ICJ 2.1(211). Claude Jorda, and Jérôme de Hemptinne, The Status and Role of the Victim, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Claude Jorda, The International Criminal Tribunal for the Former Yugoslavia: Its Functioning and Future Prospects, in Symposium on War Crimes and War Crimes Tribunals: Past, Present, and Future, in 3 HOFSTRA L. & POL’Y SYMP. (1999). Claude Jorda and Jérôme de Hemptienne, Un Nouveau Statut pour l’Accusé dans la Procédure du Tribunal Pénal International pour l’ex-Yougoslavie, in ESSAYS ON ICTY PROCEDURE AND EVIDENCE in Honour of Gabrielle Kirk McDonald, Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen, eds., Kluwer Law International (2001). Nina H.B. Jorgensen, The Right of the Accused to Self-Representation Before International Criminal Tribunals, 98 A.J.I.L. (2004). Adolphus G. Karibi-Whyte, Appeal Procedures and Practices, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary, Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., Vol. 1, Kluwer Law International (2000). Jacob Katz Cogan, International Criminal Courts and Fair Trials: Difficulties and Prospects, 27 Yale J. Int’l L. (2002). Andrew N. Keller, Punishment for Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR, 12 Ind. Int’l & Comp. L. Rev. 53 (2001). Maria Kelt, and Herman von Hebel, General Principles of Criminal Law and the Elements of Crime, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). Karim Khan, Initial Proceedings before the Court, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Gabrielle Kirk McDonald, Trial Procedures and Practices, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary, Gabrielle Kirk McDonald & Olivia Swaak-Goldman (eds.), Vol. 1, Kluwer Law International (2000). Gabrielle Kirk McDonald, The International Criminal Tribunal for Former Yugoslavia, 13 American University International Law Review (1998).

544

bibliography

Andre Klip, Obtaining Evidence Abroad, in AN INDEPENDENT DEFENCE BEFORE THE INTERNATIONAL CRIMINAL COURT, Hans Bevers and Chantal Joubert eds., Proceedings of the Conference held in The Hague, 1–2 November 1999 (2000). Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches with Special Reference to the American and German Legal Systems, Studies and Materials on the Settlement of International Disputes, Vol. 3, Kluwer Law International (1998). Claus Kress and Goran Sluiter Imprisonment, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Claus Kress, Die Kristallisation eines Allgemeinen Teils des Völkerstrafrechts: Die Allgemeinen Prinzipien des Strafrechts im Statut des Internationalen Strafgerichtshofs, HuV-I 12 (1999). ——, SYMPOSIUM—The Procedural Law of The International Criminal Court In Outline: Anatomy of a Unique Compromise, 1.3 Journal of International Criminal Justice (December 2003). Claus Kress, Kimberly Prost, Angelika Schlunck, Peter Wilkitzki, International Cooperation and Judicial Assistance: Preliminary Remarks in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Claus Kress, General Obligation to Cooperate, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Claus Kress, Kimberly Prost, Requests for Cooperation: General Provisions, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Peter Krug, The Emerging Mental Incapacity Defence in International Criminal Law: Some Initial Questions of Implementation, 94 AJIL (April 2000). Susan Lamb, Nullum Crimen, Nulla Poena sine Lege in International Criminal Law, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard International Law Journal (2004). Anne-Marie La Rosa, Réflexions sur l’Apport du Tribunal Pénal pour l’Ex-Yougoslavie au Droit à un Procès Equitable, R.G.D.I.P. (1997 # 4). Anne-Marie La Rosa, Revision Procedure under the ICC Statute, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Flavia Lattanzi, Compétence de la Cour pénale internationale et consentement des états, 103 RGDIP (No. 2, 1999). Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against the Accused, 90 A.J.I.L. (1996). Monroe Leigh, Witness Anonymity is Inconsistent with Due Process, 91 A.J.I.L. (1997). Peter Lewis, Trial Procedure, in THE INTERNATIONAL CRIMINAL COURT: ELEMENTS OF CRIMES AND RULES OF PROCEDURE AND EVIDENCE, Roy S. Lee ed., Transnational Publishers (2001). Matthew Lippman, Humanitarian Law: The Development and Scope of the Superior Orders Defence, 20 Penn State International Law Review (Fall 2001). ——, Humanitarian Law: The Uncertain Contours of Command Responsibility, 8 Tulsa Journal of Comparative and International Law (2001). Jennifer J. Llewellyn and Robert Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission, 49 Univ. of Toronto L.J. (1999). David Lusty, Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials, 24 Sydney L. Rev. (2002). Margaret McAuliffe deGuzman, Applicable Law, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999).

bibliography

545

Bryan MacPherson, Building an International Criminal Court for the 21st Century, 13 Conn. J. Int’l L. 1, (Winter 1998). Timothy L.H. McCormack, From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime, in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES, Timothy L.H. McCormack and Gerry J. Simpson eds., Kluwer Law International (1997). Gregory McClelland, A Non-Adversary Approach to International Criminal Tribunals, 26 Suffolk Transnational Law Review (Winter 2002). Patricia A. McKeon, An International Criminal Court: Balancing the Principle of Sovereignty against the Demands for International Justice 12 St. John’s J.L. Comm. (1997). Peter Malanczuk, Protection of National Security Interests, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Susanne Malstrom, Restitution of Property and Compensation to Victims, ESSAYS ON ICTY PROCEDURE AND EVIDENCE in Honour of Gabrielle Kirk McDonald, Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen eds., Kluwer Law International (2001). Mame Mandiaye Niang, Le Tribunal pénal international pour le Rwanda. Et si la contumace était possible! 103 RGDIP (1999). Kenneth Mann, Hearsay Evidence in War Crime Trials, in WAR CRIMES IN INTERNATIONAL LAW, Yoram Dinstein & Mala Tabori eds., Martinus Nijhoff Publishers (1996). Antonio Marchesi, Enforcement of Sentences, in ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Vol. I, Flavia Lattanzi and William A. Schabas eds., Sirente Pub. (1999). Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion, 97 AJIL ( July 2003). ——, Construction a Hierarchy of Crimes in International Criminal Law Sentencing, 87 Va. L. Rev. 415 (2001). Richard May and Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha, 37 Columbia Journal of Transnational Law (1999 # 3). Lamia Mekhemar, The Status of the Individual in the Statute of the International Criminal Court, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT—A CHALLENGE TO IMPUNITY, Mauro Politi and Giuseppe Nesi (eds.), AshgateDarmough Pub. (2001). Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int’l L.J. (2002). Andrew Mitchell, Failure to Halt, Prevent or Punish: The Doctrine of Command Responsibility for War Crimes, 22 Sydney Law Review (September 2000). Mercedeh Momeni, Balancing the Procedural Rights of the Accused Against a Mandate to Protect Victims and Witnesses: An Examination of the Anonimity Rules of the International Criminal Tribunal for the Former Yugoslavia, 41 Howard Law Journal (1997). Madeline H. Morris, Rwandan Justice & the International Criminal Court, 5 ILSA Journal of International & Comparative Law (Spring 1999). Eric Mose, Impact of Human Rights Conventions on the Two ad hoc Tribunals, in HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE DOWNTRODDEN, Morten Bergsmo ed., Essays in Honour of Asbjorn Eide, Martinus Nijhoff Publishers (2003). Sari Moshan Brook, Women, War, and Words. The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity, 22 Fordham International Law Journal (November 1998). Daryl A. Mundis, Current Development: New Mechanisms for the Enforcement of International Humanitarian Law A.J.I.L. (2001). Sean D. Murphy, Developments in International Criminal Law: Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 A.J.I.L. (1999). Winston P. Nagan and Lucie Atkins, The International Law of Torture: From Universal Proscription to Effective Application and Enforcement, 14 Harvard Human Rights Journal (Spring 2001). David A. Nill, National Sovereignty: Must it be Sacrificed to the International Criminal Court, 14 Brigham Young University Journal of Public Law (1999). Yves Nouvel, Précisions sur le Pouvoir du Tribunal pour l’Ex-Yougoslavie d’Ordonner la Production

546

bibliography

des Preuves et la Comparution des Témoins: l’Arrêt de la Chambre d’Appel du 29 Octobre 1997 dans l’Affaire Blaskic, R.G.D.I.P. (1998–1). Daniel D. Ntanda Nsereko, Preliminary Rulings Regarding Admissibility, in in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Alexander Orakhelashvili, The Position of the Individual in International Law, 31 California Western International Law Journal (2001). Alphons Orie, Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and In the Proceedings Before the ICC, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Giuseppe Palmisano, ICC and Third States, in ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Vol. I, Flavia Lattanzi and William A. Schabas (eds.), Sirente Pub. (1999). Raul C. Pangalangan, Non-retroactivity Ratione Personae, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Jordan J. Paust, Conceptualizing Violence: Present and Future Developments in International Law: Panel II: Adjudicating Violence: Problems Confronting International Law and Policy on War Crimes and Crimes Against Humanity: It’s No Defence: Nullum Crimen, International Crime and the Gingerbread Man, 60 Albany Law Review (March 1997). Jelena Pejic, Creating a Permanent International Criminal Court: The Obstacles to Independence and Effectiveness, 29 Columbia Human Rights Law Review (Spring 1998). Mary Margaret Penrose, The Question of Detention for International War Crimes, 16 New York Law School Journal of Human Rights (2000). ——, Spandau Revisited: The Question of Detention for International War Crimes, 16 N.Y.L. Sch. J. Hum. Rts. (2000). ——, It’s Good to Be the King!: Prosecuting Heads of State and Former Heads of State Under International Law, 39 Columbia Journal of Transnational Law (2000). Ruth B. Philips, The International Criminal Court Statute: Jurisdiction and Admissibility, 10 Criminal Law Forum (1999). Daniel B. Pickard, Proposed Sentencing Guidelines for the International Criminal Court, 20 Loy. L.A. Int’l & Comp. L.J. (1997). Donald K. Piragoff, Mental Element, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Evidence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Mauro Politi, Elements of Crime, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Kimberly Prost, Availability of Procedures under National Law, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer, ed., Nomos Verlagsgesellschaft (1999). Kimberly Prost, Angelika Schlunck, Costs, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Consultations, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Kimberly Prost, Angelika Schlunck, Other Forms of Cooperation, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Daniel J. Rearick, Innocent Until Alleged Guilty: Provisional Release at the ICTR, 44 Harv. Int’l L.J. (2003). Dino Rinoldi and Nicoletta Parisi, International Cooperation and Judicial Assistance Between the International Criminal Court and States Parties, in in ESSAYS ON THE ROME STATUTE

bibliography

547

OF THE INTERNATIONAL CRIMINAL COURT, Vol. I, Flavia Lattanzi and William A. Schabas eds., Sirente Pub. (1999). Robert Roth and Marc Henzelin, The Appeal Procedure of the ICC, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Sherrie L. Russell-Brown, Poisoned Chalice? The Rights of Criminal Defendants Under International Law, During the Pre-Trial Phase, 8 UCLA Journal of International Law and Foreign Affairs (2003). Kristina D. Rutledge, Comment and Note: Spoiling Everything—but for Whom? Rules of Evidence and Procedure and International Criminal Proceedings, 16 Regent U.L. Rev. (2003/2004). Leila Nadya Sadat, and S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 Georgetown Law Journal (2000). Per Saland, International Criminal Law Principles, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE: ISSUES NEGOCIATIONS AND RESULTS, Roy S. Lee ed., Kluwer Law International (1999). William Schabas, Genocide, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Conceptualizing Violence: Present and Future Developments in International Law : Panel II: Adjudicating violence: Problems Confronting International Law and Policy on War Crimes and Crimes Against Humanity: War Crimes, Crimes Against Humanity and the Death Penalty, 60 Albany Law Review (1997). ——, Trial in the Presence of the Accused, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Nulla Poena sine Lege, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Non-Applicability of Statute of Limitations, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Presumption of Innocence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Right of the Accused, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, International Decisions, Barayagwiza v. Prosecutor, Decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda on prolonged detention prior to indictment and appearance before the Tribunal, 94 A.J.I.L. ( July 2000). ——, Symposium: Justice in Cataclysm Criminal Trials in the Wake of Mass Violence: Sentencing by International Tribunals: A Human Rights Approach, 7 Duke J. Comp. & Int’l L. (1997). ——, Sentencing, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Penalties, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Limitation on the Prosecution or Punishment of other Offences, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Benjamin B. Sendor, The Relevance of Conduct and Character to Guilt and Punishment, 10 ND J.L. Ethics & Pub Pol’y (1996). Michael Scharf, Trading Justice for Efficiency —Plea-Bargaining and International Tribunals, ICJ (2004). David J. Scheffer, Developments in International Criminal Law: The United States and the International Criminal Court, 93 American Journal of International Law ( January 1999).

548

bibliography

Angelika Schlunck, Issuance by the Pre-Trial Chamber of a Warrant of Arrest, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Arrest Proceedings in the Custodial State, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Yuval Shany and Keren R. Michaeli, The Case Against Ariel Sharon: Revisiting the Doctrine of Command Responsibility, 34 New York University Journal of International Law and Politics (Summer 2002). Jerome J. Shestack, A Review and Critique of the Statute of the International Tribunal, in WAR CRIMES IN INTERNATIONAL LAW, Yoram Dinstein & Mala Tabori eds., Martinus Nijhoff Publishers (1996). Kuniji Shibahara, Confirmation of the Charges before Trial, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Sienho Yee, The Erdemovic Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 Ga. J. Int’l & Comp. L. (1997). Goran Sluiter, International Criminal Proceedings and the Protection of Human Rights, (The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal for the Former Yugoslavia), 37 New Eng. L. Rev. (Summer 2003). Goran Sluiter, The Surrender of War Criminals to the International Criminal Court, 25 Loyola of Los Angeles International & Comparative Law Review (2002). Ronald C. Slye, Apartheid as a Crime Against Humanity: A Submission to the South African Truth and Reconciliation Committee, 20 Michigan Journal of International Law (Winter 1999). Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence? 167 Mil. L. Rev. (2001). Christopher Staker, Appeal against Decision of Acquittal or Conviction or against Sentence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Appeal against other Decisions, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Revision of Conviction or Sentence, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Proceedings on Appeal, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Sara Stapleton, Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, 31 International Law and Politics New York University Journal of International Law and Politics (1999). Robert A. Stein, Life in a Bubble: The International Criminal Tribunal for the Former Yugoslavia, International Society of Barrister’s Quarterly (2001). James F. Stephens, Criminal Procedure from the Thirteenth to the Eighteenth Century in Selected Essays in Anglo-American Legal History, compiled and edited by the Committee of American Law Schools (1907–1909). James Stewart, Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent, International Criminal Law Review (2003). David Stoelting, ICC Pre-Trial Proceedings: Avoiding Gridlock, 9 ILSA Journal of International & Comparative Law (Spring 2003). Gerhard A.M. Strijards, Seat of the Court, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Bert Swart, General Problems, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Arrest Proceedings in the Custodial State, in THE ROME STATUTE OF THE INTER-

bibliography

549

NATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Gerhard A.M. Strijards, Escape, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Immi Tallgren, Ne bis in Idem, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Chet. J. Tan Jr., The Proliferation of Bilateral Non-Surrender Agreements Among Non-Ratifiers of the Rome Statute of the International Criminal Court, 19 Mich. Law Rev. (2004). Frank Terrier, The Procedure before the Trial Chamber, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Frank Terrier, Powers of the Trial Chamber in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Stephen C. Thaman, Miranda in Comparative Law, 45 St. Louis L.J. (2001). Susan W. Tiefenbrun, The Paradox of International Adjudication: Developments in the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the World Court, and the International Criminal Court, North Carolina Journal of International Law & Commercial Regulation (2000). David Tolbert and Asa Rydberg, Enforcement of Sentences, in ESSAYS ON ICTY PROCEDURE AND EVIDENCE in Honour of Gabrielle Kirk McDonald, Richard May, David Tolbert, John Hocking, Ken Roberts, Bing Bing Jia, Daryl Mundis and Gabriël Oosthuizen eds., Kluwer Law International (2001). David Tolbert, The ICTY and Defence Counsel: A Troubled Relationship, in The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal for the Former Yugoslavia, 37 New Eng. L. Rev. (Summer 2003). Vladimir Tochilovsky, Rules of Procedure for the International Criminal Court: Problems to Address in the Light of the Experience of the Ad Hoc Tribunals, XLVI Netherlands International Law Review (1999). Otto Triffterer, The Court, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Preliminary Remarks: The Permanent ICC—Ideal and Reality, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Irrelevance of Official Capacity, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Mistake of Fact or Mistake of Law, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Superior Orders and Prescription of Law, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Place of Trial, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Jonathan Turley, Symposium on Trials of the Century: Transformative Justice and the Ethos of Nuremberg, 33 Loyola of Los Angeles Law Review (2000). Giuliano Turone, Powers and Duties of the Prosecutor, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Christine Van den Wyngaert, and Tom Ongena, Ne bis in idem Principle, Including the Issue of Amnesty, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002).

550

bibliography

Christine Van den Wyngaert and John Dugard, Non-Applicability of Statute of Limitations, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Johan D. Van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 Emory International Law Review (Spring 2000). Greg Vetter, Command Responsibility of Non-Military Superiors in the International Criminal Court, 25 Yale Journal of International Law (Winter 2000). Lal Chand Vorah, Pre-Trial Procedures and Practices, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary, Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., Vol. 1, Kluwer Law International (2000). Patricia M. Wald, To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings, 42 Harv. Int’l L.J. (2001). ——, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court 5 Wash. U. J.L. & Pol’y (2001). Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-War II War Crime Trials: Did They Provide an Outline for International Legal Procedure, 37 Columbia Journal of Transnational Law (1999). Gregory P. Watson, The Changing Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, in The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Last Decade, New Eng. L. Rev. (Summer 2003). Stefan Wäspi, Die Arbeit der Internationalen Strafgerichtshöfe für das ehemale Jugoslawien und Ruanda; Herausforderungen für die Anklage im internationalen Umfeld, NJW (2000). Sharon A. Williams, Preconditions to the Exercise of Jurisdiction, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Jurisdiction Ratione temporis, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). Edward M. Wise, The International Criminal Court: A Budget of Paradoxes, 8 Tulane Journal of International and Comparative Law (Spring 2000). Michaïl Wladimiroff, Rights of Suspects and Accused, in SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, The Experience of International and National Courts, Commentary, Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., Vol. 1, Kluwer Law International (2000). R. George Wright, The Death Penalty and the Way We Think Now, 33 Loy. L.A. L. Rev. (2000); Rassam A. Yasmine, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 Virginia Journal of International Law (Winter 1999). Salvatore Zappalà, The Rights of the Accused, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Rights of Person During an Investigation, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Compensation to an Arrested or Convicted Person, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). Andreas Zimmerman, War crimes—Preliminary Remarks on paragraphs 2(c)–( f ) and paragraph 3: War Crimes Committed in an Armed Conflict not of an International Character, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999). ——, Superior Orders, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones eds., Oxford University Press (2002). ——, Introduction, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Otto Triffterer ed., Nomos Verlagsgesellschaft (1999).

bibliography

551

Reports Annual Reports of the ICTY First Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, 28 July 1994, reprinted in ICTY Yearbook (1994); UN Doc. S/1994/1007, 29 August 1994. Second Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, reprinted in ICTY Yearbook (1995); UN Doc. S/1995/728, 23 August 1995. Third Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, UN Doc. S/1997/729, 18 September 1997. Fourth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/1997/729, 18 September 1997. Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible of Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, UN Doc. S/1998/737, 10 August 1998. Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/1998/846, 25 August 1999. Annual Reports of the ICTR Fourth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994; UN Doc. No. S/1999/943, 7 September 1999. Sixth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994; UN Doc. No. S/2001/863, 14 September 2001. Other Reports Amnesty International 1998 Annual Report on Rwanda (the Rwandese Republic); see Amnesty International Website . Amnesty International, The International Criminal Court: Ensuring An Effective Role for Victims, AI Index: IOR 40/10/99 ( July 1999). Amnesty International, International Criminal Tribunal for Rwanda, Trials and Tribulations, Summary of Report, IOR 40/03/98, 1 April 1998. Assessment and Report of Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Security Council Resolution 1536 (2004). Report of the Ad Hoc Committee on the Establishment of the International Criminal Court, U.N. GAOR, 50th Session, Supp. No. 22, U.N. Doc. A/50/22 (1995). Report of the American Bar Association Task Force on War Crimes in the Former Yugoslavia, Commenting on the United States Draft Rules of Procedure and Evidence for the International Tribunal, U.N. Doc. IT/INF.6/Rev. 2, 18 January 1994. Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, U.N. Doc. A/AC.249/1998/L.13. Report of the International Law Commission on the work of its Forty-Six Session, Draft Statute for an International Criminal Court, 2 May–22 July 1994, U.N. Doc. A/49/10 (1994).

552

bibliography

Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/51/22, Vol. I. (1996). Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, U.N. Doc. A/CONF.183/2/Add.1. Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/51/22. Vol. II, 239–240; Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997, U.N. Doc. A/AC.249/1997/ L.8/Rev. 1. Report of the Preparatory Committee on International Criminal Court, U.N. GAOR, 51st Sess., Supp. No. 22, at 5, U.N. Doc. A/51/22 (1996). Report of the Secretary-General Pursuant to Resolution 808, U.N. Doc. S/25704, 3 May 1993. Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955, UN Doc. S/1994/924, 8 November 1994.

INDEX

absentia, see trial in absentia accused, see rights of the accused acquittal – decision proprio motu 35, 67, 74, 81, 83, 99, 101 n. 410, 121, 157, 159, 160, 184, 205, 226, 265, 289, 310, 336, 354 – motion for 98, 99 n. 400, 100, 100 nn. 402, 403, 405; 235, 235 n. 1081, 287, 288 n. 1405 additional evidence 218, 239, 253, 289, 290, 305 n. 1503, 323 n. 1607, 385, 388, 396, 472–473 admissibility 12, 14, 28 n. 105, 83, 85, 85 n. 330, 94 n. 380, 95, 95 n. 385, 97, 99, 117 n. 493, 122, 122 n. 518, 128, 144, 146, 148, 173, 174, 184, 185, 187, 218, 237, 250, 251 n. 1164, 254–255, 255 n. 1197, 259, 264 n. 1252, 276, 282–283, 314–315, 345, 354–357, 387, 399, 404, 413, 454, 456–457, 460, 462, 466, 485, 494, 498, 502, 517–519 admission of guilt 3, 167, 219 n. 987, 238 n. 987, 238 n. 1098, 239, 239 n. 1105, 240–241, 241 n. 1116, 242, 258 n. 1214, 291, 297, 387–388, 499–500 adversarial system 3, 11, 50, 50 n. 195, 96, 143 n. 618, 145, 157 n. 674, 239, 253 affidavits 12, 94 n. 383, 283 n. 1381 Agreement Between the United Nations and the Kingdom of the Netherlands Concerning the Headquarters of the International Tribunal 50, 50 n. 194 Agreement on the Privileges and Immunities of the International Criminal Court 252, 252 n. 1177, 253 n. 1178 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) 7 n. 12 amicus curiae 80, 80 nn. 311–313; 81, 151, 232, 232 n. 1069, 233–234, 234 n. 1078, 235, 237–238, 238 nn. 1095, 1096; 281, 483 amnesty 17, 17 n. 61, 37, 37 nn. 144–145; 38 n. 148, 59 n. 223, 130, 131 n. 571, 246

Amnesty International 17, 17 n. 61, 37, 37 nn. 144–145; 38 n. 148, 59 n. 223, 130, 131 n. 571, 246 anonymous witnesses 93 n. 377, 227 n. 1036, 280 n. 1360, 281, 281 n. 1361, 282 appeal – against acquittal 101, 304, 306–307, 398 – against judgment 313 – against sentence 304, 306, 309, 398–400 – detention pending appeal 112, 311, 399 – grounds of appeal 112 n. 475, 113, 113 n. 484, 117, 119, 119 n. 504, 120–121, 306 – interlocutory appeal 94 n. 380, 96 n. 388, 119, 234 n. 1076, 235, 235 nn. 1082, 1083, 236 n. 1086, 238 n. 1097, 262 n. 1232, 306 n. 1508, 313 n. 1545; 316 – notice of appeal 81 n. 318, 100, 104, 113, 113 n. 484, 116–117, 121, 125 n. 530 – right of appeal 115, 115 n. 487, 303–304, 304 n. 1497, 305–307, 307 n. 1513, 308–309, 313–314, 317, 341 – standing 34, 85 n. 330, 245 – time limits 314, 319 – and double jeopardy 70, 104, 104 n. 429, 182 n. 836, 312, 312 nn. 1539, 1543; 313 applicable law 3, 127, 129, 133, 134 n. 587, 135, 173, 186, 188 n. 863, 315, 345, 359, 363, 388 arbitrary and detention 39 n. 152, 168, 378 arrest 23, 23 n. 78, 26 n. 94, 28–29, 29 n. 114, 30–31, 31 n. 121, 32, 32 n. 125, 33–34, 34 n. 133, 35, 35 nn. 135, 137; 36–38, 38 n. 146, 39, 39 n. 152, 40, 40 nn. 153, 156, 158; 41, 41 nn. 160–161, 163; 42, 43 n. 173, 51 n. 198, 52 n. 199, 63 n. 241, 99 n. 398, 104, 107 n. 440, 111 n. 470, 113, 126, 136, 137 n. 596, 138, 138 n. 598, 147, 147 n. 639, 148 n. 645, 151, 155, 161–162, 169, 203–204, 206, 253, 303, 341, 347, 378, 401, 404, 406–408, 490, 512, 514, 518–520

554

index

arrest in the custodial state 155, 162 Association of Defence Counsel Practicing before the International Tribunal for the Former Yugoslavia (ADC-ICTY) 52 n. 201 bail 67, 311 Basic Principles for the Treatment of Prisoners 65 n. 245, 132 n. 376 Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment 43 n. 173, 58 n. 217, 65 n. 245, 132 n. 576, 331 burden of proof 49 n. 190, 56 n. 213, 98 n. 392, 101, 143, 166, 227, 263 n. 1244, 267, 269, 389 charges 3 n. 3, 10–11, 28, 31–33, 38, 40 n. 158, 42 n. 169, 43, 44 n. 177, 47 n. 184, 50 n. 195, 53, 63, 64 n. 242, 66 n. 246, 72, 82, 86, 101–102, 104, 143–144, 147, 150, 150 n. 654, 151, 159, 165, 169–170, 171, 217, 226, 230, 239–241, 241 n. 1116, 242, 298, 325, 338, 357, 384–388, 395, 401, 454, 461, 464, 478–479, 492–497, 501, 510, 511, 519 civil law system 3, 10, 11 n. 31, 48 n. 185, 83 n. 325, 86 n. 333, 146, 187, 238 n. 1098, 239 n. 1103, 240 n. 1108, 284 closing arguments 78, 90, 101, 101 nn. 409–410; 278, 289 code of professional conduct 57 n. 213, 232 n. 1069, 441, 447–448 common law system 1, 12 60, 68 n. 253, 87, 145, 187, 284 commutation of sentence 132–134, 134 n. 586, 135–136 compensation for human rights violation 401–402, 435, 514–515 compensation of victims 168, 303, 339, 396 complementary jurisdiction 174, 184, 184 n. 846 confession 93, 166, 466 confirmation of charges 3 n. 3, 150, 151, 159, 165, 169, 170, 217, 454, 492, 495–497 contempt of Court 68 n. 253 contempt of Tribunal 80 n. 314, 81 n. 318, 230 n. 1052, 269 n. 1286 Convention (see also agreements and treaties) – Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 34 n. 134

– American Convention on Human Rights 132 n. 576, 165 n. 724, 331 n. 1655 – European Convention for the Protection of Human Rights and Fundamental Freedoms 118 n. 500, 132 n. 576, 165 n. 724, 189 n. 870 – Geneva Conventions of 12 August 1949 for the Protection of War Victims 18 n. 63, 20 n. 64, 21 n. 65, 52 n. 200, 179, 347, 350 – Hague Convention (IV) Respecting the Laws and Customs of War on Land 21 n. 65 – Convention on the Prevention and Punishment of the Crime of Genocide 4 n. 8, 8 n. 14, 21 n. 65 co-operation of states 1, 51 n. 199 corroboration 86, 86 nn. 333–334, 87, 462 Court – competence 23, 26, 53, 62 n. 234, 70, 70 n. 265, 79, 173, 232 n. 1069, 240, 341, 403 – impartiality 13 n. 40, 26 n. 96, 69, 70, 79, 175, 230 – independence 26 n. 96, 46 n. 181, 53 n. 203, 70, 184, 252, 343 credit for time served 112 crime of genocide 4, 9 n. 22, 107 n. 440, 174, 176, 194, 245, 294, 345, 364 crimes against humanity 4, 9, 9 n. 22, 13, 16, 19 n. 63, 20 n. 64, 52 n. 200, 77, 95, 106–107, 107 n. 440, 109, 120 n. 507, 125, 134, 148, 174–176, 176 n. 800, 177, 177 nn. 803–804, 812; 178 n. 812; 180, 183, 198, 242, 294–298, 298 n. 1461, 332, 345–346, 364 criminal responsibility – individual 21, 182 n. 833, 187, 192–193, 194, 198, 360–361 – grounds excluding 198, 243, 363 – mental element 184, 187, 199–201, 362, 364 – mistake of fact 184, 187, 198–200, 200 n. 900, 364 – mistake of law 199–200, 364 cross examination 14, 60, 77, 82, 82 n. 322, 83 n. 322–323; 87, 90, 94, 144–145, 149, 150–151, 230 n. 1052, 256 n. 1202, 266 n. 1260, 273, 276 n. 1340, 277–279 cumulative charges 120 n. 507 cumulative convictions 120, 120 n. 507, 121 n. 512 custodial State 36, 155, 162–163, 169 n. 760, 382–383, 414, 490

index customary international law 4 n. 8, 10, 21, 32, 34, 34 n. 134, 43, 86, 179 n. 821, 180, 191 n. 877, 193 n. 883 death penalty 10, 13, 15, 105, 105 n. 435, 106 n. 435, 136, 190, 190 n. 875, 293, 293 n. 1431 defence – age of majority 198 – assignment 235 n. 1083, 236 nn. 1086–1087 – case 76, 92, 100 – coercion 22, 36 n. 138, 80, 166 n. 738, 167, 178 n. 812, 258, 378, 464 – consent 22 n. 73, 98, 464 – disclosure 12, 49, 56 n. 212, 263, 470 – duress 199, 199 n. 898, 503 – human rights 1–2, 16, 23–24, 33–36, 53 n. 203, 65, 97, 115, 137, 138, 163–164, 186, 197, 227, 286 – investigation 143, 147, 151, 232 – mental capacity 503 – municipal law 63 n. 239 – superior orders 7 n. 11, 9, 109, 109 n. 453, 196 n. 892, 197, 197 n. 894, 198, 199 n. 898 defence counsel – appointment 162, 252, 448, 490 – contempt 81 – fees and expenses 122 n. 518, 374, 420 – languages 223, 223 n. 1008, 448 – qualifications 57 n. 213, 248, 428, 448 – right to counsel 43, 52 n. 201, 93, 164, 164 n. 719, 165, 378 – withdrawal 36 n. 140 – see also defence deferral of national courts 26, 26 n. 96, 70, 79, 358, 459 deliberations 12, 102, 113, 151, 210, 290, 325, 395, 439, 454, 501 detention – conditions of 67, 130 – lawfulness 43, 43 n. 173, 98 – on remand 66 n. 246, 234 n. 1077, 318 – pre-trial detention 43, 54, 54 n. 207, 55, 59 n. 223, 65, 66 nn. 246, 248; 138, 168, 490 – provisional detention 28–29, 37 – provisional release 54 n. 207, 55, 55 nn. 208, 210, 65–66, 66 n. 248, 67, 67 n. 248, 72, 113, 133, 170 n. 763, 227, 290 deposition of evidence 74–75, 89 n. 350 detained suspect 65 disclosure of documents 22 n. 75, 47 n. 184, 386

555

disclosure of evidence 46, 47 n. 184, 138, 263, 390, 409 discovery 2, 37, 50 n. 191, 51, 137 n. 596, 223, 257, 305 n. 1503 discretion of the Court 245, 311, 338 discretion of the Tribunal 97 documentary evidence 95, 95 n. 387, 123, 265, 279 double jeopardy 70, 104, 121 n. 512, 182 n. 836, 312, 312 nn. 1539–1540, 1543; 313 due process 23, 39, 45, 131, 137, 283, 310 n. 1527, 342, 355, 358 duration of proceedings 58, 89, 220, 229, 311 duress 22, 22 nn. 73, 76; 36 n. 138, 97 n. 390, 98 n. 394, 110, 167, 182, 198–199, 199 n. 898, 297, 297 n. 1453, 300, 301 n. 1483, 363, 378, 503 enforcement of sentence 113 n. 480, 128, 131, 134, 333, 415–416, 523, 526 error of fact and of law 119–120, 306, 307 n. 1513, 308, 309 n. 1526, 310, 313 n. 1544, 317–319, 398, 400 equality of arms 45–46, 49–50, 52, 165 n. 724, 227–228, 250, 253, 342 European Court of Human Rights 66 n. 246, 92, 118 n. 500, 224, 304 n. 1497 European Prison Rules and Rules Governing the Detention of Persons Awaiting Trial 132 n. 576 evidence – additional 96, 101 n. 410, 117, 117 n. 493, 122, 122 n. 518; 123–124, 127, 218, 239, 253, 289, 290, 305 n. 1503, 309 n. 1526, 323 n. 1607, 385, 388, 472–473 – admissibility 14, 83, 85 n. 330, 95 n. 385, 122, 146, 237, 251 n. 1164, 254–255, 264 n. 1252, 285 n. 1390, 316 n. 1564, 380, 392, 462, 465 – admission 3, 24–25, 75, 83, 250, 259 – anonymity of witness 27 n. 98, 61 n. 232, 91–92, 280–281 – audio or video link testimony 75, 167, 272, 463–464 – collection 51 n. 196, 149, 157, 251–252, 286, 392, 486, 489 – corroboration 86, 86 nn. 333–334; 87 – custody 23 n. 77, 26 n. 96, 21 n. 119, 32–33, 35 n. 135, 39, 41–42, 46 n. 183, 49, 55, 59 n. 223, 64 n. 242, 112 n. 476, 129, 131, 136 n. 151 n. 658, 256, 271 n. 1296, 336–338, 347, 433, 500, 518–519

556

index

– documentary 81, 95, 95 n. 387, 123, 171, 265, 279, 384 – exclusion 63, 72, 75, 97, 97 n. 391, 98, 174, 187, 191, 200, 243, 263 n. 1244, 264, 286, 324 n. 1608 – exculpatory 47, 47 n. 185, 48 nn. 185, 186; 50 n. 191, 51, 146, 234, 237, 250, 307 n. 1514, 312, 472 – expert witness 69, 94–95, 95 n. 384, 151, 270 n. 1289, 276–279 – failure to disclose 263 – false 91, 324 – hearsay 12, 84–85, 85 n. 330, 143, 149, 276 n. 1341, 284, 284 n. 1387, 285–286 – illegally obtained 70, 192, 287 – inadmissible 12, 22, 63, 97, 146–147, 156, 159, 254–255, 286–287, 463 – in case of sexual violence 177, 258–259, 464–465 – incrimination by family members 275, 468 – inculpatory 48 n. 186, 146, 250, 312 – judicial notice 95, 95 n. 387, 96, 264–265, 266, 266 n. 1260, 267, 391 – language 256 – power to compel witness attendance and testimony 263, 271 – presentation 32, 82, 82 nn. 320, 322; 83, 83 n. 323, 89–91, 101, 123, 279, 301, 390 – production 14, 67, 253, 387, 408 – protection of national security information 158, 217, 267, 380, 393, 493, 498 – prior recorded testimony 272, 391, 464 – reliable 28, 85 n. 330, 92, 157, 255, 258 – relevant 83, 157, 218, 254, 290, 387 – translation 258 – unreliable 61, 92, 255, 286 – unavailable 305, 323 – witness testimony 87, 269, 271 – written 88 n. 341 expert witness 69, 94–95, 95 n. 384, 151, 270 n. 1289, 276–279 ex post facto law 16, 341 general principles of criminal law 4 n. 6, 186–187, 188 n. 863, 200, 359 – individual criminal responsibility 187, 192–194, 198, 360–361 – irrelevance of official capacity 187, 194, 361 – non-applicability of statute of limitations 192, 362

– non-retroactivity 188 n. 863, 189, 191, 360 – nulla poena sine lege 131, 187, 190–191, 360 – nullum crimen sine lege 16, 20, 186, 188, 359 – responsibility of commanders and superiors 187, 362 grounds for revision 322 guilty plea 44–45, 104 n. 424, 111, 111 nn. 468, 470; 112, 167, 238, 238 n. 1098, 239, 242–243, 291, 296 host country or state 28, 30, 57 n. 213, 65–66, 78 n. 305, 88, 130, 133 human rights – applicability 35, 58, 65, 163, 227 – standards 2, 33, 35–36, 65, 341 – test 72, 91 n. 370, 92, 98–99, 237 – violations 97, 342 illegally obtained evidence 70, 192 immunity 195 n. 889, 206 n. 916, 214, 253, 374, 412 impartiality 13 n. 40, 26 n. 96, 53, 69, 70, 79, 230, 365, 369, 371, 452 imprisonment – conditions of 133, 330–331, 333, 336, 416, 526–527 – life 13, 15, 107, 107 n. 440, 190, 293–294, 298, 302, 334, 397, 418, 504–505 – place of 129 – standard minimum rules 65 n. 245, 132 n. 576, 331 – supervision of 130 indictment – additional charges 385 – amended 29 n. 108, 47 n. 184, 58 n. 219, 241 n. 1116, 309 n. 1524 – confirmation 30–32 – disclosure 31 – form and content 11, 33 – withdrawal 36 n. 140, 37, 170, 205, 242, 384 indigent person 56 n. 213, 164 n. 717, 165 n. 724, 232 n. 1069 individual criminal responsibility – command responsibility 183 n. 839, 193 n. 884, 196 n. 891, 197 n. 893 – conspiracy 77 n. 302 – criminal organization 194, 198 – official position 21 – superior orders 198 inhuman and degrading treatment 20 n. 64, 33, 34 n. 134, 36 n. 138, 131,

index 167, 286 n. 1397, 331 n. 1655, 347, 349–350, 378 inhumane acts 19 n. 63, 20 n. 64, 107 n. 440, 178, 346–347 initial appearance of the accused 23, 42–43, 45–46, 67, 243, 308 n. 1516 inquisitorial system 3, 11, 141–142, 146, 150, 157 n. 674 interest of justice 31, 74–75, 82, 95, 156, 169, 232–233 interlocutory appeal 65, 73, 73 n. 283, 235, 235 n. 1082, 315 n. 1562, 316 International Criminal Defence Attorney Association (ICDAA) 52 n. 201 International Committee of the Red Cross 263 n. 1242, 466 international cooperation and judicial assistance – exception to the obligation to cooperate 164, 211–214 – implementation 208–211, 216, 488 – international entities 204 – measures of enforcement 215–216 – nature 203–204, 402, 512, 516 – non party states 207, 210 – obligation to cooperate 205–207, 270, 402 International Court of Justice 97 n. 390, 221, 221 n. 996, 303 n. 1490, 304 n. 1497, 366, 421 International Covenant on Civil and Political Rights 29 n. 112, 38, 115 n. 487, 132 n. 576, 165 n. 724, 224, 228 International Law Commission 8, 8 n. 14, 19, 304 n. 1499, 307 n. 1513, 317 n. 1576 International Military Tribunal (IMT), see Nuremberg Tribunal International Military Tribunal for the Far East (IMTFE), see Tokyo Tribunal interrogation 28, 63 n. 239, 83, 137–138, 341 interpreter 27, 57, 168 n. 750, 256, 258 n. 1212, 330, 378, 389, 440, 524 investigating judge 3 investigation – initiation of an 156, 161, 221, 376, 381, 456, 482, 484 joint trial 58–59, 72–73, 77, 77 n. 302, 78 n. 302, 100 n. 403, 102, 126, 129 n. 559, 500 judges – disqualification 230 n. 1056, 369, 370, 452 – impartiality 13 n. 40, 26 n. 96, 53, 69–70, 79, 230, 365, 369, 371, 452

557

– independence 26 n. 96, 46 n. 181, 53 n. 203, 70, 184, 252, 369 – privileges and immunities 50, 50 n. 192, 252, 253 nn. 1178, 1181, 374 – qualification 53 n. 203, 54, 57 n. 213, 248, 276, 365–366 judicial notice 95, 95 n. 387, 96, 264–267, 391 juge d’instruction 145 jurisdiction – challenge to 70, 70 n. 266, 206 – complementary jurisdiction 174, 184, 184 n. 846 – rationae loci (territorial) 18, 173, 181 – rationae materiae (subject matter) 17, 173, 184 – rationae personae (personal) 173, 182, 184, 360 – rationae temporis (temporal) 173, 181 list of exhibits and witnesses 76 n. 298 medical examination (of the accused) 158 n. 679, 499 minimum guarantees of the accused 11, 56–57, 60, 118, 226–229, 389 minor 30 n. 116, 229 miscarriage of justice 39, 62 n. 233, 119–120, 123–125, 137 n. 596, 165 n. 724, 303, 303 n. 1496, 306, 309, 321, 324 n. 1608, 402, 514–515 misconduct by defence counsel 79 n. 310, 81 n. 318, 218, 232 n. 1069, 264, 448–451, 510, 513 mitigating circumstances 82 n. 320, 107, 107 n. 440, 108, 108 n. 443, 109, 109 n. 456, 110, 112 n. 475, 120, 289, 294–298, 298 n. 1468, 300, 503 – age of the accused 110, 110 n. 458, 112 – behaviour of the accused 110 – cooperation 109–110, 289, 294–298, 298 n. 1468, 300, 503 – guilty plea 44–45, 104 n. 424, 111, 111 nn. 468, 470; 112, 167, 238, 238 n. 1098, 239, 242–243, 291, 296 – ignorance of law 242 – limited mental capacity 503 – situation of the accused 247 – voluntary surrender 31 n. 121, 110–111, 111 n. 470 motions – for review 127 n. 549, 128 – preliminary motion 22 n. 72, 30 n. 116, 31, 42, 65, 69, 69 n. 262, 71, 73, 73 n. 283, 74, 79 n. 307, 119

558

index

– other motions 65, 72–74, 79 n. 307 multiple convictions 103, 292–293, 295 national court – concurrent jurisdiction 23, 26 n. 96, 175 n. 793 – criminal jurisdiction 174, 343–344 – deferral 26, 26 n. 96, 70, 79, 173, 459 – restitution 105 n. 431, 339, 396, 479, 530 – trial observers 434 – victim compensation 39, 39 n. 151, 79, 168, 303, 339, 396, 401 national law 132, 135, 162, 189, 208–209, 212, 214, 235, 293 n. 1431, 339, 382, 392, 398, 403–404, 407–408, 410, 412, 417, 492, 525, 531 national security 69, 151, 158–159, 212, 217, 224 n. 1018, 267–268, 380, 393–394, 409, 413, 493, 498 NATO 34, 41 n. 160 non bis in idem see double jeopardy notification of charges 71, 209 nulla poena sine lege 131, 187, 190–191, 360 nullum crimen sine lege 16, 20, 186, 188, 359 Nuremberg Charter 8 n. 12, 9 n. 21, 10 n. 25, 11, 11 nn. 27–31; 12, 12 nn. 33, 35; 13, 13 n. 39, 14, 14 n. 46, 15 n. 55 Nuremberg Tribunal 7, 7 n. 12, 8–9, 11, 11 nn. 29–30; 13 n. 40, 295, 304 n. 1497 – fair trial 12–13 – judicial standards 9–10 – proceedings 10–11, 11 n. 31 – prosecutor 11 n. 32, 12 – sentences 15 – superior orders 7 n. 11 – trial in absentia 11, 13 orders – prescription of law 187, 189 n. 869, 197–198, 364 – superior 7 n. 11, 109, 189 n. 869, 197, 197 n. 894, 198, 199 n. 898, 364 pardon 132–136, 294 n. 1435, 334–335 penalty – confiscation of property 190, 293 – death penalty 10, 13, 15, 105, 105 n. 435, 106 n. 435, 136, 190, 293, 293 n. 1431 – fine 105, 90 n. 365, 190, 301 – imprisonment 81, 106, 133, 190, 293, 504 – nationality 174, 253 n. 1181, 327, 330, 337, 406, 415, 524, 529 – natural person 193, 244, 360, 473

plea agreement 44 n. 177, 45, 45 n. 179, 298 plea bargaining 45, 45 n. 179, 167, 167 n. 739, 240, 240 nn. 1108–1109; 242, 242 n. 1123 practice directions 116 n. 490 preliminary motions 31, 42, 65, 69, 69 n. 262, 71, 73, 73 n. 283, 74, 119 preliminary rulings 184–185, 356, 458 presumption of innocence 44, 54, 54 n. 206, 166, 188 n. 863, 227, 268 n. 1278, 388 – burden of proof 49 n. 190, 56 n. 213, 98 n. 392, 101, 143, 166, 227, 267, 269, 389 – conduct 227, 233 – proof of guilt 44, 54 pre-trial – conference 75–76, 76 n. 298, 90 – detention 43, 54, 54 n. 207, 55, 58 n. 217, 59 n. 223, 65, 65 n. 245, 66 n. 246, 138, 168, 432, 490 prima facie case 30, 98 privacy 78 n. 305, 91, 93, 261, 272, 380, 390, 457, 463, 466, 469, 475 privileges 50, 50 n. 192, 252–253, 253 nn. 1178, 1181; 260–261, 261 n. 1229, 374 probative value 12, 62 n. 236, 77 n. 299, 83–84, 85 n. 330, 87 n. 336, 251, 251 n. 1164, 255, 259, 274, 278, 285–286, 391, 465 proceedings – language of the 220, 222 – on admission of guilt 238 – participation of victims 147–148, 244–245, 247–248, 431, 444, 475 production of evidence 67, 253, 387, 408 proof of guilt 3, 12, 49 n. 190, 99 proprio motu powers 35, 67, 74, 81, 83, 99, 101 n. 410, 121, 157, 157 n. 669, 159–160, 184, 205, 226, 265, 289, 310, 336, 354 prosecution – decision not to prosecute 159 – decision to prosecute 4, 17, 18, 18 n. 63, 19, 19 nn. 63, 64; 20 n. 64, 23, 81, 153, 173–175, 528 Prosecutor – privileges and immunities 50, 50 n. 192, 252, 253 n. 1178, 374 protective measures – for victims 23, 26 n. 97, 27 n. 98, 46 n. 182, 61 nn. 231, 233; 91 n. 370, 92 n. 371, 374, 224 n. 1017, 279–280, 372, 381, 390, 521 – for witnesses 23, 26 n. 97, 27 n. 98;

index 46 n. 182, 56 n. 212, 61 nn. 231, 233; 62, 78 n. 304, 91 n. 370, 92 n. 371, 324, 224 n. 1017, 279–280, 281 n. 1363, 372, 390, 474, 521 provisional release and – conditions 55, 55 n. 210, 66 n. 248, 67, 170 n. 763 – exceptional circumstances 55 n. 208 – health of the accused 54 n. 207 public hearing 53–54, 78 n. 304, 92 n. 371, 118 n. 500, 224, 239 n. 1105, 389–390 public order 78, 224 n. 1018, 225 public trial 92–93, 224–225 questioning – by the Prosecutor 27, 93 – and rights of the accused 63, 160–161, 164 – by investigators 50 n. 191, 51, 146, 167, 252 – of suspects 27–28, 137 – of witnesses 78 n. 305, 83, 93, 273 – right to counsel 27, 43, 52 n. 201, 60, 93, 164, 164 n. 719, 165, 378 – right to remain silent 27, 33, 49, 63–64, 100, 166, 227, 227 n. 1034, 266 referral 136, 136 n. 594, 156 n. 668, 157, 157 n. 669, 184 n. 846, 204, 353–354, 370, 376–377, 420–421, 456 Registrar – assignment of counsel 60, 69, 164 n. 717, 165 n. 726, 321 n. 1600, 447 – decisions 56 n. 213, 57 n. 213, 130, 165, 165 n. 726 – functions 33, 50, 55 n. 210, 80, 164 n. 717, 208–210, 226, 247, 252, 256, 371–374, 442–443, 446–448, 480–481, 506–508, 516–518, 520–521, 523, 525–526, 532–533 – privileges and immunities 50, 50 n. 192, 252, 374 – protective measures 236, 247, 449–451, 500 – record 117, 478, 498 rehabilitation 106, 106 n. 439, 112, 134, 329 n. 1637, 332, 335, 339, 396, 479 remedies 38 n. 147, 39–40, 122 n. 517, 264, 317–318, 320–321, 329, 479 – condition 67, 130, 264, 318, 321 – detention 67, 130, 329 – to human right violation 38 n. 147 – inadequate/inadequate treatment 62, 195, 229 – judicial and non judicial 317, 479

559

res judicata 320–321, 327 restitution of property 105 n. 431 review – of the indictment 41 n. 163, 42 n. 164 – proceedings 39, 58 n. 217, 83 n. 325, 99, 115, 127, 128, 207, 303, 317, 321, 321 n. 1600, 323, 325, 356, 532 – of the judgement 128, 133, 159, 226, 304 n. 1497, 321, 321 n. 1602, 322, 358, 377, 490, 496, 499 – of the sentence 97 n. 390, 124, 159 n. 688, 160, 165 n. 726, 169, 170, 304 n. 1497, 305, 320, 320 n. 1597, 322, 332, 334, 417, 418, 437, 531–532 revision 304, 305 nn. 1502–1503; 320–321, 321 n. 1603, 322–326, 330–332, 398, 401, 416, 506, 509 right against inhuman treatment 167 right to appeal 114, 125, 304 right to – adequate preparation for the defence 231 – adequate facilities 236, 279 – a fair hearing 53, 62, 308, 389 – apply for interim release 162–163, 170, 382–383, 490–491 – be informed of the charges 42 n. 169, 230 – call witnesses 60 – confront witnesses 277 – to counsel 27, 43, 52 n. 201, 60, 93, 164, 164 n. 719, 165, 378 – defend oneself in person 235 – examine witnesses 91 n. 366, 150, 256 – full equality 230, 389 – legal assistance 27, 57, 160, 164, 164 n. 717, 165, 232 n. 1069, 233, 378, 389 – obtain attendance of witnesses 65, 270 – present evidence 11, 60, 122, 146, 171, 263, 267, 385, 493 – privacy 78 n. 305, 91, 93, 261, 390, 463, 469 – the recording of statements 28, 33, 46 nn. 182–183, 93 n. 379, 249, 272 – right to silence 63, 166, 226, 378, 389 right of – the accused 2, 27 n. 98, 28 n. 105, 48, 52, 58–60, 63, 72–73, 91 n. 366, 92, 95, 166, 222, 224, 226–230, 246, 250 n. 1161, 256, 279, 292, 472 – the investigated person 155, 160–161, 163–165 – the prisoner 328, 330–332 – the suspect 166

560

index

safe-conduct 78 n. 305 Security Council 9–10, 36 n. 139, 40, 45 n. 179, 62 n. 234, 238, 136 n. 593, 156 n. 668, 157 n. 669, 159, 174, 181, 184, 184 n. 846, 190 n. 874, 203–206, 208, 215, 268 n. 1271, 327, 353–354, 376–377, 403, 420, 484–486 self incrimination 49, 63, 63 n. 239, 64, 88 n. 341, 270, 274–275, 467–468, 520 sentence – aggravating circumstances 107–109, 109 n. 456, 295, 295 n. 1442, 296, 298 n. 1468, 503–504 – credit for time spent 112 – death penalty 10, 13, 15, 105, 105 n. 435, 106 n. 435, 136, 190, 293, 293 n. 1431 – enforcement 128, 131, 308 n. 1516, 327, 330, 332, 415–416, 526, 528–529 – fines 339 – imprisonment 3 n. 3, 130, 135, 295, 298 n. 1468, 311, 327, 330, 397, 399, 415 – mitigating circumstances 82 n. 320, 107, 107 n. 440, 108, 108 n. 443, 109, 109 n. 456, 110, 112 n. 475, 120, 289, 294–298, 298 n. 1468, 300, 503 – orders of forfeiture 300, 505, 511 – pardon and commutation 135 – reduction 195, 300, 328, 332, 332 n. 1662, 334, 334 n. 1674, 335–336, 361, 417–418, 531–532 – supervision of imprisonment 130, 416, 526 – review 322, 418, 531 – serving of 130, 138 sources of law 186 Standard Minimum Rules for the Treatment of Prisoners 65 n. 245, 132 n. 576, 331 state of imprisonment 128, 133 state sovereignty 180, 185 n. 851, 204 state and – collection of evidence 51 n. 196, 149, 157, 251–252, 286, 392, 432, 486, 489 – cooperation 158, 204–205, 207, 213, 271–272, 316, 342, 358, 377, 380–381, 404, 408, 412–413, 478, 480 – custodial 36, 155, 162–163, 163 n. 709, 169 n. 760, 382–383, 414, 490 – host state 220–221, 344, 415, 443, 482, 510, 518–521, 525 – implementation of legislation 257

– judicial assistance 26 n. 94, 32, 203–204, 209, 216, 251 n. 1167, 402, 512, 516 – non compliance 68 n. 253, 207–208, 215 – obligations 212, 40 n. 153, 205, 214, 270, 333, 338, 402, 410 – prison facilities 128, 333 – relation with international tribunal and Court 2, 26 n. 96, 164 statute of limitation 181, 192, 362, 528 sui generis system 147 summons 159, 161, 161 n. 696, 162, 167, 169, 251, 357, 376, 379, 380–383, 460, 487–488, 492, 494 suspect – definition 27 – rights of the suspect 2, 27, 30, 161 n. 695 testimony 12, 46, 47 n. 184, 52 n. 199, 61 n. 231, 64, 74–75, 77, 77 n. 302, 78 n. 305, 84 n. 329, 85 n. 330, 86 n. 333, 87, 87 nn. 335–336; 88, 88 nn. 337, 341; 89–90, 90 n. 365, 91, 91 nn. 365, 370; 92–95, 101, 129 n. 559, 144, 150–151, 157, 159, 175, 218, 241, 249, 250 n. 1161, 251–252, 256 n. 1202, 258, 262–264, 269–272, 272 n. 1304, 273–276, 276 n. 1338, 278–279, 279 n. 1354, 280, 282–285, 289, 291, 354–355, 358, 372, 379, 387, 388, 391–392, 408–409, 429–430, 444–445, 456–457, 463–464, 466–468, 474–475, 484, 500–501, 521 Tokyo Tribunal 8, 8 n. 13, 9–11, 12 nn. 32–33; 13–14, 14 nn. 43, 45; 15, 15 n. 53, 16, 23, 102, 115, 126, 147, 304 n. 1497, 341 – proceedings 14 – judicial standards 9–10 torture 18 n. 63, 19 n. 63, 20 n. 64, 33–34, 34 n. 134, 36 n. 138, 107 n. 440, 131, 167, 177, 177 n. 811, 178 n. 812, 179, 286, 286 n. 1397, 298, 331 n. 1655, 346–347, 350, 378 transcripts 22 n. 72, 28, 47 n. 183, 94 n. 382, 222, 257, 274 n. 1320, 277 n. 1342, 278 n. 1345, 282–283, 283 n. 1381, 284, 391, 464, 487, 500 transfer – of detained witness 29 n. 114, 88–89, 271, 271 n. 1296, 414 – of suspect 29, 32, 35, 37, 38 n. 146, 40, 40 n. 153, 42, 52 n. 199, 79 n. 310 – unlawful 179, 348

index – of prisoner 33, 128, 326, 329, 334, 336, 336 n. 1681, 337–338, 409, 416, 509, 519, 526, 528 translation 168, 168 n. 750, 210, 211, 222–223, 223 n. 1008, 256, 257 nn. 1206, 1207; 258, 258 n. 1212, 330, 378, 389, 402, 414, 429, 446, 454–455, 517, 519, 521, 524 trial – case presentation 68, 78, 82, 82 n. 320, 83, 83 n. 323, 89–91, 101–102, 123, 165 n. 724, 217, 239, 253, 287, 388, 464 – de novo 54 n. 203, 146, 305 n. 1503, 313, 313 n. 1543 – expeditious 73, 219, 221, 223, 247, 248, 265, 267, 274, 316, 386, 399, 472, 477, 482, 498 – fair 2–3, 13–14, 17, 23, 48, 53, 53 n. 202, 62, 64, 73, 80, 84, 87, 91, 93 n. 377, 104 n. 425, 118 n. 500, 136, 147, 148, 155, 158, 217, 224, 227–228, 228 nn. 1040, 1042; 231, 233–235, 237, 246, 251 n. 1164, 256, 264, 264 n. 1252, 267–268 n. 1278, 281–283, 391, 446 – in absentia 11, 13, 40, 42, 161, 171 n. 773, 226, 228–229 – joints trials 58–59, 72–73, 77, 77 n. 302, 100 n. 403, 126, 129 n. 559, 500 – inability to stand 225 – language of the proceedings 220, 222 – place of 386 – public 53, 92–93, 224–225 – records 78 n. 305, 95, 231, 408, 421, 428, 440, 443, 474, 486 tu quoque 15, 287, 287 n. 1400 Universal Declaration of Human Rights 132 n. 576, 189 n. 870, 331 n. 1655 United Nations Charter 184 victims – as a witness 23, 23 n. 79, 249 – compensation and reparations 79, 303, 339, 396, 481, 514

561

– definition 244, 246, 246 n. 1136, 431, 473 – protection 23 n. 79, 24, 26, 45, 46 n. 182, 78 n. 305, 91–92, 92 n. 372, 152 n. 662, 158, 211 n. 941, 219, 238, 247, 279, 281, 386, 408, 431, 473 – representation of 60, 80, 217, 234, 237, 247, 330, 476, 479, 480 victor’s justice 15 video conference link 75, 89–90 video link testimony 74–75, 463 video recording 47 n. 183, 225, 272 n. 1304, 487, 500 Vienna Convention on Diplomatic Relations 253, 253 n. 1181 warrant of arrest 23, 29, 32, 35, 35 n. 135, 40, 40 n. 156, 63, 99 n. 398, 161, 170, 341, 357, 358, 381–384, 406–407, 487, 490–492, 494–495, 519, 528 witness – anonymous witness 23, 91, 137 n. 596, 238, 280, 282 – confidentiality 91–93, 158, 217, 260, 263, 280–281 – cross examination 74, 77, 94, 94 n. 383, 273, 277 – depositions 74, 87, 89 n. 350, 283 n. 1381 – expert witness 69, 94, 95 n. 384, 151, 276–279 – false testimony 88, 90, 90 n. 365, 91, 218, 269, 392 – protections 23, 23 n. 79, 61 n. 231, 62, 91, 446 – questioning 91 n. 370 – right to call witnesses 74 – right to examine witnesses 74, 273, 281 – safe-conduct 78 n. 305 – solemn declaration 77 n. 299, 88, 88 n. 337, 90 n. 365, 258 n. 1212 – subpoena 68–69, 238, 267 n. 1268 – summons 23, 159, 161, 161 n. 696, 162, 167, 169, 251 – testimony of 47 n. 184, 77, 87, 87 n. 336, 93, 218, 269–271, 282–283, 387–388