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Rules of Procedure for the International Criminal Court: Problems to Address in Light of the Experience of the Ad Hoc Tribunals

Published online by Cambridge University Press:  21 May 2009

Vladimir Tochilovsky
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Extract

In July 1998, a United Nations Diplomatic Conference in Rome voted to adopt the Statute of the International Criminal Court. Rules of Procedure and Evidence are now required to effectuate proceedings and trials in the Court itself.

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Articles
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Netherlands International Law Review , Volume 46 , Issue 3 , December 1999 , pp. 343 - 360
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Copyright © T.M.C. Asser Press 1999

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References

2. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 (hereinafter: Rome Statute).

3. Hereinafter: ICC Rules.

4. Under the fifth resolution of the Conference, this task has been entrusted to a preparatory committee (hereinafter: ICC PrepCom).

5. Damaška, M.R., The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven and London, Yale University Press 1986) p. 3.Google Scholar

6. Hereinafter: ad hoc Tribunals.

7. The simple use of the term ‘litigation’ as a synonym for criminal proceeding sounds rather strange to a civil-law lawyer.

8. The reason was rather prosaic. The authors of An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (one of the authors, Virginia Morris, was a member of the drafting committee) explain that of the several states and organisations that submitted comments and draft provisions for the Rules, the United States submitted by far the most comprehensive set of proposed rules with commentary. This proposal was particularly influential because of the timeliness of the submission. Many of the proposals contained in the United States draft ultimately found their way into the rules adopted by the International Tribunal (see V. Morris and Scharf, M.P., An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 1 (Irvington-on Hudson, New York, Transnational Publishers 1995) p. 177).Google Scholar

9. Jacob, H., Justice in America: Courts, Lawyers, and the Judicial Process (Boston, Little, Brown 1984) p. 190.Google Scholar

10. Prosecutor v. Goran Jelisić, Decision on communication between parties and witnesses, Case No. IT-95–10-T, 11 December 1998, p. 2.

11. Prosecutor v. Kupreškić et al., Decision on communication between the parties and their witnesses, Case No. IT-95–16-T, 21 September 1998, p. 3.

12. See, for instance, Prosecutor v. Blaškić, Decision of Trial Chamber I to call General Milivoj Petković as a witness of the Trial Chamber, Case No. IT-95–14-T, 21 May 1999.

13. It was noted in the first annual report that ‘as at Nürnberg and Tokyo, there are no technical rules for the admissibility of evidence [at ICTY]. This Tribunal does not need to shackle itself to restrictive rules which have developed out of the ancient trial-by-jury system. There will be no jury sitting at the Tribunal, needing to be shielded from irrelevancies or given guidance as to the weight of the evidence they have heard. The judges will be solely responsible for weighing the probative value of the evidence before them’ (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, A/49/342, 29 August 1994, p. 24).

14. Prosecutor v. Erdemović, Joint separate opinion of Judge McDonald and Judge Vohrah, Case No. IT-96–22-A, 7 October 1997, pp. 4–5.

15. Plea-bargaining is a negotiation between the prosecution and the defence and is a regular procedure in some common-law systems, such as the United States where ‘the prosecution and the defence may engage in discussions with a view toward reaching a plea agreement. Typically, the prosecution offers one or more of the following concessions: (1) a reduction in charge; (2) dismissal of other pending charges; (3) a promise to recommend or not contest a particular sentence or range of sentences…’ (Whitebread, C.H. and Slobodin, C., Criminal Procedure: An Analysis of Cases and Concepts (Westbury, New York, The Foundation Press 1993) p. 627).Google Scholar

16. 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, A/49/342, 29 August 1994, p. 24.

17. See Prosecutor v. Erdemović, Sentencing Judgement, Case No. IT-96–22-T bis, 5 March 1998, pp. 20–21. Indeed, the prosecutor has no power to give effect to such an agreement and it certainly does not bind the judge. For instance in this agreement the parties ‘in full appreciation of the sole competence of the Trial Chamber to determine the sentence’ recommended that 7 years' imprisonment would be an appropriate sentence in this case. This agreement was departed from by the judges who imposed a different sentence (5 years’ imprisonment) (see the above Sentencing Judgement, pp. 20–23).

18. In accordance with Art. 65 (Proceedings on an admission of guilt) ‘[w]here the Trial Chamber is satisfied that the matters referred to in paragraph I are established, it shall consider the admission of guilt… and may convict the accused of that crime… 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:… order that the trial be continued under the ordinary trial procedures’ (emphasis added).

19. Art. 68. In fact, this Article reproduces wording of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985).

20. In every state on the territory of the former Yugoslavia victims are accustomed to enjoying special procedural rights in criminal proceedings. They have the right to present evidence and to put questions to the accused, witnesses and expert witnesses. Victims may make remarks and present clarification concerning accused and witnesses' testimony, and also make other statements and proposals. The victim or his attorney refers to the evidence of the criminal responsibility of the accused in his closing statement. Ironically, victims have none of these rights at the Tribunal that was established for the sole purpose of the prosecution of crimes committed against them on the territory of the former Yugoslavia.

21. Tochilovsky, V., ‘Victims’ Procedural Rights at Trial: Approach of Continental Europe and the International Tribunal for the Former Yugoslavia', in Dijk, J.J.M. van, et al., Caring for Crime Victims: Selected Proceedings of the 9th International Symposium on Victimology (Monsey, New York, Criminal Justice Press 1999) pp. 287–291.Google Scholar

22. Here is, for instance, the mechanism proposed by some delegates at the ICC PrepCom: ‘When a legal representative [of a victim] … wishes to question a witness, 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, who shall be allowed to make observations … The Chamber shall then issue a ruling on the request …’ (see Preparatory Commission's document PCNICC/1999/WGRPE/RT.5/ Rev.1, of 11 August 1999, p. 8).

23. Morris and Scharf, op. cit. n. 8, at p. 167. See also Bassiouni, M. Cherif, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, New York, Transnational Publishers 1996) p. 222.Google Scholar

24. Damaška, op. cit. n. 5, at p. 201.

25. Pursuant to Art. 54 of the Rome Statute the prosecutor shall ‘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’ (emphasis added).

26. That is why, for instance, reciprocal discovery obligation by the defence is not an issue in civil-law jurisdictions. The defence counsel is not supposed to conduct an investigation there. If the defence counsel needs, for example, a witness to be interviewed, it will be conducted by a proper investigative body (such as the prosecutor's office, investigative judge, etc.) rather than by the defence counsel itself.

27. Prosecutor v. Kupreškić et al., Transcript, Case No. IT-95–16-T, 27 August 1998, pp. 1220–1221.

28. See Rule 54 of the Statute. Interestingly, the Rome Conference did not go as far as to provide for an obligation of the prosecution to undertake some investigative acts on a request of the suspect, which is similar to obligation of the state investigative bodies in civil-law jurisdictions. Initially, it was proposed at the Preparatory Committee, that ‘a suspect may request the Preliminary Investigation Chamber to enjoin the Prosecutor accomplish certain acts’ and ‘the Prosecutor shall be required to accomplish any act which the Preliminary Investigations Chamber enjoins him to carry out’ (Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 11 (Compilation of proposals), General Assembly Official Records, Fifty-first Session, Supplement No. 22A (A/51/22) (New York, United Nations 1996) p. 115). The Rome Conference, however, did not accept such an approach. Art. 57 of Rome Statute is less definite in this regard.

29. Emphasis added. Prosecutor v. Kupreškić et al., Decision on communication between the parties and their witnesses, Case No. IT-95–16-T, 21 September 1998, p. 3.

30. To be more precise, Art. 58 refers to ‘crimes’ rather than ‘charges’ (‘The warrant of arrest shall contain: … a specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and a concise statement of the facts which are alleged to constitute those crimes’). As an alternative to a warrant of arrest, Art. 58 of the Statute provides for a summon for the person to appear. The summon shall also contain a specific reference to the crimes which the person is alleged to have committed; and a concise statement of the facts which are alleged to constitute the crime.

31. Para. 3 of Art. 58 of the Rome Statute.

32. See para. 6 of Art. 58 of the Rome Statute.

33. In accordance with Art. 61 ‘[w]ithin 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’ (emphasis added). It is noteworthy that in contrast to Art. 58 which refers to ‘crimes’, Art. 61 refers to confirmation of the ‘charges’.

34. Art. 61. At the same time, this Article outlines the scope of such a hearing (emphasis added): ‘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 charges.’ Such a threshold will prevent from possible turning such a preliminary hearing into a ‘minitrial’.

35. Commenting on original provision of Rule 47, Bassiouni notices ‘thus the suspect, or person to be charged, does not have the opportunity to be heard during this stage of the process. This is generally the case in common-law systems where grand jury proceedings are held in secret’ (Cherif Bassiouni, op. cit. n. 23, at p. 900).

36. The amendment provides that ‘[t]he reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide …’

37. Prosecutor v. Kordić, Čerkez, Order concerning documents transmitted by the Defence to the Judge reviewing the proposed amended indictment, Case No. IT-95–14/2-PT, 27 August 1998, p. 2. A similar position had been taken in this case by the Trial Chamber (see Prosecutor v. Kordić, Čerkez, Prosecutor's response to request for leave to file a supplement to the response in opposition to the Prosecutor's motion for leave to amend the indictment and request for access to the confidential material, Case No. IT-95–16-T, 7 July 1998, p. 3).

38. For the Germans proposal to Art. 44 of the Draft Statute for an International Criminal Court see Report of the Preparatory Committee on the Establishment of an International Criminal Court, op. cit. n. 28, at p. 207.

39. This wording is similar to one in the French law, where a judge is expected to ‘take every step which he believes to be necessary to discover the truth’ (Art. 310 of the Code of Criminal Procedure).

40. In accordance with Art. 74, the decision shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions.

41. 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, A/49/342,29 August 1994, p. 24.

42. Rule 85 of the ICTY Rules and Rule 85 of the Rwanda Rules. The reaction of a common-law commentator to this rule was quite predictable, ‘it is hoped that this provision will not be interpreted as a license for judges to descend pell-mell into the area of trial combat [!] and conduct the questioning of witnesses unrestrained’ (D.D. Ntanda Nsereko, ‘Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, 5 Criminal Law Forum (1994) p. 538).

43. Emphasis added. The Prosecutor v. Tadić, Opinion and Judgement, Case No. IT-94–1-T, 7 May 1997, pp. 87–89.

44. Pursuant to amended Rule 90 (G)(i) ‘the Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth.’

45. Emphasis added. Prosecutor v. Delalić et al., Decision on prosecution's application for leave to appeal pursuant to Rule 73, Case No. IT-96–21-AR73, 16 December 1997, p. 4. It is interesting to note that the trial then continued until October 1998. Such an approach is rather alien for the civil-law proceedings. Speaking, for instance, on ‘surprise evidence’, Damaška remarked ‘he [the continental judge] cannot “punish” a party by refusing to hear a surprise witness. Such a ruling would be thought to violate the judge's duty to ascertain the truth’ (M. Damaška, ‘Evidentiary Barriers to Conviction and two Models of Criminal Procedure: A Comparative Study’, 121 U PA. L Rev. (1973) p. 506 at p. 534).

46. Prosecutor v. Tadić, Decision on Appellant's motion for the extension of the time-limit and admission of additional evidence, Case No. IT-94–1-A, 15 October 1998, pp. 14–15.

47. Art. 84.

48. See, for instance, Rule 119 of the ICTY Rules (‘Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or … the Prosecutor, may make a motion to that Chamber for review of the judgement’ (emphasis added).

49. Code of Criminal Procedure (StPO), Section 244.

50. M.E. Frankel, ‘The Search for Truth: An Umpireal View’, 123 U PA. L Rev. (1975) p. 1042.

51. Prosecutor v. Jean-Paul Akayesu, Decision by the Tribunal on its request to the Prosecutor to submit the written witness statements, Case No. ICTR-96–4-T, 28 January 1997, p. 2.

52. Prosecutor v. Slavko Dokmanović, Order, Case No. IT-95–13a-PT, 28 November 1997.

53. For instance, the prosecution will not call witnesses whose statements contradict prosecution's version of the event. Subsequently, those statements will not be given to judges. Indeed, the prosecution will have to disclose those statements to the defence. However, the latter is usually quite reluctant to call such witnesses, being afraid that they may change their statements and consolidate prosecution case. As a result, the judges will never know of the existence of such witnesses.

54. ICTY Bulletin, No. 21,27 July 1998, p. 1.

55. See Rule 73 bis and 73 ter of the ICTY Rules.

56. Prosecutor v. Delalić et al., Decision on the motion of the joint request of the accused persons regarding the presentation of evidence, dated 24 May 1998, Case No. IT-96–21-T, 12 June 1998, p. 11.

57. If ICC Rules of Procedure do not answer this question it may remain open for the judicial interpretation as it happened in the ad hoc Tribunals.

58. In fact, the ICC prosecutor will depend upon state's cooperation much more than the prosecutor of the both ad hoc Tribunals. See, for instance, Art. 54 Duties and powers of the prosecutor with respect to investigations. In accordance with this Article, the prosecutor may conduct investigations on the territory of a state in accordance with the provisions of Part 9 which governs cooperation and judicial assistance.

59. The Statute provisions in this regard are rather controversial. First, the prosecutor ought to prove that the state is unwilling genuinely to carry out the investigation or prosecution (see Part 2 of the Rome Statute). As soon as the prosecutor has managed to prove this he has to seek cooperation of the ‘unwilling’ state in his investigation (see Art. 54 and Part 9 of the Statute).

60. Art. 72 provides as following: ‘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 Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by co-operative means … Once all reasonable steps have been taken to resolve the matter through co-operative 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.’

61. See Art. 72 of the Rome Statute.

62. By the Security Council Resolution 808 (1993) of 22 February 1993, the Secretary-General was requested ‘to submit for consideration by the Council at the earliest possible date, and if possible no later than 60 days after the adoption of the present resolution, a report on all aspects of this matter, including specific proposals and where appropriate options for the effective and expeditious implementation of the decision [to establish an international tribunal]. The Report, which included draft ICTY Statute, was presented by the Secretary General to the Security Council on 3 May 1993.

63. ‘While there was some dissension among the members of the Security Council, there was also a strong hesitancy to open the draft statute to modification which could resulted in lengthy negotiations and undesirable political compromises. In an innovative approach to this dilemma, the United States persuaded France, the United Kingdom and Russia to make similar statements interpreting various provisions of the Statute when voting on Resolution 827’ (Morris and Scharf, op. cit. n. 8, at pp. 33–34).

64. ‘While the framework and organisational structure of the Tribunal and its processes … were established by the Statute and based upon the [Secretary General's] report, the contours of that framework have been completed by the Rules … The [Office of Legal Affairs] team members who prepared the [Secretary General's] Report, came mostly from the common law tradition. The majority of the judges who drafted the Rules, moreover, also come from common law systems … Judge Gabrielle Kirk-McDonald (USA) … has brought with her a complete set of proposed rules prepared by a special committee of the ABA …’ (Cherif Bassiouni, op. cit. n. 23, at p. 863).

65. There may be a temptation to let the judges decide about what kind of procedure to apply in each particular case. Art. 64.8(b) of the Rome Statute authorises the presiding judge to ‘give directions for the conduct of proceedings.’ However, such a case-by-case approach would result in confusion and parties' uncertainty in preparation of their cases.

66. Although, one can find that professional judges' of the Tribunals keep adhering to some common-law precautions which are designed to shield laymen from unreliable information. For instance, they still request an accused, who wants make a statement, to take a solemn declaration. To a certain extend such a practice is based on the Rule 85 provision that treats a testifying accused as a witness (‘If the accused so desires, the accused may appear as a witness in his or her own defence’). It is noteworthy that the Rome Statute provides for an accused right to make an unsworn statement in his defence at trial (Art. 67 Rights of the accused).

67. One should also be aware of some of the risks of the mere transplantation of incompatible elements into a newly created jurisdiction. For instance, submission to the Trial Chamber of the ‘dossier’ the prosecutor compiled in its one-sided investigation, may be misleading and prejudicial to the accused; prosecutor's responsibility for the presentation of his case may conflict with the rights of the victims to intervene in the course of such a presentation.