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The Rules of Procedure and Evidence of the International Criminal Court1

Published online by Cambridge University Press:  17 February 2009

Silvia A. Fernández de Gurmendi  and
Håkan Friman
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Extract

On 30 June 2000, the Preparatory Commission for the International Criminal Court approved by consensus the Draft Rules of Procedure and Evidence (hereinafter ‘the Rules’). Their adoption followed months of extensive negotiations during which delegations struggled to supplement the Rome Statute of the International Criminal Court (hereinafter, ICC or the Court) while fulfilling the — sometimes somewhat contradictory — objectives of safeguarding the integrity of the Statute and ‘enhancing the effectiveness and acceptance of the Court’.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 3 , December 2000 , pp. 289 - 336
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2000

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References

4. Finalized draft text of the Rules of Procedure and Evidence. Addendum to the Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.1 of 12 July 2000.

5. Adopted at Rome on 17 July 1998, UN Doc. PCNICC/1999/INF/3 of 17 August 1999 (with corrections).

6. As mandated to the Preparatory Commission by GA Res. 53/105 of 8 December 1998. See also GA Res. 54/105 of 9 December 1999.

7. Finalized draft text of the Elements of Crimes, Addendum to the Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2 of 6 July 2000.

8. See Art. 30 of the Statute of the International Court of Justice and Art. 16 of the Statute of the International Tribunal for the Law of the Sea.

9. Hereinafter ad hoc Tribunals or ICTY and ICTR.

10. See Art. 15 of the ICTY Statute and Art. 14 of the ICTR Statute.

11. For a detailed analysis of the negotiations of the procedural aspects of the Rome Statute, see de Gurmendi, S.A. Fernández, ‘International Criminal Law Procedures, The Process of Negotiations’, in Lee, R.S., ed., The International Criminal Court — The Making of the Rome Statute — Issues, Negotiations, Results (The Hague, Kluwer Law International 1999) pp. 217–227Google Scholar. For a summary of the debates before the Rome Conference, see Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN General Assembly. Official Records, Fiftieth Session, Supplement No. 22, A/50/22 (1995) and Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume I (Proceedings of the Preparatory Committee during March-April and August 1996, UN General Assembly. Official Records. Fifty-first Session. Supplement No. 22 (A/51/22) at pp. 47–48.

12. This was certainly also part of the rationale for developing detailed definitions of the crimes within the jurisdiction of the Court and for the decision to supplement them with Elements to be drafted by States Parties.

13. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Done at Rome on 17 July 1998, UN Doc. A/CONF.183/10*, Annex I.

14. Art. 52(3).

15. Draft set of rules of procedure and evidence for the International Criminal Court, working paper submitted by Australia and the Netherlands, UN Doc. A/AC.249/L.2 (1996).

16. Proposal by Australia. Draft Rules of Procedure and Evidence for the ICC, UN Doc. PCNICC/1996/DP.l (26 January 1999). Due to the fact that they were intended to serve as a basis for the discussions, the Draft Rules were accompanied by a disclaimer indicating that the approach taken on any particular issue did not necessarily reflect the final view of Australia.

17. Proposals by France were contained in numerous documents. The General Outline of the Rules of Procedure and Evidence was contained in UN Doc. PCNICC/1999/DP.2 (1 February 1999).

18. The ICTY Rules were initially adopted on 11 February 1994 and have been frequently amended, most recently on 14 July 2000, UN Doc.IT/32Rev.18. The ICTR Rules were adopted on 5 July 1995 and last amended on 26 June 2000, UN Doc. ITR/3/Rev.8.

19. In particular, three informal meetings were instrumental in expediting discussions of certain aspects of the Rules: the informal intersessional meeting of the Preparatory Commission held at the International Institute of Higher Studies in Criminal Sciences of Siracusa, Italy (21–22 June 1999); the international seminar on victims' access to the International Criminal Court held in Paris (27–29 April 1999); the intersessional meeting held at Mont Tremblant, Canada (30 April-5 May 2000).

20. For a detailed presentation and analysis of the Rules, see Lee, R.S., de Gurmendi, S.A. Fernández, von Hebel, H., Friman, H. and Robinson, D., eds., The International Criminal Court — Elements of Crimes and Rules of Procedure and Evidence (Irvinginton-on-Hudson NY, Transnational Publishers Inc., forthcoming in 2001)Google Scholar.

21. Respectively, Parts 9 and 10 of the Statute.

22. Note by the Secretariat contained in UN Doc. PCNICC/1999/L.2 (26 January 1999).

23. One noteworthy matter referred to the Rules of Procedure of the Assembly of States Parties was a proposal submitted by the United States relating to Art. 121 on amendments, UN Doc. PCNICC/2000/WGRPE(13)/DP.1 (8 June 2000).

24. Addendum to the Report of the Preparatory Commission for the International Criminal Court, supra n. 4, at p. 1.

25. For the negotiating history of the Statute, see Kirsch, P. and Holmes, J.T., ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, 93 AJIL (1999) pp. 2–12CrossRefGoogle Scholar.

26. For a detailed negotiating history of Art. 15, see S.A. Fernández de Gurmendi, ‘The Role of the International Prosecutor’, in Lee, ed., op. cit. n. 11, pp. 175–189.

27. Art. 15(4).

28. A proposal submitted by France aiming at merging the proceedings under Arts. 15, 18 and 19, which was not adopted, nevertheless facilitated better understanding on the relationship between them, UN Doc. PCNICC/1999/WGRPE/DP.43 (23 November 1999).

29. See Rule 48, which refers to the factors set forth in Art. 53(1)(a) to (c).

30. See Art. 18(1).

31. For a more detailed background, see F. Guariglia, ‘Investigation and Prosecution’, in Lee, ed., op. cit. n. 11, pp. 227–238, and Behrens, H.-J., ‘Investigation, Trial and Appeal in the International Criminal Court Statute (Parts V, VI, VIII)’, 6 Eur. J Crime, Crim. L & Crim. Jus. (1998) pp. 429–441Google Scholar.

32. This was particularly the case regarding disclosure of evidence and whether the record of the pre-trial proceedings should also contain evidence and be transferred to the Trial Chamber (a ‘dossier’), see Rules 76–84, 121 and 131.

33. See Art. 61(5) and (6), and Rules 121–122. Also note that Rules 76–84 on disclosure are, in principle, applicable both to the pre-trial and trial stages.

34. Rules 123–126. Similarly, Rule 61 of the ICTY and ICTR Rules provides for confirmation of an indictment, which is a precondition for the issuance of an arrest warrant, without the accused being present. This has been practiced in a number of cases, most notably by the ICTY in cases against certain leaders, see Prosecutor v. Karadžić and Mladić, IT-95–18, Prosecutor v. Milošević et al, IT-99–37, and recently Prosecutor v. Biljana Plašvić, IT-00–40 (indictment issued under seal on 7 April 2000). However, Rule 61 and its application has been the subject of considerable debate and some critical comments, e.g., see King, F. Patel, ‘Public Disclosure in Rule 61 Proceedings Before the International Criminal Tribunal for the Former Yugoslavia’, 29 NY Univ. JIL & Pol. (1997) pp. 523–554Google Scholar; Thieroff, M. and Amley, E.A., ‘Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the former Yugoslavia and Rule 61’, 23 Yale JIL (1998) pp. 231–274Google Scholar; Furuya, S., ‘Rule 61 Procedure in the International Criminal Tribunal for the Former Yugoslavia: A Lesson for the ICC’, 12 Leiden JIL (1999) pp. 635–669CrossRefGoogle Scholar.

35. See Tochilovsky, V., ‘Rules of Procedure for the International Criminal Court: Problems to Address In Light of the Experience of the Ad Hoc Tribunals’, 46 NILR (1999) pp. 343–360CrossRefGoogle Scholar.

36. Art. 64(8)(b).

37. For a detailed story of the negotiations on Penalties, see R.E. Fife, ‘Penalties’, in Lee, op. cit n. 11, pp. 319–343.

38. In addition, the development of rules of evidence also highlighted important differences between different legal traditions which had to be reconciled. There is precedence, however, and a mixed regime with few provisions on evidence also apply in the ICTY and ICTR; see May, R. and Wierda, M., ‘Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha’, 37 Columbia JTL (1999) pp. 725–765Google Scholar; for a critical view, see Bryan, I. and Rowe, P., ‘The Role of Evidence in War Crimes Trials: The Common Law and the Yugoslav Tribunal’, 2 YIHL (1999) pp. 307–323CrossRefGoogle Scholar.

39. Rule 73(1) and (3). This type of privilege as well as others were raised at the Rome Conference but the question was referred to the Rules, see UN Doc. A/CONF.183/C.1/L.2/Add.1 (29 June 1998) p. 5.

40. Rule 75.

41. See infra under section 3.7.

42. Rule 73(4)–(6).

43. Prosecutor v. Simić, Simić, Tadić, Todorović and Zarić, IT-95–9-PT, Decision of 27 July 1999 on the Prosecution motion under Rule 73 for a ruling concerning the testimony of a witness. For a discussion on this issue, see Stroun, J., ‘International criminal jurisdiction, international humanitarian law and humanitarian action’, 37 IRRC No. 321 (1997) pp. 623–634CrossRefGoogle Scholar; Jeannet, S., ‘Recognition of the ICRC's long-standing rule of confidentiality — An important decision by the International Criminal Tribunal for the former Yugoslavia’, 82 IRRC No. 838 (2000) pp. 403–425Google Scholar; Hampson, F.J., ‘The International Criminal Tribunal for the Former Yugoslavia and the Reluctant Witness’, 47 ICLQ, (1998) pp. 50–74CrossRefGoogle Scholar; Bank, R., ‘Cooperation with the International Criminal Tribunal for the Former Yugoslavia in the Production of Evidence’, 4 MPYBUNL (2000) pp. 233–269Google Scholar.

44. Rules 63(4) and 70–72.

45. The term ‘suspect’ is used here for convenience although it is not used in the Statute or in the Rules. Instead Art. 55(2), refers to the situation ‘[w]here there are grounds to believe that a person has committed a crime within the jurisdiction of the Court.’

46. In particular Arts. 9 and 14 of the ICCPR. Many of these rights are also included in regional human rights instruments, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4 November 1950 (and later amended), the African Charter on Human and Peoples Rights (African Charter) of 26 June 1981, and the American Convention on Human Rights (ACHR) of 22 November 1969.

47. See further, H. Friman, ‘Rights of Persons Suspected or Accused of a Crime’, in Lee, ed., op. cit. n. 11, pp. 247–262. See also commentaries to Art. 55, by C.K. Hall, and to Art. 67 by Schabas, W.A., in Triffterer, O., ed., Commentary on the Rome Statute of the International Criminal Court — Observers' Notes, Article by Article (Baden-Baden, Nomos Verlagsgesellschaft 1999) pp. 727–734 and pp. 845–868Google Scholar.

48. Art. 54(1)(a).

49. For an analysis of the procedures of the ICTY compared with international human rights, see Cassese, A., ‘Opinion: The International Criminal Tribunal for the Former Yugoslavia and Human Rights’, European Human Rights Law Review No. 4 (1997) pp. 329–352Google Scholar.

50. Rule 121(1). The Statute does not define the term ‘accused’ and it was considered prudent to apply the rights set forth in Art. 67 from the person's arrival at the Court in spite of the fact that the formal charges will not yet have been served and the person is not required to ‘plead’ at the first appearance. However, according to Art. 58 the arrest warrant or summons to appear, which must be served upon the person, shall contain what might be called ‘preliminary charges’ and, thus, the person arrested or summoned should, in principle, enjoy the rights contained in Art. 67 upon arrival at the Court.

51. Art. 55(2)(c). See also Art. 67(1)(d).

52. Art. 67(1)(b).

53. Rule 73. For further discussions of this rule, see supra, under section 2.3.

54. Rules 44–46 of the ICTY and the ICTR Rules respectively. On the assignment of defence counsel in the Tribunals, see Wladimiroff, M., ‘The Assignment of Defence Counsel Before the International Criminal Tribunal for Rwanda’, 12 Leiden JIL (1999) pp. 957–968CrossRefGoogle Scholar. See also the ICTY Trial Chamber's decision of 3 September 1999 reversing the Registrar's decision of 6 August 1999 to withdraw the assignment of counsel for the accused in Prosecutor v. Kupreškić et al, IT-95–16, and for one accused in Prosecutor v. Kordić and Čerkez, IT-95–14/2.

55. Rule 21. The last requirement for a nominated counsel implies, inter alia, willingness to accept the fees and other conditions for remuneration that are established by the Court.

56. Rule 117.

57. Rule 22.

58. Rule 8.

59. Rule 20.

60. In respect of these so-called ‘unique investigative opportunities’, it is envisaged in Art. 56 that it is the Prosecutor who primarily conducts the investigation under the supervision of the Pre-Trial Chamber but also that a suspect, who is available to the Court, shall be heard. Rule 114 elaborates further on matters of consultation with the defence regarding the measures and the modalities of their implementation.

61. Rule 116. A recent example from the ICTY may be found in Prosecutor v. Simić et al, IT-95–9, Decision by the Trial Chamber of 18 October 2000 on a motion for judicial assistance to be provided by SFOR and others (appealed by the Prosecutor).

62. Proposals to insert the defence counsel in addition to the suspect or accused in provisions relating to notification were rejected since the general meaning was that the counsel is the ‘voice of the person concerned’ and that notifications to that person would normally be done through his or her counsel.

63. Art. 55(2)(d).

64. Rule 112.

65. Rule 114.

66. Rule 121.

67. Rules 123–126.

68. Rule 146.

69. Rule 224.

70. Art. 67(1)(a).

71. Art. 55(2)(a).

72. Rule 111.

73. Art. 58(3).

74. Arts. 91–92.

75. Respectively, Rules 187 and 117(1). These obligations also extends to ‘any relevant provisions of the Statute’, particularly, provisions spelling out rights of the accused; see further regarding self-incrimination, infra this section under 8.

76. Art. 60(1).

77. Rule 121(1).

78. Art. 61.

79. Art. 61(3).

80. Rule 121.

81. Art. 61(2).

82. Emphasis added.

83. Rule 123(1).

84. E.g., Art. 9(1) of the ICCPR, Art. 5(1) of the ECHR, Art. 6 of the African Charter, Art. 7(2)–(3) of the ACHR.

85. Respectively, Arts. 58, 59 and 60.

86. See La Rosa, A.-M., ‘A tremendous challenge for the International Criminal Tribunals: reconciling the requirements of international humanitarian law with those of fair trial’, 37 IRRC No. 321 (1997) pp. 635–650CrossRefGoogle Scholar.

87. See Rule 65(B) of the ICTY Rules as amended on 17 November 1999 (IT/32/Rev.17). The determination whether to grant provisional release must now be made in light of the particular circumstances of each case and the criteria set forth in the rule. See also the Trial Chamber's two decisions on 4 April 2000 in Prosecutor v. Simić et al, IT-95–9, Decision on Miroslav Tadić's and Simo Zarić's applications for provisional release, where release was granted. On 19 April 2000, the Appeals Chamber rejected the Prosecutor's application for leave of appeal against the decision. Thereafter, the Trial Chamber, on 29 May 2000, granted provisional release to another co-accused in the same case. For all those released the Trial Chamber has imposed different requirements restricting their liberty. Cf., Rule 65(B) of the ICTR Rules which has not been amended.

88. Art. 58.

89. Art. 59(4) and Rule 117.

90. Rule 118.

91. One may ask whether this very specific provision, which only aims at a release, also leaves room for the so-called ‘abuse of power doctrine’ that the ICTR has applied in one case, see Prosecutor v. Barayagwiza, ICTR-97–19-AR72. Besides release, this doctrine also offers a dismissal of the charges, with or without prejudice to the Prosecutor, as a possible remedy. The Appeals Chamber's decision of 3 November 1999, later reversed on review on 31 March 2000.

92. Art. 67(1)(b).

93. See supra this section under 1.

94. In particular, see Arts. 61 and 64.

95. See Rule 121 (for the confirmation hearing) and Rule 84 (for trial).

96. Art. 67(1)(e).

97. Art. 69.

98. See Arts. 64(6)(d) and 69(3). While this power undoubtedly applies at trial, it is less certain that it is also applicable at the confirmation hearing: to be sure, Art. 69 generally also applies for the purpose of confirmation of charges, see Rule 122(9), but it is not obvious that the requirement for the Court calling evidence, namely ‘that it considers necessary for the determination of the truth’ (Art. 69(3)), allows for the exercise of this power in a proceeding where the purpose is to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged (Art. 61 (7)).

99. Rules 76–84.

100. Art. 61(5).

101. Rule 84.

102. Rule 76.

103. Rule 121(6) and Rule 84.

104. Rule 79.

105. Rules 77 and 78.

106. Art. 67(2).

107. Art. 54(1)(a).

108. Rule 83.

109. Arts. 57(3)(b) and 64(6).

110. Arts. 61(3) and 64(3)(c).

111. Rules 81 and 82.

112. See in particular, the discussion of ‘anonymous witneses’ under section 4.4.3, infra.

113. Rules 88–89, see infra under section 4.4.2.

114. Rules 67 and 68. A testimony for later use in the proceedings or at trial may be taken before the actual investigation begins (Art. 15(2) and Rule 47) or in respect of a unique investigative opportunity (Art. 56, Rule 114). In both instances, the right to legal representation to protect the interests of the defence or future defence is provided for. In several cases before the European Court of Human Rights, the Court has affirmed that the presentation of prior recorded testimony as evidence may be incompatible with the right to a fair trial if the defence is not given an opportunity to examine and question the witness at any stage, e.g., see Windisch v. Austria (Judgement of 27 September 1990, Series A, No. 186); Delta v. France (Judgement of 19 December 1990, Series A, No. 191-A); Isgro v. Italy (Judgement of 19 February 1991, Series A, No. 194-A); Asch v. Austria (Judgement of 26 April 1991, Series A, No. 203).

115. Rule 140, see supra under section 2.2.

116. Art. 67(1). For an analysis of this principle and restrictions that may be imposed see infra section 4.4.

117. Art. 67(1)(c).

118. E.g., see Art. 14(3)(c) of the ICCPR, Art. 6(1) of the ECHR, Art. 7(1)(d) of the African Charter, and Art. 8(1) of the ACHR.

119. Rule 101.

120. Rules 121 and 84, see supra under this section 5.

121. Rules 121(2)(b)and 132(2).

122. E.g., see Art. 14(3)(g) of the ICCPR, Art. 8(2)(g), of the ACHR, Art. 21(4)(g) of the ICTY Statute, and Art. 20(1)(g) of the ICTR Statute.

123. Respectively, Art. 55(2)(b) and Art. 67(1)(g).

124. Rule 74.

125. While a voluntary testimony by the accused might be allowed, it is clear that an accused can not be compelled to testify in the trial against himself or herself, see Art. 67(1)(g). This must apply regarding all co-accused tried together in a joint trial. However, it is less clear that this right also applies to a co-accused in respect of a testimony against another co-accused who is tried separately, which, if allowed, would affect the rights of both accused and have a material impact on whether to conduct separate or joint trials. In addition, the immunity provided for in Rule 74 could then be used as a tool similar to plea-bargaining, a legal mechanism that was opposed by many in the negotiations of the Statute and the Rules. The most explicit example is Art. 65(5), which makes clear that no discussion between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall be binding on the Court. On the other hand, at the ICTY, it is the Trial Chamber that decides whether to accept a guilty plea and determines the sentence (rules 62bis and 100 of the ICTY Rules), but it may be noted that this has not hindered so-called ‘plea arrangements’; see Prosecutor v. Erdemović, IT-96–22-Tbis, Sentencing judgement of 5 March 1998, para. 18, and more recently in Prosecutor v. Simić et al, IT-95–9-PT, where the Prosecutor and the accused Stevan Todorović presented such an arrangement at a hearing before the Trial Chamber on 13 December 2000 (ICTY Press Release JL/P.I.S./549-e).

126. Art. 67(1)(h), providing the accused with the right to make an unsworn oral or written statement in his or her defence, does not preclude the Court from allowing the accused to testify under oath instead.

127. Art. 93(1)(e).

128. Rules 74(1) and 190.

129. Rules 65 and 74.

130. Rule 75.

131. Art. 67(1)(f).

132. Art. 55(1)(c).

133. Rule 42.

134. Rule 76(3).

135. Rules 117(1) and 187.

136. Rule 190.

137. This requirement for translations is applicable when ‘necessary to meet the requirements of fairness’ under Art. 67(f). This caveat reflects the fact that illiteracy and other reasons may make such a translation unnecessary.

138. Art. 50.

139. Rule 41.

140. For a general discussion, see Schabas, W.A., ‘Sentencing by International Tribunals: A Human Rights Approach’, 7 Duke JC&IL (1997) pp. 461–517Google Scholar.

141. Art. 24 of the ICTY Statute, Art. 23 of the ICTR Statute and Rule 101 of their respective Rules.

142. Arts. 77 and 78; see also Art. 76 on the procedures for sentencing.

143. Rules 145–148. In addition, requirements regarding enforcement are set forth in the Rules, see under 3.11, infra.

144. Rules 173–174.

145. Rule 173(4).

146. The first two grounds are taken almost verbatim from Arts. 9(5) and 14(6) of the ICCPR.

147. Parts 9 and 10 of the Statute.

148. Rules 196–197.

149. Rule 203.

150. Rule 210(1)(b).

151. Art. 106(3).

152. Rule 211(1)(a).

153. Rules 223 and 224. This review mechanism was an important element in finding solutions in the Statute regarding the highly contentious issues of capital punishment and life imprisonment, see Fife, loc. cit. n. 37, at pp. 337–338.

154. For a comparative analysis, see van Boven, T., ‘The Position of the Victim in the Statute of the International Criminal Court’, in von Hebel, H.A.M., Lammers, J.G. and Schukking, J., eds., Reflections on the International Criminal Court — Essays in Honour of Adriaan Bos (The Hague, T.M.C. Asser Press 1999) pp. 77–89CrossRefGoogle Scholar. On the importance of reparations to victims in a war-ravaged society, see Rosand, E., ‘The Right to Compensation in Bosnia: An Unfulfilled Promise and a Challenge to International Law’, 33 Cornell ILJ (2000) pp. 113–158Google Scholar.

155. Rule 2 (A) of the ICTY Rules and ICTR Rules respectively.

156. Report of the Preparatory Committee, Vol. I, supra n. 11, at p. 59.

157. GA Res. 40/34 (29 November 1985).

158. Proposal submitted by Bahrain, Jordan, Kuwait, Libyan Arab Jamahiriya, Oman, Quatar, Saudi Arabia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates, UN Doc. PCNICC/2000/WGRPE(2)/DP.4 (13 June 2000).

159. Art. 15(3).

160. Art. 19(3). However, proposals in order to allow victims to also participate in proceedings for preliminary rulings regarding admissibility of a case under Art. 18 were not adopted by the Preparatory Commission.

161. Rules 87–88. For a description of these rules, see infra under section 4.4.

162. Rule 119.

163. Art. 75. See infra under section 4.3.

164. Rule 50(1).

165. Rule 59(1).

166. Rule 119(3).

167. Rule 89(1).The application may also be made by someone else on behalf of the victim (Rule 89(3)). A person who is unable, due to a disability or illiteracy, to make a written request or application, may make the application in audio, video or other electronic form instead (Rule 102).

168. Exception from this requirement may be made due to, inter alia, safety and security concerns (Art. 68(1) and Rule 89(1)). However, the rights of the accused must of course be respected. Therefore, such concerns should not preclude notice to the accused but may be accomodated, for example, by providing the defence with an edited or summarized copy of the application by victims.

169. Rule 89(2).

170. Rule 89(4).

171. Rule 91(1).

172. Rule 93 explicitly points out the Pre-Trial Chamber's review of a decision by the Prosecutor not to initiate an investigation or not to prosecute (Rules 107 and 109), a confirmation hearing without the accused being present (Rule 125), amendment of charges (Rule 128), a question of joint or separate trials (Rule 136), a decision on an admission of guilt (Rule 139) and an assurance of so-called ‘safe conduct’ for a witness (Rule 191).

173. Rule 90.

174. Distinct interests could be, for example, those of victims of sexual or gender violence or children who are victims of violence (see Rule 90(4) referring to Art. 68(1)).

175. Rules 22(1) and 90(6).

176. Rule 91.

177. Rule 91(2).

178. Rule 91(3).

179. Rule 92.

180. See C. Muttukumaru, ‘Reparation to Victims’, in Lee, ed., op. cit. n. 11, at p. 268.

181. Arts. 75 and 79. For a detailed analysis, see Shelton, D.L. and Ingadottir, T., The International Criminal Court: Reparations to Victims of Crimes (Article 75 of the Rome Statute) and the Trust Fund (Article 79) — Recommendations for the Court Rules of Procedure and Evidence (Centre on International Cooperation, New York University 1999)Google Scholar.

182. Arts. 57(3)(e), and 75(4).

183. Rule 94(1).

184. Rule 94(2).

185. Rule 97(1).

186. Rule 98(3).

187. Rule 98(2).

188. Rule 98(4).

189. Rule 99(1).

190. Art. 68(1) and (5), as well as Art. 69(2) in fine.

191. E.g., see Art. 10 of the Universal Declaration, Art. 14 of the ICCPR, Art.6 of the ECHR, and Art. 8(5) of the ACHR.

192. Rule 87(2)(a). However, a motion or request may be filed under seal and a hearing may be held in camera, Rule 87(2)(e) and (3).

193. See Art. 68(1) and Art. 54(1)(b).

194. The protection of children and persons with disabilities was the spectific subject of a Seminar held during an Intersessional Meeting of the Preparatory Commission in Siracusa, Italy from 31 January to 5 February 2000. The Seminar generated some proposals reflected in the current Rules.

195. See Rule 88(2), which besides in camera hearings also provides for ex parte hearings.

196. The ECHR has been interpreted by the European Court for Human Rights as allowing witness anonymity but only under strict circumstances and safeguards for the defendant. E.g., see Kostowski v. The Netherlands (Judgement of 20 November 1989, Series A, No. 166), Doorsen v. The Netherlands (Judgement of 26 March 1996, ECHR-Reports 1996–II, 470), Van Mechelen and Others v. The Netherlands (Judgement of 23 April 1997; ECHR-Reports 1997–III, 691).

197. Prosecutor v. Tadić. IT-94–1-T, Trial Chamber's Decision on the Prosecutor's Motion Requesting Protective Measures, 10 August 1995.

198. E.g., see Sloan, J., ‘The International Criminal Tribunal for the Former Yugoslavia and Fair Trial Rights: A Closer Look’, 9 Leiden JIL (1996) pp. 479–501CrossRefGoogle Scholar; Leigh, M., ‘The Yugoslav Tribunal: Use of Unnamed Witnesses Against the Accused’, 90 AJIL (1996) pp. 235–238CrossRefGoogle Scholar; Chinkin, C.M., ‘Due Process and Witness Anonymity’, 91 AJIL (1997) pp. 75–79CrossRefGoogle Scholar; Leigh, M., ‘Witness Anonymity Is Inconsistent with Due Process’, 91 AJIL (1997) pp. 80–83CrossRefGoogle Scholar; Swaak-Goldman, O.Q., ‘The ICTY and the Right to a Fair Trial: A Critique of the Critics’, 10 Leiden JIL (1997) pp. 215–221CrossRefGoogle Scholar; A. Cassese, op. cit. n. 49, pp. 339–342; Affolder, N.A., ‘Tadić, the Anonymous Witness and the Sources of International Procedural Law’, 19 Mich. JIL (1998) pp. 445–495Google Scholar; Stapleton, S., ‘Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation’, 31 NY Univ. JIL & Pol. (1999) pp. 535–609Google Scholar; Fabian, K.L., ‘Proof and Consequence: An Analysis of the Tadić & Akayesu Trials’, 49 De Paul Law Review (2000) pp. 981–1039Google Scholar.

199. Rule 81(4). See also Rule 81(6), which extends the right to the defence of withholding material or information in circumstances similar to those which would allow the Prosecutor to rely on Art. 68(5). The Rules states that such material and information may not be introduced into evidence during the confirmation hearing or the trial ‘without adequate prior disclosure to the Prosecutor’.

200. Rule 16.

201. Rules 17–19. Similar units have also been established in the ICTY and ICTR. For a presentation and comparison of the different units, see Rydberg, Å., ‘The Protection of the Interests of Witnesses — The ICTY in Comparison to the Future ICC’, 12 Leiden JIL (1999) pp. 455–478CrossRefGoogle Scholar.

202. Rule 16(1)(a)–(c).

203. Rule 16(2)(a)–(b).

204. Rule 17.

205. See Rule 16(1)(d), and Rule 17(2)(b) (iii).

206. Arts. 5–12, 24 and 26.

207. Arts. 13–16; see also Art. 124 regarding a possible time-limited exclusion from jurisdiction over war crimes.

208. Art. 17.

209. Art. 20.

210. Art. 21.

211. Art. 15 regarding the Prosecutor's powers to initiate an investigation proprio motu, Art. 18 on preliminary rulings and Art. 19 on challenges regarding jurisdiction and admissibility.

212. The Tribunals and national courts have concurrent jurisdiction, but the Tribunal has primacy and may request a national court to defer exercising its jurisdiction; see Art. 9 of the ICTY Statute and Art. 8 of the ICTR Statute. The primacy of the Tribunals have created tensions between the international and national jurisdictions, particularly between the ICTR and Rwanda, see Morris, V., ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’, 7 Duke JC&IL (1997) pp. 349–374Google Scholar; Harhoff, F., ‘Consonance or Rivalry? Calibrating the Efforts to Prosecute War Crimes in National and International Tribunals’, 7 Duke Journal of Comparative & International Law (1997) pp. 571–585Google Scholar; Cissé, C., ‘The End of a Culture of Impunity in Rwanda’, 1 YIHL (1998) pp. 161–188CrossRefGoogle Scholar. For a comparative evaluation of primacy and complementarity, see Brown, B.S., ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’, 23 Yale JIL (1998) pp. 383–436Google Scholar.

213. The Preamble and Art. 1.

214. The ‘triggering mechanisms’ are provided in Arts. 13(a) and 14 (State referral), 13(b) (Security Council) and in 13(c) and 15 (Prosecutor with authorization by the Pre-Trial Chamber).

215. For the negotiating history of these provisions, see Kirsch and Holmes, loc. cit. n. 25, and ‘The Birth of the International Criminal Court: The 1998 Rome Conference’, 36 Canadian YIL 1998 (1999) pp. 3–39Google Scholar; Kaul, H.-P., ‘Special Note: The Struggle for the International Criminal Court's Jurisdiction’, 6 Eur.J of Crime, Crim. L & Crim. Jus. (1998) pp. 364–376Google Scholar; see also contributions in Lee, ed., op. cit. n. 11, by Holmes, J.T., ‘The Principle of Complementarity’, pp. 41–78Google Scholar, Wilmshurst, E., ‘Jurisdiction of the Court’, pp. 127–141Google Scholar, Yee, L., ‘The International Criminal Court and the Security Council’, pp. 143–152Google Scholar, and Kirsch, P., ‘The Development of the Rome Statute’, pp. 451–461Google Scholar.

216. GA Res. 53/105 and 54/105, supra n. 6.

217. Art. 12. For a more detailed presentation and analysis of jurisdiction and other issues, see e.g., the references in n. 212 et seq.; L. Arbour and M. Bergsmo, ‘Conspicious Absence of Jurisdictional Overreach’, and M.H. Arsanjani, ‘Reflections on the Jurisdiction and Trigger-Mechanism of the International Criminal Court’, both in H.A.M. von Hebel et al, op cit. n. 154, pp. 57–76 and pp. 129–140 respectively; Bergsmo, M., ‘The Jurisdictional Régime of the International Criminal Court (Part II, Articles 11–19)’, 6 Eur.J Crime, Crim. L & Crim. Jus. (1998) pp. 345–363Google Scholar; Chopra, J., ‘Establishing Universal Jurisdiction’, 6 Brown Journal of World Affairs (1999) pp. 3–17Google Scholar; Kaul, H.-P. and Kreß, C., ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court’, 2 YIHL (1999) pp. 143–175CrossRefGoogle Scholar; La Haye, E., ‘The Jurisdiction of the International Criminal Court: Controversies Over the Preconditions for Exercising Its Jurisdiction’, 46 NILR (1999) pp. 1–25CrossRefGoogle Scholar; McCormack, T.L.H. and Robertson, S., ‘Jurisdictional Aspects of the Rome Statute for the New International Criminal Court’, 23 Melbourne Univ. LR (1999) pp. 635–667Google Scholar; Ntanda Nsereko, D.D., ‘The International Criminal Court: Jurisdictional and Related Issues’, 10 Criminal Law Forum (1999) pp. 87–120CrossRefGoogle Scholar; Rosenne, S., ‘The Jurisdiction of the International Criminal Court’, 2 YIHL (1999) pp. 119–141CrossRefGoogle Scholar; Strijards, G., ‘The Institution of the International Criminal Court’, 12 Leiden JIL (1999) pp. 671–681CrossRefGoogle Scholar; van der Vyver, J.D., ‘Universal jurisdiction in international criminal law’, 24 South African YIL (1999) pp. 107–132Google Scholar; Zimmermann, A., ‘The Creation of a Permanent International Court’, 2 MPYBUNL (1998) pp. 169–237Google Scholar.

218. Rule 44(1).

219. E.g., see Wedgwood, R., ‘The United States and the International Criminal Court: Achieving a Wider Consensus Through the ‘Ithaca Package’‘, 32 Cornell ILJ (1999) p. 541Google Scholar, and Brown, B.S., ‘U.S. Objections to the Statute of the International Criminal Court: A Brief Response’, 31 NY Univ. JIL & Pol. (1999) pp. 885–886Google Scholar. Other commentators, however, have pointed out that other jurisdictional provisions of the Statute might create asymmetry but, nevertheless, recognized that a symmetric liability in respect of Art. 12(3) might provide political comfort, see Kaul and Kreß, loc. cit. n. 217, at pp. 174–175; Hafner, G., Boon, K., Rübesame, A. and Houston, J., ‘A Response to the American View by Ruth Wedgwood’, 10 EJIL (1999) pp. 118–120CrossRefGoogle Scholar; Philips, R.B., ‘The International Criminal Court Statute: Jurisdiction and Admissibility’, 10 Criminal Law Forum (1999) pp. 68–69CrossRefGoogle Scholar. See also. Bergsmo, M., ‘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 JIL (2000) pp. 100–1034Google Scholar

220. Rule 44(2). Another consequence, according to Art. 12(3), and further clarified in the Rules, is that the accepting state must cooperate like a State Party in accordance with Part 9 of the Statute (and any rules thereunder).

221. E.g., see references in n. 215 and 217 as well as R. Dicker and H. Duffy, ‘National Courts and the ICC’, 6 Brown Journal of World Affairs (1999) pp. 53–63.

222. Proposal by the United States, UN Doc. PCNICC/1999/WGRPE/DP.45 (2 December 1999).

223. Rule 51.

224. Rules 52–57. The procedure for provisional measures set out in Rule 57 shall also apply in respect of such measures under Art. 19(8), pending the Court's ruling on a challenge to jurisdiction or admissibility, see Rule 61.

225. Rules 58–62.

226. Art. 19(4). In addition, the leave for a challenge to the admissibility at the commencement of the trial or later may only be granted on the ground of the ne bis in idem principle.

227. See further, the Appeals Chamber's decision of 29 October 1997 in Prosecutor v. Blaškić, IT-95–14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, where it was concluded that the ICTY (and ICTR) has the power to issue binding orders to states. See also the ICTY Trial Chamber's decision of 18 October 2000 in Prosecutor v. Simić et al, IT-95–9-PT, Decision on Motion for Judicial Assistance to be Provided by SFOR and Others (appealed by the Prosecutor).

228. For the negotiating history of Part 9, see P. Mochochoko, ‘International Cooperation and Judicial Assistance’, in Lee, ed., op. cit n. 11, at pp. 305–317. See also, Kaul and Kreß, loc. cit. n. 217; Cassese, A., ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 EJIL (1999) pp. 144–171CrossRefGoogle Scholar; B. Swart and G. Sluiter, ‘The International Criminal Court and International Criminal Co-operation’, in Von Hebel et al., op. cit. n. 154, at pp. 91–127; C. Kreß, K. Proust, A. Schlunck and P. Wilkitzki, ‘International Cooperation and Judicial Assistance — Preliminary Remarks’, in Triffterer, ed., op. cit. n. 47, at pp. 1045–1050; Ambos, K., ‘The International Criminal Court and the Traditional Principles of International Cooperation in Criminal Matters’, 9 Finnish YIL (2000) pp. 413–426Google Scholar

229. Arts. 86 and 88, respectively. In addition, the Statute provides the Court with certain limited powers to conduct investigations on the territory of a state, see Art. 57(3)(d), and Art. 99(4).

230. Cf., Art. 29 of the ICTY Statute and Art. 28 of the ICTR Statute with Arts. 86–102 (Part 9) of the Rome Statute.

231. Rules 176–180, which also deal with languages to be used in respect of different recipients and changes in the channels of communication of the language of a request for cooperation.

232. Rule 176(2).

233. See Rule 184 (surrender), Art. 93(7) and Rule 192 (temporary transfer of a person in custody), and Rule 193 (temporary transfer of a convicted person).

234. Rules 182 (Art. 89(3)(e)), 186 (Art. 90(8)), 189 (Art. 92(3)) and 194 (Art. 93(10)), respectively.

235. Rules 187, 190–191 (which relate to Rule 74 on self-incrimination), and 196–197 (on the rule of speciality under Art. 101), respectively. On these matters relating to the rights of the individual, see supra section 3. 11.

236. Rule 188. In light of the complexity of cases to be submitted to the ICC, this time limit is longer than that normally required in agreements on extradition between states. For example, the UN Model Treaty on Extradition of 3 April 1991, GA Res. 45/116, provides for a maximum 40 day-period (Art. 9), as does the European Convention on Extradition of 13 December 1957 (Art. 16), while the Convention on Extradition of the Economic Community of West African States of 1994 allow for a maximum of 20 days (Art. 22). Compare, however, the 1981 Inter-American Convention on Extradition, which sets the maximum time period at 60 days (Art. 14). The Rules of the ICTY and ICTR set a 30 day-period that may be extended twice to a maximum of 90 days (Rule 40 of the respective Rules). However, the procedures of the Tribunals are different and, unlike before the ICC, a warrant of arrest requires that the indictment has been confirmed by a Judge of the Court.

237. Rule 183; see also Art. 89(4).

238. I.e., the ne bis in idem principle of Art. 20. It should be noted that Art. 20(1) does not refer to ‘crimes’ but instead to ‘conduct which formed the basis of crimes.

239. Rule 185.

240. In respect of Prosecutor v. Barayagwiza before the ICTR, ICTR-97–9-AR72, the decision of the Appeals Chamber of 3 November 1999 to return a suspect, who had been released, to a state that was unlikely to institute any criminal proceedings against that person, has been criticized on the ground that this decision, in practice, sanctioned impunity; see Schabas, W.A., ‘International Decisions: Barayagwiza v. Prosecutor’, 94 AJIL (2000) pp. 638–645Google Scholar.

241. However, establishing a state's obligation to receive a person may be difficult, except for the state's own nationals; see Hailbronner, K., ‘Readmission Agreements and the Obligation of States under Public International Law to Readmit their Own and Foreign Nationals’, 57 ZaöRV (1997) pp. 1–49Google Scholar. The same difficulty will appear in respect of transfer of a person from the state of enforcement upon completion of sentence, see Art. 107.

242. Art. 17(1)(a).

243. Such a review requires, according to Art. 19(10), that the Prosecutor is ‘fully satisfied that new facts have arisen which negate the basis on which the case has previously been found inadmissible under article 17’. Proposals to insert, directly or indirectly, a reference to such a review in Rule 185 were, however, not accepted in the Preparatory Commission.

244. One side of the debate argues that State Parties are, due to their obligations under the Statute and in light of the development of international law, particularly through the Pinochet case (2 All ER 97), under an obligation to waive any immunity that may exist under international law and that the provision relating to SOFAs should be interpreted narrowly, see Kaul and Kreß, loc. cit. n. 217, at pp. 164–165 and 174, and Swart and Sluiter, loc. cit. n. 228, at pp. 120–121. The other side is more concerned with the SOFAs and submits that a broad interpretation ought to be given so that both new and existing agreements should be respected, as well as ‘working agreements that amount to less formal agreements’, see Wedgwood, loc. cit. n. 219, at p. 541, and by the same author, ‘The International Criminal Court: An American View’, 10 EJIL (1999) p. 103Google Scholar.

245. The understanding read: ‘It was generally understood that rule [195, sub-rule 2] should not be interpreted as requiring or in any way calling for the negotiation of provisions in any particular international agreement by the Court or by any other international organization or State,’ UN Doc. PCNICC/2000/L.3/Rev.1 of 6 July 2000, at p. 3.

246. Rule 195(2).

247. On the negotiating history, see T.P. Chimimba, ‘Establishing an Enforcement Regime’, in Lee, ed., op. cit. n. 11, at pp. 345–356.

248. Art. 27 of the ICTY Statute and Art. 26 of the ICTR Statute. For a presentation of the enforcement regime of the Tribunals, see Klip, A., ‘Enforcement of Sanctions Imposed by the International Criminal Tribunals for Rwanda and the Former Yugoslavia’, 5 Eur. J Crime, Crim. L & Crim. Jus. (1997) pp. 144–164CrossRefGoogle Scholar, and Tolbert, D., ‘The International Tribunal for the Former Yugoslavia and the Enforcement of Sentences’, 11 Leiden JIL (1998) pp. 655–669CrossRefGoogle Scholar.

249. Art. 103, which also provides that the state may attach conditions, which are subject to the Court's approval.

250. Rules 198–200.

251. Art. 103(3) and Rules 201 and 203. The procedure for obtaining the views of the sentenced person includes notice, written and oral presentations, interpretation and translation, and adequate time and facilities to prepare.

252. Rules 202 and 204–206.

253. Rule 207; cf., Art. 89(3) on transit in case of surrender.

254. Art. 106. For a commentary, including on the term ‘widely accepted international treaty standards’, see R.S. Clark, ‘Article 106’, in Triffterer, op. cit. n. 47, at pp. 1177–1179.

255. Arts. 105(1) and 110(1).

256. Rule 211. Additionally, the state of enforcement may, when appropriate, be given an opportunity to respond to the views expressed by the prisoner. The Court's contacts with the prisoner and visits, which shall be preceded by a notice to the state of enforcement, resemble the order set up by the European Convention for the Prevention of Torture and Inuman or Degrading Treatment of Punishment of 26 November 1987. See in particular Art. 8 of the Convention.

257. Rule 211(2) and Rule 216.

258. Rules 214–216.

259. This mechanism was an important element in order to reach a solution at the Rome Conference regarding the highly contested issue of penalties, see Fife, loc. cit. n. 37, at pp. 337–338.

260. Rules 223–224.

261. Rules 212, 217–218 and 222. Enforcement of fines and forfeiture orders are regulated by Art. 109 and reparation orders by Art. 75(5), which refers to Art. 109.

262. Rules 219–220. In respect of reparation orders, Rule 219 explicitly states that the scope and extent of any damage, loss or injury determined by the Court and the principles stated in the order may not be modified and, further, that the state shall facilitate the enforcement of such an order.

263. Rule 221.

264. Art. 86(6).

265. See Rule 18(e), regarding the Victims and Witnesses Unit's discharge of its functions. Further, Rule 92(8), deals with cooperation in order to give adequate publicity to the proceedings and Rule 96(2), publicity in respect of reparations proceedings.

266. Rule 98(4). See supra under 6.3.3.

267. See Rules 17, 18 and 98.

268. Arts. 13(b) and 16. In addition, the role of the Security Council under the UN Charter has implications for the establishment of a ‘crime of aggression’ as envisaged in Art. 5. For a more detailed presentation and analysis, see e.g., Yee, loc. cit. n. 215; Sir F. Berman, ‘The Relationship Between the International Criminal Court and the Security Council’, in H.A.M. von Hebel et al., op. cit. n. 154, at pp. 173–180; Gargiulo, P., ‘The Controversial Relationship Between the International Criminal Court and the Security Council’, in Lattanzi, F. and Schabas, W.A., eds., Essays on the Rome Statute of the International Criminal Court, Vol. 1 (Ripa Fagnano Alto, il Sirente 1999) pp. 67–103Google Scholar; Oosthuizen, G.H., ‘Some Preliminary Remarks on the Relationship Between the Envisaged International Criminal Court and the UN Security Council’, 46 NILR (1999) pp. 313–342CrossRefGoogle Scholar; Bergsmo, loc. cit. n. 219, at pp. 87–113.

269. Art. 53(3)(a).

270. Rules 105(1), 106(1), 107(4) and 110(2); see also Art. 53(2) in fine, which only addresses notification in cases where the Prosecutor has decided not to prosecute. In addition, the Security Council shall also be informed of a request for review by a referring state and be allowed to submit observations, see Rule 109(2).

271. Rule 103.

272. Rules 176(4) and 177(2).

273. Art. 2.