Previous comments - Part 5

Article 62

[508] Place of trial
Unless otherwise decided, the place of the trial shall be the seat of the Court.
Article 62 should be read together with Article 3 which provides that the seat of the Court is at The Hague in the Netherlands and that "[t]he Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute". While Article 3 encompaasses all organs of the Court, Article 62 is in part 6 of the Statute which deals with the trial. Article 62 is thus not applicable for pre-trial proceedings.
Rule 100(2) provides that Prosecutor, the defence or a majority of the judges of the Court may fle an application or recommendation changing the place where the Court sits. Paragraph 3 of the same provides that "[t]he 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".
Trial Chamber I considered holding parts of the proceedings in Lubanga in the Democratic Republic of Congo. A feasibility study was conducted. In the end, the Government witheld consent for holding a trial in the country. Therefore the Trial Chamber decided that the trial in its entirety would be conducted in The Hague, see Lubanga, Decision on disclosure issues, responsibilities for protective measures and other procedural matters, ICC-01/04-01/06-1311-Anx2, ICC Trial Chamber, 24 April 2008, para. 105.

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 747-749.
Otto Triffterer, "Article 62 - Place of the Trial", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1183-1190.

Author: Mark Klamberg

Updated: 30 June 2016

Article 63(1)

[509] Trial in the presence of the accused
1. The accused shall be present during the trial.
The Article lays down the principle that the trial shall generally be conducted in the presence of the accused in order to safeguard his or her position as subject, not object of the proceedings. This principle is also safeguarded by the right of the accused to be present during trial, contained in Article 67(1)(d) (see also the commentary thereto). Article 61(2) contains a specific provision on the presence or absence of the accused at the confirmation hearing.
Article 63 only names one exception to this principle, namely the possibility of removal of the accused for disruptive behavior mentioned in para. 2. However, it is not clear whether this exhausts all possibilities for trial proceedings conducted (partially) in the absence of the accused. One other possibility would be where the accused chooses not to attend the trial. Such choice has been accepted by both ad hocTribunals and by the Special Court for Sierra Leone (See e.g., Prosecutor v. Zdravko Mucic et al., (Case No. IT-96-21) ICTY T. Ch., Transcript of 16 April 1998, p. 11255-56; The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Anatole Nsengiyumva and Aloys Ntabakuze, (Case No. ICTR-98-41-I), ICTR T. Ch., Minutes of Proceedings of 2 April 2002, para. 1; Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, (Case No. SCSL-2004-15), SCSL T. Ch., Ruling on the issue of the refusal of the third accused, Augustine Gbao, to attend hearing of the Special Court for Sierra Leone on 7 July 2004 and succeeding days, 12 July 2004, para. 12). On the other hand, there are also national systems which hold that presence at trial is not only a right, but also a duty of the defendant, from which he or she may only be excused under certain limited circumstances (see Sect. 230and 236 of the German Code of Criminal Procedure). In the Statute, the possibility of a waiver of the right to presence is also explicitly mentioned in Article 61(2) on the confirmation hearing (albeit referring to the confirmation hearing as a whole, not to parts of it), but whether the Court will interpret this provision as laying down a general principle also applicable to trial proceedings, or whether it will find e contrario that there may be no such waiver for trial proceedings as it is not explicitly laid down in Article 63, remains to be seen.
For other possibilities for trial proceedings in the absence of the accused, as well as for the question of fitness to stand trial, see commentary to Article 67(1)(d).

Cross-reference:
Article 67(1)(d)

Author: Björn Elberling

Updated: 30 June 2016

Article 63(2)

[510] 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 63(2) lays down the only clearly established exception to the principle that the accused must be present at her trial, namely his or her removal for disruptive behavior. It follows similar provisions at other tribunals, such as Rule 80 of the Rules of Procedure and Evidence at both the ICTY and the ICTR, which have seldom if ever been used.
    The requirements for removal show that at the ICC too, removal of the accused must be seen as a measure of last resort which should only seldom arise: First of all, the accused must “continue[] to disrupt the trial”, in other words a single disruption, no matter how grave in itself, will not be sufficient. Rule 170 adds to this the requirement of a prior warning before removal. Second, “other reasonable alternatives” to removal must have proved inadequate – what exactly such “reasonable alternatives” may be is left to the further jurisprudence of the Court, one that springs to mind is shutting off the microphone of the accused. (The US Supreme Court has found that US law even allows binding and gagging the defendant if this is the only way to conduct the trial in his or her presence and without disruptions – Illinois v. Allen, 397 US 337, 343). Finally, removal is limited to “such duration as is strictly required” – especially where the accused has been removed from proceedings for the first time, this may require allowing him or her back into the courtroom after a sufficient “cooling off period” upon the promise to stop disrupting the trial. Whether the reference to “exceptional circumstances” must be interpreted as yet another additional requirement, or whether it is more a description of situations which fulfill the other requirements for removal, is not clear.
    If the accused is removed, he or she must nonetheless be enabled to follow the proceedings and instruct counsel from outside the courtroom.
    For other possibilities for trial proceedings in the absence of the accused, see commentary to Article 67(1)(d).

Cross-references:
Article 67(1)(d), Rule 170

Doctrine:

William A. Schabas, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1191-1198.
Gerhard Werle, Principles of International Criminal Law, TMC Asser Press, The Hague, 2005, pp. 400-401, MN 1184-1185.
Frank Terrier, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1282-1284.

[519] 6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary:
The powers of the Trial Chamber as set out in Article 64(6) applies both to the phase before the trial and its conduct as such.

Author: Mark Klamberg

Updated: 30 June 2016

Cross-references:
Rule 137 and 138, regulation 27

Doctrine:

Alphons Orie, in Antonio Cassese et al., The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, p. 1488.
Gilbert Bitti, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1199-1218.
Claus Kreß/Kimberly Prost, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1572, 1576-1577, 1584.
Peter Lewis, in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 549-550.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010 at p. 772.
Frank Terrier, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, p. 1284.

Author: Mark Klamberg

Updated: 30 June 2016

Article 65

[532] Proceedings on an admission of guilt
General Remarks
Article 65 provides that if an accused admits guilt before the Trial Chamber, the Chamber may forego a full-blown trial and proceed with the case in an abbreviated fashion. The provision effectively allows for the development of a form of “plea bargaining,” or “negotiated justice,” whereby the accused agrees to admit guilt in exchange for more lenient treatment. In response to concerns expressed by delegates to the Rome Conference from civil-law countries, Article 65 demands a thorough inquiry by judges to ensure that an admission of guilt is supported by the facts and allows the court to require a more complete presentation of evidence in the interests of justice. The Article also expressly states that negotiations between the parties do not bind the court, emphasizing that judges are the ultimate decision-makers on the facts, the charges, and the sentence.
Article 65 was drafted before plea bargaining developed at the ICTY and ICTR, and before the Rules at these Tribunals were amended to regulate the practice. Because the provisions on guilty pleas at those Tribunals are similar to those on admissions of guilt at the ICC, however, one may expect the ICC to consult Tribunal jurisprudence when interpreting Article 65. ICTY and ICTR jurisprudence is therefore mentioned in this commentary when relevant. Likewise, the commentary refers to the East Timor Special Panels on Serious Crimes (SPSC), because the SPSC accepted admissions of guilt under provisions almost identical to those of the ICC Statute. As of this writing in 2015, the ICC itself has not yet resolved any cases pursuant to the procedure in Article 65.

Preparatory Works
The negotiations of Article 65 reflected divisions between representatives of common-law countries, who viewed plea bargaining as an efficient mechanism of adjudicating complex crimes, and those of civil-law countries, who found repugnant the notion of “bargaining with justice” for serious international crimes. The International Law Commission’s 1994 Final Draft of the ICC Statute included a provision for the entry of guilty pleas, without specifying the consequences of the procedure. Some delegates objected that the provision might allow for plea bargaining and that such bargaining would be inappropriate “in view of the gravity of the crimes within the jurisdiction of the court.” (Schabas, p. 776, citing Ad Hoc Committee Report, para. 170). A compromise was found in a proposal submitted by Argentina and Canada, which suggested a procedure of “abbreviated proceedings on an admission of guilt”. (Schabas 776). To assuage concerns about inaccurate, unfair, or overly lenient plea bargains, the final text included the provision in Article 65(5), which states that any discussions between the parties regarding the charges or the penalty would not bind the court. (Schabas, p. 776-77).

Analysis
The accused may formally admit guilt once the case reaches the Trial Chamber (ICC Statute Article 64(8)(a)). The Trial Chamber must then examine the validity of the admission under Article 65(1).

Cross-reference:
Article 64(8)

Author: Jenia Iontcheva Turner

Updated: 30 June 2016

Article 65(1)

[533] Where the accused makes an admission of guilt pursuant to Article 64, paragraph 8 (a), the Trial Chamber shall determine whether:
To determine the validity of an admission of guilt, the Chamber must examine whether the admission is knowing, voluntary, and factually based. Unlike the ICTY and ICTR Rules, the ICC Statute does not expressly require that the admission of guilt be unequivocal. Theoretically, therefore, an accused may be able to admit guilt and yet persist with a legal defense. While Article 65 does not prohibit equivocal admissions, Trial Chambers are unlikely to accept them in practice. Such admissions increase the risk that a potentially innocent defendant is convicted. (Prosecutor v. Serushago, (Case No. ICTR-98-39), ICTR T. Ch., 5 February 1999, para. 29). They also conflict with Article 65’s emphasis on a full examination of the facts of the case. At the SPSC, which followed Rules identical to Article 65(1) with respect to the validity of admissions of guilt, judges required that admissions of guilt be unequivocal even though no such requirement was set out in the court’s rules. (UNTAET Regulation No.2000/30 on Transitional Rules of Criminal Procedure, R. 29A; Prosecutor v. Fernandes, SPSC, Dili District Court, Sentencing Judgement, 25 January, 2000, para. 6).

[539] 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.
Pursuant to sub-paragraph (a), the Trial Chamber may request the prosecution to present additional evidence where it believes that the interests of justice—and in particular the interests of victims—may require it. The Court may need to resort to this procedure if additional facts would be helpful to victims’ reparation claims, to the determination of a just sentence, or to the establishment of a more complete record. No similar provision exists in the ICTY and ICTR Rules. Article 65 reflects a new approach to plea bargaining, in line with the court’s goals of compiling an accurate record and protecting victims’ interests (Turner & Weigend 1390).
Article 65(4)(b) of the ICC Statute provides that even when the conditions for a valid admission of guilt are met, the Chamber may nonetheless reject the admission and order the case to proceed through the ordinary trial procedure when the Chamber “is of the opinion that a more complete presentation of the facts is required in the interests of justice”. The court’s view of the interests of justice may override the parties’ wishes to resolve the case through the Article 65 procedure (Turner & Weigend 1390).
In deciding whether to proceed under Article 65(4), the Chamber may, in accordance with Rule 139(1), invite the views of the prosecution and defense. Because the Chamber will make this determination based on the interests of justice and of victims, however, one may expect the Chamber to solicit the views of victims as well (Article 68(3); Schabas 780). This would be consistent with Rule 93, which provides that a Chamber may seek the views of victims or their legal representatives in relation to proceedings on admission of guilt (ICC RPE Rules 93, 139; Turner & Weigend 1391).

Cross-reference:
Rule 139

Author: Jenia Iontcheva Turner

Updated: 30 June 2016

Article 65(5)

[540] 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 65(5) was included in response to concerns about allowing the parties to resolve the outcome of a case independently of the court and in a manner contrary to the interests of justice (Schabas 775). The Article acknowledges that discussions between the parties about the charges and penalty may occur, but it provides that these discussions are not binding on the court. By making the outcome of bargaining subject to judicial approval, Article 65(5) reduces the predictability and therefore the likelihood of agreements between the parties. At the same time, it reinforces the role of judges as the ultimate arbiters with respect to the accuracy and fairness of the verdict and rejects a party-driven model of negotiated justice.
So far, international tribunals have been largely reluctant to accept agreements between the parties concerning the charges and the facts, particularly when such agreements do not adequately reflect the totality of the accused’s conduct and the gravity of the offenses committed. (Prosecutor v. M. Nikolić,(Case No. IT-02-60/1) ICTY T. Ch., 2 December 2003, paras. 50, 65; Prosecutor v. Deronjić, (Case No. IT-02-61) ICTY T. Ch., (dissenting op. of Judge Schomburg), March 30, 2004, para. 11). Such agreements are disfavored because of a concern that they may leave the impression that the outcome is unjust or that the court has not established a full and credible record of the crime (Prosecutor v. M. Nikolić, (Case No. IT-02-60/1) ICTY T. Ch., 2 December 2003, para. 65). For the same reasons, we can expect that at the ICC, too, charge bargaining will be relatively rare. If parties do enter into agreements, these are more likely to concern the sentence rather than the charges or the facts.

Cross-references:
Rule 139

Doctrine:

Björn Elberling, Article 65,in Mark Klamberg, Commentary Demo Version
Mirjan Damaška, "Negotiated Justice in International Criminal Courts", Journal of International Criminal Justice, vol. 2 (2004): 1018.
Fabricio Guariglia/Gudrun Hochmayr, "Article 65", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1219-1232.
Karim A.A. Khan/Rodney Dixon Archbold, International Criminal Courts: Practice, Procedure, and Evidence, Third Edition, Sweet & Maxwell, London, 2009, § 7-161.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
Frank Terrier, "Proceedings before the Trial Chamber", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002.
Jenia Iontcheva Turner, Plea Bargaining Across Borders, Aspen, New York, 2009.
Jenia Iontcheva Turner/Thomas Weigend, "Negotiated Justice", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013.

Author: Jenia Iontcheva Turner

Updated: 30 June 2016

Article 66

[541] Presumption of innocence
General Remarks
Article 66 contains the maxim of presumption of innocence, which is contained in all major human rights instruments, and some corollaries thereto.
While the presumption of innocence itself is not also stated as a defendant right under either Article 55(2) or Article 67(1), some of the rights contained in these Articles are corollaries of the presumption of innocence, such as the right to silence ( Article 55(2)(b), 67(1)(g)) or the right not to be burdened with a reversal of the burden of proof (Article 67(1)(i)). But also other provisions, such as those allowing interim release of accused (Articles 59(3)–(6), 60), can only be explained on the basis that all accused, including those who apply for provisional release, must be considered innocent.
Despite being placed in Part 6 on “The Trial”, the presumption of innocence applies generally to all proceedings before the court concerning individual defendants (See Schabas, MN 3, MN 11-12, Zappala, at p. 1342).

Author: Björn Elberling

Updated: 30 June 2016

Article 66(1)

[542] 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
Article 66(1) states the core of the presumption of innocence, namely that everybody must be presumed innocent until proven guilty according to the law. The wording “everyone” shows that the presumption of innocence applies not only to accused, i.e. during the actual trial, but also to, e.g., persons covered by Article 55(2) in the investigation phase. As to its application during sentencing and during appeals proceedings, see Schabas, MN 13-14.
The most interesting question is what legal consequences exactly attach to the principle. The major consequence, of course, is that an accused may not be convicted unless her guilt has been proven according to the applicable law (and in accordance with Article 66(2)-(3)). “According to the applicable law” in this case may also be read to imply that where evidence for guilt is not presented in accordance with applicable procedural or other norms, it may not be used to justify a conviction (see Schabas, MN 17).
Besides this consequence and those laid down in the following paragraphs or separate provisions, one can generally state that the presumption must be taken into account in all decisions concerning the defendant and that it prohibits any decision based on a preconception of his or her guilt. (Generally concerning actions that may be in violation of the presumption, including acts of bodies besides the Court, see Schabas, MN 26–27)

Author: Björn Elberling

Updated: 30 June 2016

Article 66(2)

[543] 2. The onus is on the Prosecutor to prove the guilt of the accused.
Article 66(2) lays down one important corollary to the presumption of innocence, namely that is up to the prosecution to prove the guilt of the defendant. Stated negatively, this means that it may never be up to the defendant to provide evidence of his or her innocence in the absence of direct evidence of his or her guilt. In the context of the Rome Statute, this provision is significantly strengthened by Article 67(1)(i), which prohibits any reversal of the burden of proof and thus shows that the rule contained in Article 66(2) applies generally and without exceptions.
For more on the question of reversal of the burden of proof, including examples of provisions which might pose problems under Article 66 and 67, see the commentary to Article 67(1)(i).

Cross-reference:
Article 67(1)(i)

Author: Björn Elberling

Updated: 30 June 2016

Article 66(3)

[544] 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
While Article 66(2) concerns the burden of proof before the ICC, this provision concerns the standard of proof to be met by the prosecution to overcome this burden. In keeping with its precursors (see references in Schabas, MN 23) as well as most national laws, the Rome Statute requires proof “beyond reasonable doubt”. An exact definition of this standard may be almost impossible to find; for examples of what reasonable doubt means and what it does not mean (see Schabas, MN 25).
The standard of proof beyond reasonable doubt does not demand unanimity of the judges, rather a majority of judges is sufficient for conviction provided that these judges are convinced beyond a reasonable doubt of the guilt of the accused (see Article 74(3)).

Doctrine:

William A. Schabas, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1233-1245.
Salvatore Zappala, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1340-1348.

Author: Björn Elberling

Updated: 30 June 2016

Article 67

[545] Rights of the accused
General Remarks
Article 67(1) contains a number of specific rights granted to the accused, most of which are taken, with some modifications, from provisions on defendant rights in human rights instruments, particularly Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Moreover, Article 67(1) is similar to constitutional national texts. Article 67 is not only applicable to trial as their provisions are relevant to all procedural stages [Situation in the Democratic Republic of Congo, Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04, 31 March 2006, paras. 34-35]. Besides Article 67, other Articles relevant to the rights of the accused person are: i) Article 21(3), which guarantees the application of international human rights when interpreting the ICC Statute; ii) Article 55, which fleshes out the rights of persons during an investigation; iii) Article 61(6), which contains the accused person’s specific rights at the confirmation of charges hearing; iv) Article 66 (Presumption of innocence); and v) Article 74, which contains the right to a reasoned judgment. Thus, for example, by virtue of Article 21(3) of the ICC Statute, the interpretation and application of the applicable law shall be consistent with internationally recognised human rights and, thus, the broad concept of fair trial should embrace the judicial process in its entirety [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court, ICC-02/11-01/11-286-Red, 2 November 2012, para. 45]. It should finally be borne in mind that, as a rule, the rights of the accused have primacy “over any other conflicting interest” [Zappalà, 2010, pp. 144-145].

Preparatory works:
A provision almost identical to Article 14(3) of the ICCPR was included in the International Law Commission draft statute of 1994. Based on this draft, the Ad Hoc Committee focused its discussion on some specific issues. The Preparatory Committee, at its August 1996 session, considered the rights of the accused which led to detailed comments and suggestions. The Preparatory Committee addressed the topic again in August 1997 and, at this stage, there were many departures from the text of Article 14(3) of the ICCPR. In addition, there were many cross-references to other ICC Statute provisions. Thus, the Preparatory Committee’s 1997 draft contained both modified versions of the rights included in Article 14 of the ICCPR and several new rights. This text was reproduced in the Zurphen Compilation and the final draft of the Preparatory Committee with just few changes. In turn, the Rome Conference swiftly agreed on most of Article 67 provisions and the delegates accepted the approach under which the minimum guarantees of Article 14 of the ICCPR were enlarged [on preparatory works of Article 67, see, Schabas, 1999, pp. 847-848; Schabas, 2008, 1249-1250; and Schabas, 2010, pp. 793-794].

Cross-references:
Articles 21(3), 55, 61(6), 64, 66, 74.

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)

[546] 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:
As to its application, the wording “in the determination of any charge” implies that substance-wise, Article 67 applies not only to crimes referenced in Article 5, but also offences against the administration of justice contained in Article 70 [Schabas, 1999, p. 849; Schabas, 2008, p. 1251; and Schabas, 2010, pp. 796-797]. As to temporal application, the wording “in the determination of any charge” is largely identical to human rights norms, which apply once a person has been “substantially affected” by proceedings, i.e., even before a formal indictment is brought [Schabas, 1999, p. 849; Schabas, 2008, p. 1251; and Schabas, 2010, pp. 796-797 with references]. On the other hand, the fact that the norm refers to “accused” [on this terminology, see comment to Article 19(2)(a))] and that the rights of persons during an investigation are safeguarded in the separate Article 55, would seem to imply that Article 67(1) only applies once proceedings specifically against an individual accused have begun, i.e., after the initial appearance of the accused. This also seems to be the approach so far taken by the Court – when Pre-Trial Chamber II in Kony et al. appointed an ad hoc counsel for the defence at a time when arrest warrants had been issued but none of the defendants had been arrested, it did so not under Article 67(1), but under its general power under Regulation 76(1) [Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on legal representation, appointment of counsel for the defence, protective measures and time-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-01/05-134, 1 February 2007, para. 15]. Indeed, in accordance with rule 121(1) of the Rules of Procedure and Evidence (RPE), Article 67(1) fair trial rights are applicable from the first appearance of the suspect before the Pre-Trial Chamber [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court, ICC-02/11-01/11-286-Red, 2 November 2012, para. 44].
   The fact that the temporal application of Article 67 is thus rather limited is partly made up by the fact that the Court is also mindful of the rights and interests of the defence generally – where Article 67 does not yet apply, but where there is a situation in which the interests of the defence generally need to be safeguarded, the Court appoints ad hoc counsel for the defence [e.g., Situation in Darfur, Sudan, ICC PT. Ch. I, Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, ICC-02/05-10, 24 July 2006; Situation in the Democratic Republic of Congo, PT. Ch. I, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp] or assigns this task to the Office of Public Counsel for the Defence (OPCD) [e.g., Situation in Darfur, Sudan, ICC PT. Ch. I, Decision authorising the filing of observations on applications for participation in the proceedings a/0011/06 to a/0015/06, ICC-02/05-74, 23 May 2007].
   According to the chapeau of Article 67(1), all rights contained therein are granted “having regard to the provisions of this Statute”. This provision, which was added rather late in the negotiating process, can best be interpreted as allowing specific limitations of the article 67-rights to be contained elsewhere in the Statute, not as generally subordinating Article 67 to other norms of the Statute [Schabas, 1999, p. 851; Schabas, 2008, p. 1253; and Schabas, 2010, p. 798]. One example for such limitations is the right to a public hearing, exceptions to which are contained in Articles 64(7), 68(2) and 72(7). On the other hand, some defence rights, such as Article 67(1)(d) on the right to be present at one’s trial, explicitly refers to the Statute norms containing limitations (in this case Article 63(2)). In such cases, an argument could be made that no exceptions to these defence rights may be derived from norms not explicitly mentioned in the provision containing the defence right in question [although see commentary to Article 67(1)(d) concerning further limitations to this right].
   As for Article 67(1) fair trial rights, Pre-Trial Chamber I in Gbagbo indicated certain necessary capacities to meaningfully exercise those rights, namely, “(i) to understand in detail the nature, cause and content of the charges; (ii) to understand the conduct of the proceedings; (iii) to instruct counsel; (iv) to understand the consequences of the proceedings; and (v) to make a statement” [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court, ICC-02/11-01/11-286-Red, 2 November 2012, para. 50].
   Besides provisions on the applicability of the rights of the accused, the chapeau of Article 67(1) also itself contains certain rights.
   First among these is the right to a public hearing. The requirement of publicity is further elaborated upon in Regulations 20 and 21; it may require unsealing of non-public documents, if need be in a redacted form [see, e.g., Prosecutor v. Lubanga, ICC PT. Ch. I, Decision to Unseal and Reclassify Certain Documents in the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-42, 20 March 2006]. There are a number of circumstances under which the publicity of hearings may be restricted – see the articles mentioned above, as well as commentaries to these Articles [see also Prosecutor v. Bemba, ICC T. Ch. III, Public Redacted Version of the Chamber's 11 November 2011 Decision regarding the prosecution's witness schedule, ICC-01/05-01/08-1904-Red, 15 November 2011, para. 18; and Prosecutor v. Katanga and Ngudjolo Chui, ICC PT. Ch. II, Ordonnance portant instructions en vue de favoriser la publicité de la procédure, ICC-01/04-01/07-3226, 31 January 2012, para. 1]. In turn, as Schabas points out, the accused person’s right to privacy is not explicitly recognized in the ICC Statute [Schabas, 2010, p. 798]. However, this right has been invoked by the judges in order to restrict the principle of publicity of proceedings [Prosecutor v. Bemba, ICC PT. Ch. III, Decision on the Second Defence’s Application for Lifting the Seizure of Assets and Request for Cooperation to the Competent Authorities of the Republic of Portugal, ICC-01/05-01/08-249, 14 November 2008, paras. 27-29].
   It is important to consider the (potential) tension and/or conflict between the right to a public hearing and protective measures ordered under Article 68 [for further and more detailed commentaries, see commentaries on Article 68]. Under Article 68 (2), these measures “[are] an exception to the principle of public hearings” and, thus, a Chamber “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”. Case-law of the ICC has considered the public character of the proceedings as fundamental [Prosecutor v. Bemba, ICC A. Ch., Order on the reclassification as public of documents ICC-01/05-01/08-498-Conf and ICC-01/05-01/08-503-Conf, ICC-01/05-01/08-701, 24 February 2010; and Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Order on protective measures for certain witnesses called by the Prosecutor and the Chamber (Rules 87 and 88 of the Rules of Procedure and Evidence), ICC-01/04-01/07-1667-Red-tENG, 9 December 2009, para. 4]. However, the ICC Chambers have made exceptions to the principle of public hearings considering the protective needs of the witnesses [e.g., Prosecutor v. Lubanga, ICC T. Ch. I, Transcripts, ICC-01/04-01/06-T-104, 16 January 2009, pp. 3-4]. Article 68(2) allows a departure from the normal course of “public hearings” in order to protect victims and witnesses, when it is necessary, including “special measures” such as reading partially or totally a witness’s statement in open court or in private provided that “these steps do not detract from the fairness of the proceedings” [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the prosecution's application for the admission of the prior recorded statements of two witnesses, ICC-01/04-01/06-1603, 15 January 2009, para. 17]. In Katanga and Ngudjolo Chui, for example, the Chamber ordered closed sessions when certain witnesses would enter and exit the courtroom and when potentially identifying questions would be put to them [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the application for the institution of protective measures for Witnesses a/0381/09, a/0018/09, a/0191/08, pan/0363/09 and Victim a/0363/09, issued on 27 January 2011, ICC-01/04-01/07-2663-Red, 22 February 2011, para. 15].
   Nevertheless, the interest of the accused person’s right to a public hearing grows stronger during the trial phase. Thus, for instance, the Trial Chamber in Lubanga stated that it would review applications concerning protective measures, including the use of closed sessions, based on individual analysis [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on various issues related to witnesses' testimony during trial, ICC-01/04-01/06-1140, 29 January 2008, paras. 25 and 35). Be that as it may, during the trial in Lubanga, testimony was frequently heard in “private session” and, thus, the public was unable to follow it; however, the Chamber ordered the public reclassification of any portions that do not contain information which may create a security risk [Prosecutor v. Lubanga, ICC T. Ch. I, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, para. 116]. Trial Chamber II followed the same approach in Katanga and Ngudjolo Chui [Prosecutor v. Ngudjolo Chui, Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, 18 December 2012, para. 64]. The excessive or too frequent use of in camera hearings is criticized herein as it is in detriment to the principle of public hearings, which is an important component of the accused’s rights as set out under Article 67(1). Moreover, the excessive frequency of closed hearings, i.e., courts sitting in private, may give the wrong impression. Accordingly, the general principle is the publicity of the ICC proceedings, as derived from Articles 67(1) and 64(7) of the ICC Statute, and protective measures in favour of witnesses and victims “shall be considered to be an exception to this principle” [Prosecutor v. Ruto and Sang, ICC T. Ch. V(A), Decision on the Conduct of Trial Proceedings (General Directions), ICC-01/09-01/11-847, 9 August 2013, para. 30]. However, in practice, “restriction on the principle of public hearings seems to be the rule” [Schabas, 2010, p. 825].
   Second, Article 67(1) also entitles the accused to a fair hearing – this reference to the rather broad and evolving principle of “fair trial” will allow the Court to keep pace with the development of defence rights in international law also insofar as they go beyond the “minimum guarantees” contained in Article 67(1) itself. The Court has already found that the reference to fair trial, read in conjunction with the wording “in full equality”, lays down the principle of equality of arms which requires “that the minimum guarantees contained in Article 67(1) must be generously interpreted, so as to ensure the defence is placed insofar as possible on an equal footing with the prosecution” [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on defence's request to obtain simultaneous French transcripts, ICC-01/04-01/06-1091, 14 December 2007, para. 18]. Moreover, as concluded by Pre-Trial Chamber II, fairness is “[…] closely linked to the concept of “equality of arms”, or of balance between the parties during the proceedings. As commonly understood, it concerns the ability of a party to proceedings to adequately make its case, with a view to influencing the outcome of the proceedings in its favour” [Situation in Uganda, ICC PT. Ch. II, Decision on Prosecutor’s Application for leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest under Article 58, ICC-02/04-01/05-20-US-Exp , 19 August 2005, para. 30]. Even though “fairness” is worded in relation to the accused, it is applicable to all participants in the proceedings [Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on the Prosecutor’s Applications for Leave to Appeal Dated the 15th Day of March 2006 and to Suspend or Stay Consideration of Leave to Appeal Dated the 11th Day of May 2006, ICC-02/04-01/15-64, 10 July 2006, para. 24].
   Third, all hearings before the Court must be conducted impartially, i.e., without prejudice or bias on the part of the Court [see Schabas, 1999, p. 852; Schabas, 2008, p. 1255; and Schabas, 2010, pp. 800-801]. As opposed to human rights law and earlier drafts, the Statute does not refer to the requirement of independence of the court. Subjectivity is also part of the analysis of “conducted impartially” [Schabas, 2010, p. 801]. As stated by the Appeals Chamber: “The absence of bias, real or apparent, is what legitimises a judicial body to administer justice” [Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment in the Appeal by Ngudjolo Chui of 27 March 2008 against the Decision of Pre Trial Chamber I on the Application of the Appellant for Interim Release, ICC-01/04-01/07-572, 9 June 2008, para. 10].
   Finally, the phrase “in full equality” lays down the principle that all persons shall be equal before the Court. As stated above, this phrase, read in conjunction with the general fair trial requirement, also lays down the principle of equality of arms. Whether the principle of “equality of arms” is applicable vis-à-vis victim participants is discussed if and when the latter apply to submit evidentiary material during trial and, additionally, when ruling on the admissibility of such evidence, the Chamber considers the prejudice posed by it to a fair trial (Article 69(4)) [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings, ICC-02/05-03/09-410, 26 October 2012, para. 152].

Cross-references:
Article 55, 63(2), 64(7), 67(1)(d), 68(1), (2), (4) , 69(4), 72(7)
Rule 121(1)
Regulations 20 and 21

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(a)

[547] (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;
Article 67(1)(a) endeavours to provide the accused with information which is necessary for the defence preparation [Schabas, 1999, p. 853; Schabas, 2008, p. 1256; and Schabas, 2010, p. 802]. Article 67(1)(a) contains the right of the accused to be informed of the case against him or her. This right is complemented by similar provisions during investigation (Article 55(2)(a)) and in the context of the confirmation hearing (Article 61(3)), as well as by the disclosure requirements in Article 67(2). Taken together, these provisions aim at granting the accused all the information he or she needs to be able to adequately prepare a defence. The accused must, at the minimum, be given a readable version of the warrant of arrest [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-8-US-Corr, 24 February 2006, p. 2] and access to all public documents in the case [cf. Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Defence Request for Unrestricted Access to the Entire File of the Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-103, 17 May 2006]. Article 67(1)(a) also generally requires that documents classified ex parte be re-classified, if need be after redactions, so that they can be made available to the defence [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision Concerning Transcripts of in Camera Meeting Held on 17 March 2006, ICC-01/04-01/06-78, 19 April 2006]. The Article does not, however, grant a right to be given access to the entire record of the case [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Defence Request for Unrestricted Access to the Entire File of the Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-103, 17 May 2006].
   In the context of the confirmation hearing, Rule 121(3) of the RPE states that the prosecution must provide to the defence a document containing the charges 30 days before the hearing; as to the necessary contents of this document [see Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, 29 January 2007, paras. 146-153].
   All information must generally be in a language the accused understands and speaks. This does not mean, however, that all documents which must be provided to the defence (such as potentially exculpatory evidence under Article 67(2)) must be translated, it suffices that translations are provided for certain documents which enable the accused to get a general picture of the case against him or her [see Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Requests of the Defence of 3 and 4 July 2006, ICC-01/04-01/06-268, 4 August 2006, pp. 5–6] and for those documents which other provisions require to be translated [see rule 76(3) of the RPE on statements of witnesses].
   Similarly, in Bemba, the Pre-Trial Chamber stated that the defendant does not have an absolute right to have all documents translated into a language which he fully understands and speaks [Prosecutor v. Bemba, ICC PT. Ch. III, Decision on the Defence's Request Related to Language Issues in the Proceedings, ICC-01/05-01/08-307, 4 December 2008, para. 11]. The defendant is entitled to receive translation of such documents that inform him in detail of the nature, cause and content of the charges brought against him, namely: i) the Prosecutor’s application for a warrant of arrest and the Chamber’s decision thereon; ii) the Document Containing the Charges and the List of Evidence as well as any amendment thereto; and iii) the statements of prosecution witnesses [ibid., para. 16].
   Where it is difficult to establish which languages the accused fully understands and speaks, Chambers may request further information on this issue from the Registry [see Prosecutor v. Katanga, PT. Ch. I, Order for a Report of Additional Information on the Detention and Surrender of the Detainee Germain Katanga, ICC-01/04-01/07-45, 26 October 2007]. Articles 67(1)(a) and (f) of the Statute do not grant the accused the right to choose the language in which he must be informed of the charges against him and in which translation of documents and interpretation must be provided. The standard is “that of a language that the arrested person or the accused ‘fully understands and speaks’ so as to guarantee the requirements of fairness”. [see Prosecutor v. Katanga, ICC PT. Ch. I, Decision on Defence Request concerning languages, ICC-01/04-01/07-127, 21 December 2007, para. 30]. The defence was granted leave to appeal against the aforementioned decision [Prosecutor v. Katanga, ICC PT. Ch. I, Decision on the Defence Application for Leave to Appeal the Decision on the Defence Request Concerning Languages, ICC-01/04-01/07-149, 18 January 2008, p. 7]. Finally, the Appeals Chamber considered that an accused fully understands and speaks a language if he/she “is completely fluent in the language in ordinary, non-technical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer” and, in case of any doubt, “the language requested by the person should be accommodated.” [Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", ICC-01/04-01/07-522, 27 May 2008, para. 61]. More recent case-law has applied these findings. In Banda and Jerbo, the Trial Chamber ordered the Prosecution to translate into Zaghawa the witness statements intended to be relied upon for trial purposes based on Rule 76(3) and Article 67(1)(a) and (f) [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation, ICC-02/05-03/09-214, 12 September 2011, paras. 25-32; and Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings (Concurring Separate Opinion of Judge Eboe-Osuji), ICC-02/05-03/09-410, 26 October 2012, paras. 130-135].
   Pursuant to the objectives in Article 67(1)(a) and (b), that the accused “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” and must “have adequate time and facilities for the preparation of the defence”, the Pre-Trial Chamber in Bemba ruled that the evidence exchanged between the parties and communicated to the Chamber must be the subject of a sufficiently detailed legal analysis relating the alleged facts with the constituent elements corresponding to each crime charged. This would also expedite the proceedings [Prosecutor v. Bemba, ICC PT. Ch. III, Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the Parties, ICC-01/05-01/08-55, 31 July 2008, paras. 65-66, 69 and 72].
   The impact of regulation 55 (change of legal characterization of the facts) of the Regulations of the Court on the rights of the accused has been examined by the ICC. The Appeals Chamber determined that, under Article 67(1)(a) of the ICC Statute, the Trial Chamber may change the legal characterization of the facts during trial, and without formally amending the charges, which is supported by regional human rights instruments and jurisprudence [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", ICC-01/04-01/06-2205, 8 December 2009, para. 84]. Accordingly, regulation 55 is not intrinsically incompatible with the accused person’s rights as Article 67(1)(a) does not preclude a change of the legal characterisation of the facts during trial and without formally amending the charges [Prosecutor v. Bemba, ICC T. Ch. III, Decision lifting the temporary suspension of the trial proceedings and addressing additional issues raised in defence submissions ICC-01/05- 01/08-2490-Red and ICC-01/05-01/08-2497, ICC-01/05-01/08-2500, 6 February 2013, para. 16].
   Having said so, modifying the legal characterisation of the facts may only be conducted with regard to the facts and circumstances depicted in the charges. The restriction of the power to re-characterise facts, vested in the Trial Chamber, guarantees perfect compatibility between, on the one hand, regulation 55 and Article 74(2) of the ICC Statute and, on the other one, Article 67(1)(a) [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the implementation of regulation 55 of the Regulations of the Court and Severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012, para. 21]. In addition to the accused person’s right to submit observations on the re-characterisation, it is pivotal to secure that “all facts underpinning the charges whose legal character is modified were clearly set out in the original indictment, from the outset” [ibid., para. 22]. The accused person’s right to be informed promptly and in detail of charges against him/her includes both the facts and their legal characterisation and, therefore, the accused has to be timely put on notice that the legal characterisation could be modified under regulation 55 of the Regulations of the Court [Prosecutor v. Katanga, ICC T. Ch. II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-tENG, 7 March 2014, para. 1486].

Cross-references:
Articles 55(2)(a), 61(2)(b), 61(3), 67(1)(a), and 67(2), Regulation 55.

Authors: Björn Elberling and Juan Pablo Pérez-León-Acevedo

Updated: 30 June 2016

Article 67(1)(b)

[548] (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;
Article 67(1)(b) contains certain rights that aim at allowing the accused to mount an effective defence, namely the right to adequate time and facilities for the preparation of this defence and to free and confidential communication with counsel. It is pivotal to guarantee an appropriate preparation of the defence and, thus, the suspect or accused can confidentially and unrestrictedly communicate with his/her counsel and assistants [Gut et al., 2013, p. 1210].
   The notion of adequate time is hard to define precisely, especially in the context of the rather complex proceedings before international criminal tribunals. Adequate time will in any case depend on the particular circumstances of the case [see Schabas, 1999, p. 854; Schabas, 2008, p. 1258; and Schabas, 2010, p. 805]. Notably, in the first pre-trial proceedings before the ICC, a defence request to postpone the confirmation hearing under this Article was rejected [see Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Defence Request to Postpone the Confirmation Hearing, ICC-01/04-01/06-686, 8 November 2006]. For provisions in the RPE which aim at ensuring adequate time before certain major procedural steps, see, e.g., Rule 121(3). As for self-representing accused, international practice, including that of the ICC, evidences that he/she is provided with some level of facilities and legal assistance [Gut et al., 2013, p. 1252].
   Communication with counsel shall be free and “in confidence”, i.e., not within the hearing of third persons; this is further elaborated upon in Regulation 97. Further to the wording of Article 67(1)(b), the accused may also communicate freely with diplomatic and/or consular representatives of his or her state (Regulation 98).
   Additionally, the right under Article 67(1)(b) is present in the robust disclosure obligations that start early in the proceedings [Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled ‘Decision on application for interim release’, ICC-01/05-01/08-321, 16 December 2008, para. 33. See also Schabas, 2010, p. 805].
   Concerning the modification of the legal characterization of facts by the Trial Chamber in the course of the trial (regulation 55 of the Regulations of the Court), the Appeals Chamber considered that it must not render the trial unfair. Thus, the Appeals Chamber noted that Article 67(1)(b) of the Statute provides for the accused person’s right to “have adequate time and facilities for the preparation of the defence”. In order to avoid violations of this provision, regulation 55(2) and (3) contain “several stringent safeguards for the protection of the rights of the accused. How these safeguards will have to be applied to protect the rights of the accused fully and whether additional safeguards must be implemented […] will depend on the circumstances of the case” [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", ICC-01/04-01/06-2205, 8 December 2009, para. 85]. Thus, regulation 55 refers to Article 67(1)(b) and its stringent safeguards to protect the accused person’s rights. By referring to the case-law of the European Court of Human Rights (ECtHR) (Pélissier and Sassi v. France and Mattei v. France), Trial Chamber II in Katanga and Ngudjolo Chui noted that a breach of the accused person’s fair trial rights may take place when the legal characterisation of the facts changed without providing the defence the opportunity to file observations [Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012, paras. 35-37].
   In Ngudjolo Chui, the Appeals Chamber examined whether the conditions of detention of the accused, at an administrative detention centre at Schipol Airport (The Netherlands), infringed upon his fair trial rights, in particular those laid down in Article 67(1)(b). First, under Article 3(7)(2) of the Internal Rules and Regulations for Aliens Detention Centre (“Internal Rules and Regulations”), the Appeals Chamber noted that a detainee may be visited by his/her legal assistant on every working day during working hours, and outside these hours when required by the interests of justice. The confidentiality of these communications was guaranteed by the fact that those privileged visits occurred in a visiting room without any detention centre staff member and that solely indirect surveillance was performed by a staff member outside the visiting room. Second, if the accused person’s counsel is provided with hard copies of the documents necessary for the preparation of the defence and thus the accused has access to his case file, the lack of electronic access to it does not prejudice the accused person’s ability to prepare his defence. Third, although whether the accused may receive calls is not explicitly mentioned in the Internal Rules and Regulations, a telephone was located in the accused person’s cell and he was given some weekly telephone credit. Additionally, under Article 3(8)(2) of the Internal Rules and Regulations, telephone calls to privileged contacts cannot be monitored. Fourth, corresponds to the accused to make the necessary practical arrangements vis-à-vis his/her co-detainee to talk confidentially with his/her lawyer. Concerning the accused person’s complaints about being disturbed by his co-detainee, following the Internal Rules and Regulations, the accused needs to forward those complaints to the relevant bodies of the administrative detention centre. Therefore, based on the above-analysed considerations, the Appeals Chamber found that the conditions in the administrative detention centre did not violate the accused person’s fair trial rights in relation to the proceedings before the ICC [Prosecutor v. Ngudjolo Chui, ICC A. Ch., Decision on “URGENT application by Mathieu Ngudjolo's Defence seeking the Appeals Chamber's instructions on the modalities of preparation for the appeals procedure in view of Mathieu Ngudjolo's current situation (Article 67 of the Rome Statute)", ICC-01/04-02/12-67, 24 April 2013, paras. 8-13]. This decision constitutes a good example of how important is to examine Article 67(1) provisions of the ICC Statute in a systematic and contextual manner paying attention to both the whole ICC legal framework and specific circumstances of the accused person. By doing so, the ICC Chambers may accurately determine whether and to what extent the accused person’s fair trial rights have been violated.
   In Banda and Jerbo, the defence alleged its inability to conduct interviews to identify and locate potential witnesses with knowledge of the facts relevant to the case due to the obstructionist efforts of the Government of Sudan. In addressing this claim, Trial Chamber IV found that the defence failed to substantiate it properly as it was necessary to identify available evidence with sufficient specificity under the information available to it at the respective stage. Even though the Chamber may consider problems found by the defence when weighting the whole evidentiary materials, an unsubstantiated claim does not meet the high threshold required for staying the proceedings [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings, ICC-02/05-03/09-410, 26 October 2012, paras. 101 and 102].
   Pre-Trial Chamber I in Gbagbo, considering the circumstances of the case, found that allowing the Prosecutor to provide more evidence or conduct further investigation for a limited period of time would affect no right of the accused as he would be “given appropriate time to respond to the new evidence presented by the Prosecutor” (Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, paras. 42 and 43).
   Duly meeting the requirements of Article 67(1)(b) and (e) of the Statute requires that the Chamber itself reviews the circumstances under which the recharacterisation phase of the proceedings took place, which means to dwell especially on all measures adopted to protect the accused person’s rights [Prosecutor v. Katanga, ICC T. Ch. II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-Teng, 7 March 2014, para. 1539]. Attention should be drawn to whether the matter of the opportunity, understood as broadly as possible, was afforded to the defence to: i) present its case on the recharacterisation envisioned and to put across its view on the correlation between the law and the evidence on record; and ii) the opportunity afforded to the defence to tender new evidence into the record, after notice of possible recharacterisation [ibid.].

Cross-references:
Article 67(1)(e), Rule 121(3), Regulations 55(2), 55(3), 97 and 98, Internal Rules and Regulations for Aliens Detention Centre Articles 3(7)(2), 3(8)(2)

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(c)

[549] (c) To be tried without undue delay;
Article 67(1)(c) grants the right to a trial without undue delay and is identical to its respective model provision under the ICCPR. What exactly this means, especially in the context of international criminal justice, is hard to determine – so far, proceedings at the Court have been similarly slow as at other international criminal tribunals. Thus, in Lubanga, the proceedings lasted roughly a year from initial appearance of the accused to confirmation of charges. The trial started more than three years after the initial appearance, took other three years to be completed, and the appeals phase lasted more than two years and a half. This trend has also been present in the other ICC completed trials although these have been shorter. Thus, considering the time elapsed between the accused person’s first appearance before the Trial Chamber and the end of his trial, approximately 6 years and a half passed in Katanga, and approximately 4 years and 10 months elapsed in Ngudjolo Chui. As for Bemba, roughly 6 years and a half have passed but the Trial Chamber judgment has yet to be rendered. Two cases were joined by the Appeals Chamber paying attention to the impact of this decision on the expeditiousness of the trials [Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui Cases, ICC-01/04-01/07-573, 9 June 2008, para. 8]. There are several factors behind slowness of international criminal proceedings, which include inter alia the complexity of the facts and, especially, the complexity of the proceedings [see Heinsch, 2009, pp. 481-496]. Be that as it may, scholars and case-law on the ICCPR indicate that the time limit is considered from the moment when the suspect or accused is informed of steps towards his/her prosecution [see Schabas, 2008, p. 1259; and Schabas, 2010, p. 806].
On the other hand, in many cases, the defence has not complained of proceedings taking too long, but has rather in some instances argued for further delays [see Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Defence Request to Postpone the Confirmation Hearing, ICC-01/04-01/06-686, 8 November 2006]. In fact, the full exercise of other defence rights contained in Article 67(1) may actually require certain delays, which is why the right to trial without undue delay may sometimes in effect be a limiting factor on the scope of other defence rights [see, e.g., ICC PT Ch. I, Prosecutor v. Lubanga, Decision on the Requests of the Defence of 3 and 4 July 2006, ICC-01/04-01/06-268, 4 August 2006, p. 4]. In Lubanga, the Appeals Chamber found that a:

[…] conditional stay of the proceedings may be the appropriate remedy where a fair trial cannot be held at the time that the stay is imposed, but where the unfairness to the accused person is of such a nature that a fair trial might become possible at a later stage because of a change in the situation that led to the stay.
If the obstacles that led to the stay of the proceedings fall away, the Chamber that imposed the stay of the proceedings may decide to lift the stay of the proceedings in appropriate circumstances and if this would not occasion unfairness to the accused person for other reasons, in particular in light of his or her right to be tried without undue delay (see Article 67(1)(c) of the Statute) [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486, 21 October 2008, paras. 4 and 5].

   Thus, the Appeals Chamber determined two conditions under which a stay may be vacated: i) if the forensic obstacles leading to the stay “fall away”; and ii) if vacating the stay would not occasion unfairness to the accused “for other reasons, in particular in light of his or her right to be tried without undue delay” [ibid., para. 80]. The second condition is reiterated: “If a trial that is fair in all respects becomes possible as a result of changed circumstances, there would be no reason not to put on trial a person who is accused of genocide, crimes against humanity or war crimes—deeds which must not go unpunished and for which there should be no impunity [...]” [ibid., para. 81]. The previous judgment implies that a benign remedy of “temporary” stay may become a situation of “permanent” stay, which also takes place when vacating the stay would not be unfair to the accused due to other reasons, especially, in light of his/her “right to be tried without undue delay” [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings (Concurring Separate Opinion of Judge Eboe-Osuji), ICC-02/05-03/09-410, 26 October 2012, para. 12]. The Appeals Chamber’s consideration, in Lubanga, of the right to a speedy trial as an incident of a stay of proceedings tasks the discretion of the Trial Chamber which would have to choose between: i) preserving the right to a speedy trial “by requiring the case to proceed to trial, at the end of which any complaint of serious prejudice to fair trial is considered as part of the overall evaluation of the case”; and ii) staying the proceedings prior to trial for an indefinite period, “at the end of which the case may be resumed when the obstacles to fair trial fall away” [ibid., para. 86].
The trial in Lubanga was stayed for a second time in 2010. The failure of the Prosecutor to disclose to the defence the identity of an intermediary who worked in the field on behalf of the Office of the Prosecutor (OTP) triggered the abuse of process leading to the stay of the proceedings [see McDermott, 2013, p. 797]. Accordingly, the Trial Chamber found the Prosecutor’s refusal to comply with its orders to be not just a smooth delay in the conduct of the proceedings but to render a fair trial impossible [Prosecutor v. Lubanga, ICC T. Ch. I., Redacted Decision on Intermediaries, ICC-01/04-01/06-2434-Red2, 31 May 2010, para. 20]. The Appeals Chamber later overruled such stay. It determined that sanctions under Article 71 of the ICC Statute constitute the proper mechanism for a Trial Chamber to maintain control of the proceedings and, therefore, to ensure a fair trial when a party deliberately refuses to follow its directions [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled "Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU", ICC-01/04-01/06-2582, 8 October 2010, paras. 3 and 58]. Thus, sanctions should be conducted before ordering a stay of proceedings and should be given reasonable time to trigger compliance [ibid., paras. 3 and 59-62].
   In Lubanga, between the imposition of stay and its lifting, the OTP asked the Trial Chamber to partially lift the stay to hear evidence that could be later included in the trial record in case of lifting the stay. The Trial Chamber rejected it by referring to the second prong of its decision, i.e., the OTP was seemingly able to select the judicial orders to comply with based on its interpretation of its responsibilities under the ICC Statute [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the "Prosecution's application to take testimony while proceedings are stayed pending decision of the Appeals Chamber", ICC-01/04-01/06-2574, 24 September 2010, para. 21]. The Trial Chamber established that while the Prosecutor keeps reserving to himself the right not to implement the Chamber’s orders if (s)he considers them to conflict with his/her other obligations, justice can no longer be done in this case [ibid., para. 22]. Thus, “to ensure that the trial of the accused is conducted with full respect for his rights”, and to guarantee the rule of law, the Prosecutor has to accept the Chamber’s authority, which is “an irremovable and fundamental ingredient of a fair criminal trial” [ibid.].
   The Prosecutor is only required to support each charge with “sufficient” evidence during the confirmation hearing (Article 61(5) of the ICC Statute). However, the ICC practice has understood that the investigation should be mostly complete at the hearing of confirmation of charges, which “ensures continuity in the presentation of the case and safeguards the rights of the Defence […] [and] also ensures that the commencement of the trial is not unduly delayed and conforms with the right of the Defence to be tried without undue delay pursuant to Article 67(1)(c) of the Statute”. [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, para. 25]. Determining whether Article 61(7)(c)(i) (adjournment of the confirmation of charges hearing, request for the Prosecutor to provide further evidence or conduct further investigation) of the ICC Statute unduly infringes a person’s right to be tried without undue delay and, in general, whether there is a violation of Article 67(1)(c) “must be determined on a case-by-case basis, taking into account the particularities of the case and in accordance with internationally recognized human rights” [ibid., para. 39].
   Indeed, the ICC practice evidences the application of a test which considers the following prongs. First, length of on-going proceedings which may include extraordinary proceedings. Second, the seriousness of the charges. Third, the complexity of the case at the ICC, which normally involves multiple incidents committed by multiple perpetrators over several months or even years. Fourth, whether requesting further additional evidence is explicitly provided for in the ICC Statute [ibid., paras. 40-41]. Therefore, e.g., in Gbagbo, the Chamber found that allowing the Prosecutor to provide further evidence or conduct further investigation for a limited period does not unduly breach the accused person’s right to be tried without undue delay [ibid., para. 42]. This test to determine whether there has been undue delay is relatively similar to that applied by regional human rights courts. In international criminal law, it is common to refer to the complexity of the case (including factual or legal issues), and the situations must be examined on a case-by-case basis as well as an undue delay in criminal proceedings may be compensated by, e.g., decrease in sentence [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012, para. 43]. The ICC Chambers may freely consider the potential impact on the accused person’s rights to evaluate whether any compensatory measures are warranted [ibid.]. Although triggering regulation 55 may increase the length of the proceedings, it “does not inevitably entail a violation of the right to be tried without undue delay” [ibid., para. 46]. The right to be tried without delay requires inter alia to reduce to a minimum the time between the end of the pre-trial phase and the beginning of the trial [Prosecutor v. Ongwen, ICC PT. Ch. II, Decision Postponing the Date of the Confirmation of Charges Hearing, ICC-02/04-01/15-206, 6 March 2015, para. 30].
   The Appeals Chamber found “that a change of the legal characterisation of the facts pursuant to Regulation 55 as such will automatically lead to undue delay of the trial. Whether a re-characterisation leads to undue delay will depend on the specific circumstances of the case” [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court", ICC-01/04-01/06-2205, 8 December 2009, para. 86]. Thus, a change of the legal characterisation of facts under regulation 55 leads neither automatically nor inherently to undue delay of the trial as this depends on the case.
   Diverse legal and practical factors may determine the need for adjournments of varying duration, including further investigation, consideration of an issue by another Chamber (appeal included), permission of an accused to be excluded (including the need for dealing with an urgent national security domestic matter), and difficulties in scheduling witnesses [Prosecutor v. Kenyatta, ICC T. Ch. V(B), Decision on Prosecution's applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, ICC-01/09-02/11-908, 31 March 2014, para. 77]. In contrast to the more “drastic” remedy of a stay of proceedings, the decision “on whether or not to grant the requested adjournment is based on a weighing of the interests of justice in this case, including the rights of the accused and the interests of victims” [ibid., para. 78]. The Chamber is obligated under Article 64(2) of the ICC Statute to ensure that the proceedings are conducted with full respect to the accused person’s rights, in a form that is fair and expeditious, and consistent with internationally recognised human rights [ibid., para. 80]. Actually, a “further adjournment without justifiable and compelling reasons could constitute undue delay contrary to the rights of the accused” [ibid.].
   Finally, concerning how victim participation may potentially result in undue delay of the proceedings, the ICC Statute does not authorize victim participation to be in detriment of the accused person’s rights and, indeed, Article 68(3) states that such participation must take place in a way “not prejudicial to or inconsistent with the rights of the accused” [see also Zappalà, 2010, p. 146].

Cross-references:
Articles 61(5), 61(7)(c)(i), Rule 101, Regulation 55

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(d)-1

[550] (d) Subject to Article 63, paragraph 2, to be present at the trial
Besides the rights to conduct a defence (see comment to next sub-paragraph), Article 67(1)(d) also contains the right of the accused to be present at trial. This generally precludes trials conducted in his or her absence. The right to presence is, however, not without limitations, the most important of which is the removal of the defendant for disruptive behavior – see Article 63(2)). Hearings in the absence of an accused who is unable to attend for health reasons, however, would be in violation of Article 67(1)(d) [see Terrier, 2002, pp. 1283–1284]. Finally, an exception to the right to presence may also apply where hearings are conducted ex parte, i.e., in the absence not only of the accused, but of the defence generally, for reasons of witness safety or protection of national security information [see Article 72(7), RPE rule 74(4) as well as Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Defence Motion concerning the Ex parte hearing of 2 May 2006, ICC-01/04-01/06-119, 22 May 2006]. Contrary to the misleading wording of Article 76(4), Article 67(1)(d) applies without exception to the hearing in which the sentence is pronounced [see Schabas, 1999, p. 856; Schabas, 2008, pp. 1259-1260; and Schabas, 2010, p. 807].
    The right to be present at trial presupposes more than physical presence, but also requires that the accused be able to adequately follow and take part in the proceedings; in other words, the accused must be fit to stand trial. This requirement is not explicitly laid down in the Statute, but applies as a necessary corollary to the right to presence [see Schabas, Article 63, 1999, p. 807; and Schabas, 2010, pp. 754-755 and 757-758] and may also be deduced from Rule 135(4) of the RPE. The overall capacity needed for fitness to stand trial is the same regardless of the stage of the proceedings, i.e., Article 67(1) applies to pre-trial and trial stages [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court, ICC-02/11-01/11-286-Red, 2 November 2012, para. 54]. In Gbagbo, Pre-Trial Chamber I examined whether the accused was healthy enough to stand trial-concluding in the affirmative. In interpreting the scope of Article 67(1), the Chamber referred to Article 6 of the European Convention on Human Rights (ECHR) and the respective case-law of the ECtHR as well as international and hybrid criminal courts legal sources to point out that the accused person’s right to participate effectively in a criminal trial requires that he/she is not only present but that the accused can also hear and follow the proceedings [ibid., paras. 46 and 49].
   A special rule concerning presence of the accused at the confirmation hearing is contained in Article 61(2), it allows confirmation hearings in the absence of the accused under certain circumstances. Concerning the possibility of the confirmation hearing in absentia, some academics have considered that it may be held provided that if, after the first appearance, the defendant either cannot be found or fled [Marchesiello, 2002, p. 1244]. As suggested by former ICC Judge Ekaterina Trendafilova, a close examination of the relevant provisions would indicate that a confirmation hearing in absentia absent a prior initial appearance at the ICC is compatible with both Article 67(1) rights and the RPE “A number of provisions of the Statute and the Rules make clear that the drafters intentionally provided for the possibility of a confirmation hearing in absentia under Article 61(2)(b), prior to surrender and an initial appearance before the Court” [Trendafilova, 2009, p. 453].
   As a result of the 2013 amendments to the RPE (General Assembly of States Parties to the ICC Statute, Resolution ICC-ASP/12/Res.7, 27 November 2013), the scope of the right of the accused to be present at trial has been fleshed out, introducing flexible provisions which overall speaking favour the accused. Thus, rule 134bis allows the presence of the accused via video technology: “An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present through the use of video technology during part or parts of his or her trial”. Under rule 134ter, an accused subject to summons to appear may request the Chamber to be excused and be represented by counsel during part(s) of his/her trial, under certain conditions, namely, i) existence of exceptional circumstances, ii) inadequacy of alternative measures, iii) the accused has waived his/her right to be present at trial, and iv) fulfilment of the accused’s rights during his/her absence. Finally, rule 134quarter allows an accused subject to a summons to appear to be excused from presence at trial because of his/her extraordinary public duties at the highest national level provided that “it is in the interests of justice and provided that the rights of the accused are fully ensured” and this decision on excusal from presence may be reviewed at any time. These new rules, in particular, rule 134quarter were introduced in the context of the increasing tension between the African Union States and the ICC as a consequence of the cases against the President and Vice-President of Kenya, i.e., Mr. Uhuru Muigai Kenyatta (no longer prosecuted) and Mr. William Samoei Ruto respectively. Trial Chamber V(a) and (B) had excused Mr. Ruto and Mr. Kenyatta from continuous presence at trial with certain exceptions [Prosecutor v. Ruto and Sang, ICC T. Ch. V(a), Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09/01/11-777, 18 June 2013; and Prosecutor v. Kenyatta, ICC T. Ch. V(B), Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, ICC-01/09-02/11-830, 18 October 2013]. However, the Appeals Chamber reversed the Trial Chamber’s decision based on the following key findings:

1. Article 63(1) of the Statute does not operate as an absolute bar in all circumstances to the continuation of trial proceedings in the absence of the accused.
2. The discretion that the Trial Chamber enjoys under Article 63(1) of the Statute is limited and must be exercised with caution. The following limitations exist: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested [Prosecutor v. Ruto and Sang, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18 June 2013 entitled “Decision on Mr Ruto's Request for Excusal from Continuous Presence at Trial”, ICC-01/09-01/11-1066, 25 October 2013].

Thus, the previously referred amendments to the RPE codified these findings of the Appeals Chamber. Finally, under Article 63(1) and Rule 134quarter, the Trial Chamber in Ruto and Sang excused Ruto from continuous presence at trial under the condition of filing a waiver of his right to be present at trial and be physically present for certain hearings [Prosecutor v. Ruto and Sang, ICC T. Ch. V(a), Reasons for the Decision on Excusal from Presence at Trial under Rule 134quarter, ICC-01/09-01/11-1186, 18 February 2014, para. 10. See also Prosecutor v. Ruto and Sang, ICC T. Ch. V(A), Decision on 'Prosecution's application for leave to appeal the decision on excusal from presence at trial under Rule I34quarter, ICC-01/09-01/11-1246, 2 April 2014].

Cross-references:
Articles 61(2), 63(1), 63(2), 72(7) and 76(4), Rules 74(4), 135(4), 134bis, 134ter, 134quarter, 135(4).

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(d)-2

[551] 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;
Article 67(1)(d) also contains what may be termed the right to conduct a defence, which may again be subdivided into three specific rights.
    First of all, the provision contains the right to conduct the defence in person, i.e. the right to self-representation: The accused is generally free to choose to forego the assistance of defence counsel and to represent him- or herself, provided that she is mentally and intellectually able to do so. While the wording of Article 67(1)(d) does not contain any reference to restrictions of the right to self-representation, such restrictions are legion in the jurisprudence of other international tribunals, where the right to self-representation is guaranteed in words very similar to those of Article 67(1)(d). Exceptions accepted by other tribunals include medical reasons, fear of disruption or delay of the trial, and the potential of prejudice to co-accused [see Knoops, 2005, pp. 66–80]. The accused person’s self-representation should not be used to obstruct the proceedings, which requires the ICC Trial Chambers to take actions to prevent unnecessary disruption [see further Heinsch, 2009, pp. 492-494]. Accordingly, self-representation is not an absolute right and may be restricted when there is a continuous and substantial obstruction of trial even if the obstruction is unintentional [see Gut et al., 2013, p. 1217; Trendafilova, 2009, p. 449]. Whether the ICC will follow other tribunals in limiting the right to self-representation in this way, and which consequences it will draw from any such limitations (particularly whether it will appoint defence counsel to take over the defence, standby counsel prepared to take over the defence if need be, or amici curiae to safeguard the rights of the defence independently of the accused [see, e.g., Knoops, 2005, pp. 66–80]) still remains to be seen.
   Be that as it may, self-representation has been almost absent from the ICC’s practice. Only Lubanga requested to represent himself but this took place solely for a short period and for a specific objective [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Prosecution and Defence applications for leave to appeal the Decision on the confirmation of charges, ICC-01/04-01/06-915, 24 May 2007, paras. 17-18]. The meaningful exercise of the accused person’s fair trial rights does not require that he/she is capable of exercising them as if/she were trained as a lawyer or a judicial officer [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court, ICC-02/11-01/11-286-Red, 2 November 2012, paras. 52]. According to international practice, those assigned to assist a self-representing defendant need to follow the same requirements applicable to legal counsels and assistants under the general legal aid scheme [Gut et al., 2013, pp. 1252-1253].
   Second, the Article contains the right to be represented by counsel of one’s choosing. In practice, the choice of counsel is not entirely unlimited; accused may only choose counsel who fulfil certain requirements in terms of experience and languages spoken etc. [see Rule 22 and Regulation 67 et seq]. The Article also states that the accused must be informed of this right. At the ICC and other international and hybrid criminal courts, to guarantee effective representation, there is a trend aligning towards the qualifications for the accused person’s assigned counsel to those for an equivalent position in the Prosecution side [Gut et al., 2013, p. 1237]. At the ICC and other international and hybrid criminal courts, the responsibility to guarantee effective representation has been placed on the counsel and the task of verifying the quality of the counsel’s work on the accused [ibid., p. 1225]. The accused person’s right to choose his/her legal counsel must “be reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial including, no doubt, the reasonableness of the time within which the proceedings must be held” [Prosecutor v. Lubanga, ICC A. Ch., Reasons for "Decision of the Appeals Chamber on the Defence application 'Demande de suspension de toute action ou procédure afin de permettre la désignation d'un nouveau Conseil de la Défense' filed on 20 February 2007" issued on 23 February 2007, ICC-01/04-01/06-844, 9 March 2007, para. 15]. The right to counsel and legal assistance is not applicable to a defendant who has not been arrested or summoned before the ICC; however, the defendant can challenge the admissibility and jurisdiction and the issuance of the arrest warrant prior to his/her surrender to the ICC [Prosecutor v. Kony et al., ICC A. Ch., Judgment on the appeal of the Defence against the "Decision on the admissibility of the case under Article 19 (1) of the Statute" of 10 March 2009, ICC-02/04-01/05-408, 16 September 2009]. Once the defendant has appeared before the ICC and if he/she has manifested his/her wish to be represented by a counsel, the Registry has to ensure both that a counsel is swiftly assigned and that there is no excessive gap between the moment when the counsel has resigned and when a new one has yet to be appointed [Prosecutor v. Lubanga, ICC A. Ch., Reasons for the Appeals Chamber's Decision to Extend Time Limits for Defence Documents issued on 3 April 2007, ICC-01/04-01/06-871, 20 April 2007, para. 6]. Counsels are expected to act diligently. Otherwise, the Chamber might reject to consider motions although they are filed to secure defendant’s fundamental rights [Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled "Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings", ICC-01/04-01/07-2259, 12 July 2010].
   In Saif Gaddafi and Al-Senussi, Pre-Trial Chamber I found that practical impediments to the provision of effective and timely legal representation to the accused Gaddafi by counsel from the OPCD made it appropriate and necessary to appoint an alternative legal representative [Prosecutor v. Gaddafi and Al-Senussi, ICC PT. Ch. I, Decision on the "Request to Withdraw", ICC-01/11-01/11-311-Red, 17 April 2013, para. 18]. Noting the complexities of this case and in the interests of justice, the Chamber provisionally appointed a legal representative until the accused would exercise his right to freely choose counsel under Article 67(1)(d) or until admissibility challenge proceedings would be definitively disposed of, at which point the Chamber would revisit the legal representation question [ibid., paras. 19-20].
   The legal frameworks of the ICC and other international and hybrid criminal courts contain the fundamental right to legal representation; however, daily practice courtroom at those judicial institutions and beyond has not always complied with it, e.g., legal assistance has not always been consistently applied to national proceedings related to international criminal trials [Gut et al., 2013, p. 1264].
   Third, where the accused is (wholly or partially) unable to pay for counsel, counsel will be assigned and paid for by the court. Following the example of Article 14(3)(d) of the ICCPR, this right is restricted to cases where the interests of justice require assignment of counsel, although it is hard to imagine that this will lead to a refusal to assign counsel in cases before the ICC. For instance, on 22 February 2008, Ngudjolo Chui was provisionally found indigent by the Registrar, which was subject to verification by the ICC and, indeed, the ICC bore the cost of his defence [see Prosecutor v. Mathieu Ngudjolo Chui, Case Information Sheet, ICC-01/04-02/12, updated as of 27 February 2015, p. 2]. Where counsel is assigned and paid by the court, the accused does not have an unqualified right to choose counsel, although his or her wishes should be taken into account. In cases before the ICC so far, no controversies seem to have arisen in this regard. There have, however, been some controversies regarding the composition of the defence team, notably the number of legal and other assistants [see Prosecutor v. Lubanga, ICC T. Ch. I, Registration in the record of the case of the "Registrar's Decision on the additional means for the trial phase sought by Mr Thomas Lubanga in his 'Application for additional means under regulation 83(3) of the Regulations of the Court' filed on 3 May 2007", ICC-01/04-01/06-927-tENG, 14 June 2007; and generally Regulation 83 and the commentary thereto]. Moreover, the ICC Prosecutor challenged the appointment of a defence counsel who previously worked at the OTP; however, the Trial Chamber rejected it based on lack of evidence of both conflict of interest and awareness of relevant confidential information, which left no doubts about the counsel’s integrity [Prosecutor v. Bemba, ICC T. Ch. I, Decision on the "Prosecution's Request to Invalidate the Appointment of Legal Consultant to the Defence Team", ICC-01/05-01/08-769, 7 May 2010, para. 45].
   There is no distinction between the crimes under Article 70 (Offences against the administration of justice) and those under Article 5 (genocide, crimes against humanity, war crimes and crime of aggression) concerning the entitlement to legal aid as “Article 67(1) contemplates legal aid ‘[i]n the determination of any charge’”[Prosecutor v. Bemba et al., ICC T. Ch. VII, Decision on the Defence applications for judicial review of the decision of the Registrar on the allocation of resources during the trial phase, ICC-01/05-01/13-955, 21 May 2015, para. 35].
   When accused not wishing to represent themselves are not (yet or anymore) represented by permanent counsel, the court usually assigns duty counsel under Regulation 73 to represent the accused in the meantime [e.g., Prosecutor v. Lubanga, ICC PT. Ch. I, Appointment of Duty Counsel, ICC-01/04-01/06-870, 19 April 2007] or requests the OPCD to do so [Prosecutor v. Katanga, ICC PT. Ch. I, Decision on the appointment of a duty counsel, ICC-01/04-01/07-52, 5 November 2007, p. 3]; this option should, however, only be used sparingly to avoid possible conflicts of interest within the OPCD [see ibid., p. 4].

Cross-references:
Rules 21 and 22, Regulation 73, 77, 83, 97 and 98

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(e)

[552] (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;
Article 67(1)(e) has been described by the Appeals Chamber as introducing an adversarial hearing to the ICC scheme [Prosecutor v. Lubanga, ICC A. Ch., Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the "Directions and Decision of the Appeals Chamber" of 2 February 2007, ICC-01/04-01/06-925, 13 June 2007, para. 18]. Article 67(1)(e) contains some procedural rights which are necessary for the ability of the accused to put up an effective defence at the actual trial.
First of all, this is the right to examination of witnesses against her, including witnesses called by the court [Schabas, 1999, p. 859; Schabas, 2008, p. 1265; and Schabas, 2010, p. 811]. This right will foreseeably be subject to restrictions for reasons of witness protection, as foreseen by Article 68. However, such restrictions will probably not be considered to be in violation of Article 67(1)(e) as it was explicitly not formulated to include a right to confrontation and cross-examination strictu sensu [see Schabas, 1999, p. 859; Schabas, 2008, p. 1265; and Schabas, 2010, p. 811 (with references to the drafting history)].
Concerning the right to question witnesses, in Bemba, the Appeals Chamber examined what happens if the Prosecution witnesses become unavailable or unwilling to testify, or the Prosecution does not call particular witnesses due to any reason. In any of these situations, the Appeals Chamber noted that if these witnesses’ statements are still admitted as “evidence”, regardless of the fact that the accused has been deprived of his/her right “to examine, or have examined, the witnesses against him or her”, the defence would be required to challenge the admissibility of this “evidence” to have it excluded from the case. Nonetheless, the Appeals Chamber found it as an “impermissible burden shift to the Defence and will also put the Defence in breach of Rule 64(1) which requires that ‘an issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber’” [Prosecutor v. Bemba, ICC A. Ch., Defence appeal against the ‘Decision on the admission into evidence of material contained in the Prosecution’s list of evidence’ of 19 November 2010, ICC-01/05-01/08-1191, 7 February 2011, para. 51]. Additionally, it was considered the Trial Chamber’s adopted approach. Thus, when the evidence is used by the Prosecution, neither the defence will be aware of the purpose for admission of evidence nor the Chamber will have established whether it is required the implementation of counterbalancing measures to guarantee that:

[…] the probative value of the evidence is not outweighed by its prejudicial impact on the rights of the defence and the fairness and impartiality of the proceedings. Since the Chamber will only be making these determinations at the end of the proceedings, the Defence will be precluded from obtaining appropriate relief […] in a timely manner, which will further prejudice its right to examine witnesses concerning the Prosecution evidence in an effective manner” [ibid., para. 52].

   If the Trial Chamber indiscriminately admits all the witness statements without given consideration to whether the admission of a given statement would be inconsistent with or prejudicial to the accused person’s rights, this constitutes an improper exercise of the Trial Chamber’s decision and, thus, “resulted in the Chamber paying little or no regard to the principle of orality, to the rights of the accused, or to trial fairness generally. It had the potential effect of depriving Mr Bemba of his right ‘to examine, or have examined the witnesses against him’” [Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled ‘Decision on the admission into evidence of materials contained in the prosecution’s list of evidence’, ICC-01/05-01/08-1386, 3 May 2011, para. 79].
   In interpreting Article 6(3)(d) of the ECHR, which is almost identical to Article 67(1)(e) of the ICC Statute, the ECtHR in Kostovski v. The Netherlands stated that, as a matter of principle, all evidence must in general be produced in the accused person’s presence during a public hearing with a view to adversarial argument [Kostovski v. The Netherlands, (Application No. 11454/85), ECtHR, Judgment, 20 November 1989, para. 41]. Nevertheless, the ECtHR added that such principle does not mean that, to be used as evidence, the statements of witnesses always need to be made during a public hearing in court [ibid.]. Using those statements obtained at the pre-trial stage as evidence is not in itself inconsistent with Article 6 of the ECHR provided that the defence’s rights have been respected. In general, those rights demand that “an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings [...]” [ibid.].
   Second, the accused has the right to obtain the attendance of witnesses; however, the ICC Statute does not provide for compellability of witnesses [see further Schabas, 2008, p. 1265; and Schabas, 2010, p. 811]. Even though the accused has the right to remain silent as the Prosecutor shoulders the onus of proof, the accused is entitled to submit evidence relevant to the case (Article 69(3) of the ICC Statute), which includes the right to “obtain the attendance and examination of witnesses on his or her behalf” (Article 67(1)(e) of the ICC Statute and rule 140(2)(a) of the RPE) [Prosecutor v. Bemba, ICC T. Ch. III, Decision lifting the temporary suspension of the trial proceedings and addressing additional issues raised in defence submissions ICC-01/05- 01/08-2490-Red and ICC-01/05-01/08-2497, ICC-01/05-01/08-2500, 6 February 2013, para. 23]. However, no ICC organ may be found responsible for ensuring the presence of the witnesses called to testify by a party as the party wishing to bring evidence via witness’s oral testimony is the only “responsible for contacting the witness concerned, obtaining his or her voluntary consent to testify and proposing to the Chamber a feasible schedule for the appearance of witnesses, taking into account all necessary arrangements that may need to be implemented […] to enable the witnesses to appear to testify before the Court” [ibid.].
   Third, Article 67(1)(e) also contains the right to equality in manners concerning witnesses between the prosecution and the defence. Generally, limitations concerning attendance and, more importantly, examination of witnesses will not be in violation of Article 67(1)(e) if they are applied to both parties equally [see, however, the criticism of that “granting both the prosecutor and the defence equivalently watered-down powers does not equate to a fair trial” [Knoops, 2005, p. 57]].
   Fourth, the accused has the right to raise defences (with the exception, presumable, of those defences explicitly ruled out in the Statute) and to present admissible evidence besides witness statements – this rather straightforward provision is of course necessary to achieve equality of arms between the parties and to allow the accused to put up an adequate defence.
   Fifth, Article 67(1)(e) rights should also be examined in the context of legal recharacterisation of facts. If at any time during the trial (regulation 55(2)) it seems to the Chamber that the legal characterisation of the facts may be subject to change, it has to give notice to the participants in the proceedings of this possibility and provide the participants with the opportunity to make submissions after having heard the evidence. In turn, regulation 55 sets out the safeguards to be respected in order to protect the accused person’s rights. The safeguards to protect the accused person’s rights depend on the specific circumstances of the case (Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012, paras. 11 and 13). Thus, the accused need to have adequate time and facilities for the effective preparation of his/her defence as well as “be given the opportunity to request the presentation of any evidence or witness that he or she considers necessary, in accordance with Article 67(1)(e)” [ibid., para. 11].
   In Bemba, when deciding on the remedial measures to be afforded to the accused, under regulation 55(3), Trial Chamber III considered the prosecution’s statement whereby regulation 55 had no impact on the prosecution case and, thus, it would not submit further evidence. However, the Chamber granted the accused person’s request to collect and submit additional evidence (Article 67(1)(e) of the ICC Statute). Nevertheless, as the accused person is not obliged to present evidence, he/she may voluntarily decide not to do it [Prosecutor v. Bemba, ICC T. Ch. III, Decision lifting the temporary suspension of the trial proceedings and addressing additional issues raised in defence submissions ICC-01/05- 01/08-2490-Red and ICC-01/05-01/08-2497, ICC-01/05-01/08-2500, 6 February 2013, paras. 20 and 21]. Leading new evidence following the implementation of regulation 55 may adopt several forms: “the recalling of witnesses who testified at trial, whether for the Prosecution or the Defence; the calling and the testimony of new witnesses, be they persons whom the Defence met in the course of its earlier investigations or newly identified persons; and the tendering of new documentary evidence” [Prosecutor v. Katanga, ICC T. Ch. II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3436-Teng, 7 March 2014, para. 1539].
   Finally, it should be noted that submissions based on Article 67(1)(b) and (e) may be analysed under the principle whereby a stay of the proceedings is the ultimate remedy to be resorted only when a fair trial is impossible and there is no sufficient indication that any unfairness may be sorted out later or relieved against by the Chamber [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings, ICC-02/05-03/09-410, 26 October 2012, para. 97]. The above-mentioned examination demands “a preliminary assessment on whether the right to be provided adequate time and facilities for the preparation of their defence and to obtain the attendance of witnesses require, as a necessary component, on-site investigations” [ibid.].

Cross-reference:
Articles 67(1)(b), 68, 69, Rules 64(1) and 140(2)(a), Regulation 55

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(f)

[553] (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;
The right to interpretation and translation aims to ensure that the accused is able to adequately follow the court proceedings and thus to be “present” in a meaningful sense. Accordingly, “the right to an interpreter seems axiomatic” [Schabas, 1999, p. 860; Schabas, 2008, p. 1267; and Schabas, 2010, p. 812]. The provision goes beyond the text of human rights instruments in several ways, most importantly by referring not only to the interpretation of court proceedings, but also to the translation of documents presented to the court. The right to translation of documents, however, is limited to those documents the translation of which is “necessary to meet the requirements of fairness”. Thus, in Lubanga, Pre-Trial Chamber I denied a defence request that all procedural documents be translated into French and that deadlines only begin to run after the receipt of the French translations; it instead ordered the Registry to provide to the Defence the services of a French translator to assist the defence with documents available only in English [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Requests of the Defence of 3 and 4 July 2006, ICC-01/04-01/06-268, 4 August 2006 (with references to the jurisprudence of the ECtHR)].
   The right to an interpreter needs to be jointly read with Article 67(1)(a) of the ICC Statute, under which the accused must be in a position to know both the charges and supporting evidence [Prosecutor v. Bemba, ICC PT. Ch. III, Decision on the Defence's Request Related to Language Issues in the Proceedings, ICC-01/05-01/08-307, 4 December 2008, para. 14].
   Article 67(1)(f) does not necessarily require that interpretation or translation be into the mother tongue of the accused, translation/interpretation into a language that he or she “fully understands and speaks” is sufficient. Where it was not clear which languages the accused spoke at this level, the Court requested the Registry to provide information on this topic [see Prosecutor v. Katanga, ICC PT. Ch. I, Order for a Report of Additional Information on the Detention and Surrender of the Detainee Germain Katanga, ICC-01/04-01/07-45, 26 October 2007, p. 3]. Articles 67(1)(a) and (f) of the Statute do not grant the accused the right to choose the language in which he must be informed of the charges against him and in which translation of documents and interpretation must be provided. The standard is “that of a language that the arrested person or the accused ‘fully understands and speaks’ so as to guarantee the requirements of fairness”. Thus, the defence requested in Katanga that: i) documents in French transmitted to the accused as part of the proceedings should be accompanied by a translation into Lingala; and ii) that the accused should be granted the right to be assisted by a Lingala interpreter and translator during the proceedings was rejected [see Prosecutor v. Katanga, ICC PT. Ch. I, Decision on Defence Request concerning languages, ICC-01/04-01/07-127, 21 December 2007, para. 30]. The Appeals Chamber found that the Single Judge erred in the interpretation of the standard to be applied under Article 67(1)(a) and (f) of the Statute because she “did not comprehensively consider the importance of the fact that the word ‘fully’ is included in the text, and the Article’s full legislative history”. [Prosecutor v. Katanga and Ngudjolo Chui, ICC. A. Ch., Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", ICC-01/04-01/07-522, 27 May 2008, para. 37]. In the opinion of the Appeals Chamber, the cumulative requirement “fully understands and speaks” in both paragraphs makes the applicable standard “high - higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR” [ibid., paras. 62 and 66]. The single judge in Pre-Trial Chamber I still held “the view that the right of Germain Katanga and Mathieu Ngudjolo Chui to have the confirmation hearing held within a reasonable period of time must prevail” and decided “that, in application of the Appeals Chamber Judgement concerning Languages, Germain Katanga shall continue to be assisted by an interpreter during the hearings held in the remaining proceedings before Pre-Trial Chamber I” [Prosecutor v. Katanga and Ngudjolo Chui, PT. Ch. I, Decision Implementing the Appeals Chamber Judgement concerning Languages, ICC-01/04-01/07-539, 2 June 2008, para. 11].
   Article 67(1)(f) does not provide that the defendant has an absolute right to have all documents translated into a language which he fully understands and speaks [Prosecutor v. Bemba, ICC T. Ch. III, Decision on the Defence's Request Related to Language Issues in the Proceedings, ICC-01/04-01/08-307, 4 December 2008, para. 11]. The defendant is entitled to receive translation of such documents that inform him in detail of the nature, cause and content of the charges brought against him, namely: i) the Prosecutor’s application for a warrant of arrest and the Chamber’s decision thereon; ii) the Document Containing the Charges and the List of Evidence as well as any amendment thereto; and iii) the statements of prosecution witnesses [ibid., para. 16].
   In Mbarushimana, concerning a telephone log disclosed by the Prosecutor as incriminating evidence, the Chamber found that the Prosecutor had no obligation to provide the translation of such material to the defence, “unless he intends to rely on any of those intercepted communications for the purposes of the confirmation hearing in the present case […]” [Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on issues relating to disclosure, ICC-01/04-01/10-87, 30 March 2011, para. 16]. Therefore, the Chamber rejected the defence’s request for the translation of all intercepted communications since the material not sought to be relied on by the parties does not need to be filed in the case record and, thus, the language requirement set out in regulation 39 of the Regulations of the Court was found inapplicable to such material [ibid., paras. 15-16].
   In Bemba et al., call logs (consisting to a large extent of digits) and chain-of-custody documents included in the Prosecutor’s list of evidence were found not to be critical to the Defence’s ability to either challenge or otherwise rely on them. Thus, the Chamber concluded that there was “no violation of Rule 121(3) of the Rules […] and does not consider that the translation of the items concerned was necessary to meet the requirements of fairness”. [Prosecutor v. Bemba et al., ICC PT. Ch. II, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/05-01/13-749, 11 November 2014, para. 21].
As shown by Regulation 97, the right to translation also applies to communication between the accused and his or her counsel.

Cross-reference:
Article 67(1)(a), Rule 121(3), Regulations 39 and 97

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(g)

[554] (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;
The right to silence, as contained in Article 67(1)(g), goes beyond the rights contained in other tribunals’ Statutes and in relevant human rights provisions. First, contrary to, e.g., Article 14 of the ICCPR, Article 67 does not refer to “testimony against himself”, thus showing that the accused may refuse any testimony even if it might be argued that it could or would be “in favour” of the accused [Schabas, 1999, p. 861; Schabas, 2008, p. 1267; and Schabas, 2010, p. 813]. The removal of the words “against himself” might also be read to imply that an accused may also refuse to testify if called as a witness in another case. This seems doubtful, however, as such cases would more appropriately be dealt with under the rules concerning the danger of self-incrimination by witnesses [see Rule 74]. Certainly, the right to silence can be waived [see further Schabas, 2010, p. 814].
   Second, the Rome Statute goes beyond other instruments by explicitly laying down that silence of the accused may not be considered in the determination of guilt or innocence. This precludes procedures, such as those applicable in some national jurisdictions, allowing negative conclusions to be drawn from the failure of the accused to explain, e.g., his or her presence at a location where a crime had taken place.
   The Trial Chamber said that “if the Defence identifies lines of defence or issues at a significantly and unnecessarily advanced stage this may have consequences for decisions that relate to disclosure to the accused” [cited in Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, ICC-01/04-01/06-1433, 11 July 2008, para. 13]. The Appeals Chamber found that this “should not be read so as to place pressure on the accused to testify or to raise defences at an early stage as a condition of obtaining prosecution disclosure” [ibid., paras. 1, 19, 55].
   In examining Article 67(1)(g), Judge Pikis detailed that the right to silence:

[…] is in no way qualified, save in relation to the specific defences prescribed in rule 79 of the Rules. The Statute does not merely guarantee the right to silence as the inalienable right of the accused, but further provides that its exercise should draw no adverse consequences for him/her. […] In addition, the Statute assures to the accused the right “not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal”. The right to silence is interwoven with the presumption of innocence of the accused [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008-Party dissenting opinion of Judge Georgios M. Pikis, ICC-01/04-01/06-1433, 11 July 2008, para. 14].

Although under Article 67(1)(g) the accused has the right to remain silent and cannot be compelled to testify, “once an accused voluntarily testifies under oath, he waives his right to remain silent and must answer all relevant questions, even if the answers are incriminating” [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the request of the Defence for Mathieu Ngudjolo to obtain assurances with respect to self-incrimination for the accused, ICC-01/04-01/07-3153, 13 September 2011, para. 7]. Accordingly, the accused person’s testimony may be used against him/her and, should he/she decline to answer a permissible question, the Chamber may as appropriate deduce any adverse inference [ibid., para. 8]. Additionally, the assurances under rule 74 (self-incrimination by a witness) of the RPE aim to compel witnesses to answer questions under the objection of potential self-incrimination [ibid., para. 9]. Thus, it is inappropriate to apply this rule to an accused who knowingly committed himself to answer all questions within the scope of cross-examination and, therefore, cross-examination must be limited to matters: i) raised during examination in chief; ii) affecting the credibility of the witness; and iii) relevant to the case for the cross-examining party [ibid., para. 10].
The right not to be compelled to testify against oneself is “the corollary of the right to remain silent, both of which are intimately tied to the presumption of innocence” [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012, para. 48]. Although the right to remain silent and the right not to be compelled to testify against oneself or privilege against self-incrimination are not explicitly recognized in Article 6 of the ECHR, these rights are international standards pivotal to the fair trial. They endeavour to guarantee that confessions obtained via subterfuge, coercion or duress cannot be used at trial in disregard of the accused person’s will to remain silent. In turn, the right to remain silent is related to, inter alia, have the right to decide to testify respected [ibid., paras. 48 and 49].

Cross-references:
Article 66, Rule 74

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(h)

[555] (h) To make an unsworn oral or written statement in his or her defence; and
Article 67(1)(h) allows the accused to make an unsworn statement, i.e., a statement made without solemn undertaking under Article 69 (and thus not subject to the penalty for false testimony under Article 70) and not subject to cross-examination. The Rome Statute thus seems to follow the civil law model, which generally does not foresee the accused taking the oath as a witness. The unsworn statement constitutes an exception to the general rule according to which testimony must be accompanied by an oath of truthfulness [see further Schabas, 1999, p. 862; Schabas, 2008, p. 1269; and Schabas, 2010, p. 815].
   From the wording of Article 67(1)(h), it seems that the accused only has the right to make one statement, presumably at a specific moment in the trial, such as at the very beginning or after the presentation of all the evidence. The Statute thus does not mandate that the Chamber allows the accused to make statements throughout the trial, as is the case in certain civil law jurisdictions [see Sect. 258(1) of the German Code of Criminal Procedure]. Chambers may, however, conceivably grant such rights based on their own power to control the proceedings, as at least one ICTY Trial Chambers has done [Prosecutor v. Milomir Stakic, Case No. IT-97-24, ICTY T. Ch., Order for Filing of Motions and Related Matters, 7 March 2002, para. 8].
   As the statement is unsworn, its value as evidence is doubtful [see Schabas, 1999, p. 862; Schabas, 2008, p. 1269; and Schabas, 2010, p. 815]. Defendants may therefore also wish to testify, i.e., to make a sworn statement subject to cross-examination. It is unclear whether the Rome Statute allows this or whether Article 67(1)(h) in conjunction with Article 67(1)(g) must be interpreted as limiting the accused to only an unsworn statement [see pro Orie, 2002, p. 1482; contra Zappalà, 2003, p. 79]. Be that as it may, concerning the use of unsworn oral statement by the accused, as an example, Mathieu Ngudjolo Chui made two oral statements in accordance with Article 67(1)(h) of the ICC Statute, i.e., without oath, although he and his co-accused in general chose to testify pursuant to their right under Article 67(1)(g) of the ICC Statute. Whereas the Chamber to some extent took into account those unsworn statements, only sworn statements were considered part of the case record within the meaning of article 74(2) of the ICC Statute [Prosecutor v. Ngudjolo Chui, ICC T. Ch. II, Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, 18 December 2012, para. 25].
   The ICC Statute imposes no restriction on the right to make an unsworn written or oral statement “as to when this right may be exercised or the form the statement should take” [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on opening and closing statements, ICC-01/04-01/06-1346 22 May 2008, para. 14]. The accused has the right to make an unsworn oral or written statement in his/her defence without this affecting his/her right to remain silent and, therefore, “cannot be compelled to testify under oath even if they make an unsworn statement.” [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Corrigendum to the Directions for the conduct of the proceedings and testimony in accordance to rule 140, ICC-01/04-01/07-1665-Corr, 1 December 2009, para. 51]. Nevertheless, if an accused consents to give evidence, he/she “becomes subject to the same rules […] that are applicable to other witnesses” [ibid.].

Cross-references:
Articles 67(1)(g), 69, 70 and 74(2).

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(1)(i)

[556] (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
The right against a reversal of the burden of proof and against an onus of rebuttal is a corollary of Article 66 laying down the presumption of innocence and placing the burden of proof on the prosecution. Article 67(1)(i) reverse onus provision has been considered as quite original since, considering the absence of typical reverse onus provisions in the ICC Statute, its real purpose would apparently be its application to judge-made reverse onus provisions [see Schabas, 2010, p. 816]. By explicitly ruling out any reversal of the burden of proof, the Rome Statute goes beyond most human rights norms – the ECHR, for example, also contains the presumption of innocence, but does allow reversals within certain limits [see Schabas, Article 66, 1999, MN 22; and Schabas, 2010, pp. 784-785 with further references]. Indeed, a joint, strict interpretation of Articles 66(2) and 67(1)(i) might in all circumstances lead to the burden of proof on the Prosecution which may turn to be inconsistent with criminal law under certain assumptions such as assuming the sanity of the accused person [see Sluiter, 2009, p. 462].
   Article 67(1)(i) may at first glance seem of rather limited practical value as no provisions in the Rome Statute, especially in the Articles defining substantive crimes, order or allow such a reversal. The provision may, however, still be of use in guarding against reversals contained in the Elements of Crimes (of which it does not seem to be any at the moment) or in the context of other norms concerning criminal responsibility, especially those constituting the “General Part” of the substantive law [on examples concerning modes of liability and grounds for excluding criminal responsibility, see Schabas, Article 66, 1999, MN 20–21; and Schabas, 2010, pp. 785-786].
   Judge Pikis detailed that “The accused is presumed to be innocent. He does not have to prove his innocence. What he must do in order to free himself from the accusation is to cast doubt on its validity: it is his right to be acquitted unless the accusations against him are proven beyond reasonable doubt” [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008-Party dissenting opinion of Judge Georgios M. Pikis, ICC-01/04-01/06-1433, 11 July 2008, para. 14]. Pursuant to Article 66(2) and (3) of the ICC Statute, the onus of proving the accused person’s guilt is on the Prosecutor and, to convict the accused, the Chamber must be convinced beyond reasonable doubt. Additionally, under Article 67(1)(g) and (i) of the ICC Statute, the accused person is entitled to remain silent and not to have imposed on him/her “any reversal of the burden of proof or any onus of rebuttal” [Prosecutor v. Bemba, T. Ch. III, Decision lifting the temporary suspension of the trial proceedings and addressing additional issues raised in defence submissions ICC-01/05- 01/08-2490-Red and ICC-01/05-01/08-2497, ICC-01/05-01/08-2500, 6 February 2013, para. 19].
   Concerning how the rights of victims may potentially conflict with the rights of the accused, the fact that victims are authorized to participate in the ICC proceedings cannot alter, inter alia, the rules of burden of proof resting on the Prosecution (Article 66(2)) and the prohibition of reversal of the burden of proof (Article 67(1)(i)) [see Zappalà, 2010, p. 147].

Cross-references:
Articles 66, 67(1)(g) and 67(1)(i)

Authors: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 67(2)

[557] 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence 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. In case of doubt as to the application of this paragraph, the Court shall decide.
Article 67(2), which complements Article 54(1)(a) requiring the prosecution to investigate incriminating and exonerating circumstances equally, lays down the duty of the prosecution to disclose to the defence potentially exculpatory evidence. Indeed, the ICC Chambers have extended the disclosure to include any exculpatory evidence and not only evidence [e.g., Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC-01/04-01/06-102, 15 May 2006, para. 8]. Article 67(2) and the related RPE correspond to the general principle of international criminal procedure consisting in that the accused person “shall be granted reasonable access to the prosecution material in order to prepare his defence” [Tochilovsky, 2013, p. 1097].
   Application of Article 67(2) may be wider than that of Article 67(1)- the Court has stated that it only applies to proceedings “pertaining to the guilt or innocence of the suspect or accused person or to the credibility of Prosecution witnesses” [Situation in Darfur, ICC PT. Ch. I, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, ICC-02/05-110, 3 December 2007, para. 20; and Situation in the Democratic Republic of Congo, ICC PT. Ch. I, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, ICC-01/04-417, 7 December 2007, para. 11]. While this means that Article 67(2) does not apply to proceedings concerning applications for participation as victims in the proceedings, the decisions could be read to imply that the provision may well apply to other proceedings even in the investigation phase [Situation in Darfur, ICC PT. Ch. I, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, ICC-02/05-110, 3 December 2007, para. 6]. Such evidence must be disclosed “in a timely manner”, which also implies that the duty under Article 67(2) applies whenever the prosecution receives such material, independent of the exact stage of proceedings.
   In Lubanga, Trial Chamber I held that “Exculpatory material [...] includes material, first, that shows or tends to show the innocence of the accused; second, which mitigates the guilt of the accused; and, third, which may affect the credibility of prosecution evidence” [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, 13 June 2008, para. 59]. Thus, the disclosure duty under the first sentence of Article 67(2) is in principle applicable to all materials under the Prosecutor’s possession or control and about which he/she considers that: demonstrate or tend to demonstrate the accused person’s innocence, mitigate the accused person’s guilt or may affect the credibility of the evidence of the Prosecution [see Schabas, 2010, p. 817]. Thus, not later than a date set up by the Trial Chamber and prior to the commencement of the trial, the Prosecution must disclose: i) all incriminatory material as witness statements or any other material relied on at trial; ii) Article 67(2) and Rule 77 material in its possession for inspection to the defence teams on a rolling basis; and iii) expert witness report to be called during the Prosecution case [Prosecutor v. Gbagbo and Blé Goudé, ICC T. Ch. I, Order setting the commencement date for trial, ICC-02/11-01/15-58, 7 May 2015, para. 22].
   Article 67(2) refers only to evidence “in the Prosecutor’s possession or control”, thus excluding, e.g., material in the possession of information providers such as UN troops [see Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on Defence Requests for Disclosure of Materials, ICC-01/04-01/06-718, 17 November 2006, p. 5 on material held by the UN Mission in the DRC (MONUC); in this instance the court sent a request to MONUC via the Registrar in order to gain access to such material in question, see ibid., p. 7]. In Lubanga, the Trial Chamber stated that “the disclosure regime established by the Rome Statute framework is imposed on the prosecution alone: in other words, no positive obligation is imposed on the other organs of the Court, the defence or the participants to disclose exculpatory material to the defence under Article 67(2) of the Statute, Rule 77 or Rule 76 of the Rules” [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the defence application for disclosure of victims applications, ICC-01/04-01/06-1637, 21 January 2009, para. 10].
   For cases in which disclosure under Article 67(2) may endanger further investigations or conflict with other obligations of the prosecution concerning evidence, Rules 81 and 82 contain certain restrictions on disclosure [see also Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Information in respect of the Second Decision on Rule 81 Motions, ICC-01/04-01/06-490, 28 September 2006; Prosecutor v. Lubanga, ICC PT. Ch. I, Decision Further to the Information Provided by the Prosecutor on 25 October 2006, ICC-01/04-01/06-629-tEN, 30 October 2006, on conflicts with Article 54(3)(e); and Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Defence Request for Order to Disclose Exculpatory Materials, ICC-01/04-01/06-649, 2 November 2006, p. 3, on witness protection issues].
   While disclosure of evidence is generally directly between the parties, the court has the power to decide in cases of doubt. This is further elaborated upon in Rule 83 of the RPE. The court may also, under Rule 84, make orders for disclosure of material not yet disclosed prior to trial.
   The disclosure obligation under Article 67(2) is ongoing [see Prosecutor v. Lubanga, ICC T. Ch. I, Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, ICC-01/04-01/06-1019, 9 November 2007, para. 28; and Prosecutor v. Katanga, ICC PT. Ch. I, Decision Modifying the Calendar for the Disclosure of the Supporting Materials of the Prosecution Application for a Warrant of Arrest against Germain Katanga, ICC-01/04-01/07-60, 5 November 2007, p. 8].
   The Prosecutor has an ongoing obligation to disclose exculpatory material [Prosecutor v. Katanga and Ngudjolo Chui, ICC PT. Ch. I, Decision Establishing a Calendar in the Case against Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-259, 10 March 2008, p. 12].
   As Schabas points out, the disclosure duty is seemingly attenuated with regard to confirmation charges [Schabas, 2010, p. 818]. Thus, disclosing the “bulk of the materials identified as potentially exculpatory or otherwise material”, also known as “the bulk rule” would suffice, i.e., the Prosecutor should disclose to the defence the bulk of potentially exonerating evidence and evidence material to the preparation of the defence, before the confirmation of charges hearing [Prosecutor v. Katanga and Ngudjolo Chui, ICC PT. Ch. I., Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence's Preparation for the Confirmation Hearing, ICC-01/04-01/07-621, 20 June 2008, para. 8; and Prosecutor v. Lubanga, ICC PT. Ch. I., Decision on the confirmation of charges, ICC-01/04-01/06-803, 29 January 2007, para. 154]. In cases when relevant material is subject to redactions, the confirmation hearing is not necessarily unfair if access to certain potentially exculpatory material is denied to the defence [Prosecutor v. Katanga, ICC A. Ch., Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorization to Redact Witnesses Statements”, ICC-01/04-01/07-475, 13 May 2008, paras. 71-73]. Nevertheless, judges departed from the practice developed in Lubanga and Katanga and Ngudjolo Chui, i.e., the so-called “bulk-rule”, since they in Mbarushimana and the Kenyan cases opted for the total disclosure of all said material before the confirmation of charges hearing. The Prosecutor has also been asked by the judges to prepare summaries in order to help the defence understand and identify the relevance of each evidentiary piece [Prosecutor v. Ruto et al., ICC PT. Ch. II, Decision Setting the Regime for Evidence Disclosure and Other Related Matters, ICC-01/09-01/11-44, 6 April 2011, para. 6; Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on issues relating to disclosure, ICC-01/04-01/10-87, 30 March 2011].
   Substitutes for disclosure, e.g., summaries of materials or disclosure of analogous materials, are insufficient [Prosecutor v. Katanga and Nudjolo Chui, ICC PT. Ch. I., Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence's Preparation for the Confirmation Hearing, ICC-01/04-01/07-621, 20 June 2008, para. 6]. The Trial Chamber may authorize redactions of documents and summaries of exculpatory evidence are not permitted [Prosecutor v. Lubanga, ICC T. Ch. I, Reasons for Oral Decision Lifting the Stay of Proceedings, ICC-01/04-01/06-1644, 23 January 2009, paras. 41-47].
   The Prosecutor’s obligation of disclosure under Article 67(2) and the Prosecutor’s power to confidentially collect evidence under Article 54(3)(c) are in tension as the latter enables to collect lead-evidence used to produce other evidence rather than for production before the ICC [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486, 21 October 2008, para. 43]. If information provided under Article 54(3)(c) is given under confidentiality agreement, this happens to contain potentially exculpatory material and the informer denies permission to disclose, the Prosecutor may face severe problems. Precisely, the Trial Chamber in Lubanga ordered a stay of proceedings and only lifted it when the Prosecutor had been authorized by the informer to disclose potentially exculpatory evidence to the defence [see Schabas, 2010, p. 819].
   In Bemba, the Appeals Chamber noted that the ICC legal framework contains no explicit disclosure regime concerning interim release applications, considered the arrested person’s rights and guarantees and stated that he/she should ideally have all such information at the time of his/her initial appearance at the ICC [Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled ‘Decision on application for interim release’, ICC-01/05-01/08-323, 16 December 2008, paras. 26 and 32].
   As to individuals identified by the defence and who may provide critical exculpatory evidence, the Trial Chamber may review Article 67(2) materials available to the defence to ascertain whether evidentiary materials disclosed up to that moment engage defence lines that had been made known to or are apparent to the Chamber [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings, ICC-02/05-03/09-410, 26 October 2012, para. 98]. Then, the Chamber reviews the disclosure of the identities of potentially exculpatory witnesses and their statements as well as “issues of interviews between the defence and prosecution witnesses, issues of translation and cooperation and issues of disclosure of documents, including those exculpatory documents received by the prosecution under confidentiality agreements pursuant to Article 54(3)(e)” [ibid.]. Before the status conference, the Trial Chamber in Banda and Jerbo had requested the Prosecutor to file an updated and comprehensive report on exculpatory evidence disclosed to the defence. This had the purpose to enable the Chamber to determine whether, in general, “the disclosed Article 67(2) material may support lines of defence that may reasonably arise from unavailable evidence” and the related analysis also assists “in determining whether a fair trial is impossible in the case” [ibid., para. 109]. Considering particular circumstances and as an alternative to the severe remedy of temporarily staying proceedings, the defence may voluntarily consider revealing one line of argument to the Prosecutor so as “to facilitate the search for, and disclosure of, relevant evidence and the investigation thereof” [ibid., para. 113].
    As to requests for filing additional documents before trial, the decision on the confirmation of charges defines the trial parameters [Prosecutor v. Gbagbo and Blé Goudé, ICC T. Ch. I, Order setting the commencement date for trial, ICC-02/11-01/15-58, 7 May 2015, para. 17]. Thus, an updated document containing the charges is not needed for the accused person to prepare an effective defence under Article 67 [ibid.]. Nevertheless, “this does not preclude the filing, by the Prosecution, of other auxiliary documents with a view of providing the Defence with further details in relation to the charges confirmed” [ibid.].
   The second sentence of Article 67(2) makes it clear that the Trial Chamber conducts the final assessment on whether material in Prosecutor’s control or possession has to be disclosed [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486, 21 October 2008, para. 46]. Moreover, in doing so, the Trial Chamber may provide protective measures and limitations on disclosure requested by the Prosecutor as far as those are proportionate and necessary to protect the witnesses and without causing unfairness to the defence [Prosecutor v. Lubanga, Transcript, ICC-01/04-01/06-T-104, 16 January 2009, p. 13]. Under Rule 83 of the RPE, it is possible for the ICC Prosecutor to request a hearing before the competent Chamber in order to:

[…] determine whether the Defence should have access to some specific materials. The presence of the Defence at this type of hearing would, in principle, defeat its very purpose because: (i) the Prosecution would be prevented from going into the details of the relevant materials, which have not yet been disclosed to the Defence; and (ii) the Defence would not be in a position to make meaningful submissions as it does not have access to such materials [Katanga and Ngudjolo Chui, ICC PT. Ch. I, Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence's Preparation for the Confirmation Hearing, ICC-01/04-01/07-621, 20 June 2008, para. 2].

   Pre-Trial Chamber II, in Ruto et al. , considered that it was fair to oblige the Prosecutor to timely make total disclosure at the pre-confirmation stage and concluded that Prosecution’s objections to explanatory summaries were result of a misunderstanding of the decision [Prosecutor v. Ruto et al. , ICC PT. Ch. II, Decision on the ‘Prosecution’s Application for leave to Appeal the “Decision Setting the Regime for Evidence Disclosure and Other Related Matters”, ICC-01/09-01/11-44, 2 May 2011, paras. 18 and 27]. In Mbarushimana, Pre-Trial Chamber I found that the disclosure orders were not so burdensome to affect fairness in detriment to the Prosecution [Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Prosecution’s application for leave to Appeal the ‘Decision on issues relating to disclosure’, ICC-01/04-01/10-116, 21 April 2011, para. 18].
   The Trial Chamber has to consider at face value whether the disclosed Article 67(2) evidence involves lines of defence that the defence intends to pursue during trial. After the Trial Chamber examines the whole evidentiary material at the end of the trial, it may arrive to conclusions and strike a balance between fairness and the fact that additional material based upon which the same argumentative lines could not have been obtained by the defence as a consequence of the absence of on-site investigations. Taking into account the case circumstances, the Trial Chamber has to determine whether a fair trial is not prospectively impossible. If a fair trial is seemingly possible, the Trial Chamber may relieve against any prejudice stemming from unfairness in the trial [Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, Decision on the defence request for a temporary stay of proceedings, ICC-02/05-03/09-410, 26 October 2012, para. 114].
   A stay of the proceedings constitutes an exceptional remedy and resorted only if the situation prompting the request for the stay neither can be resolved at a later stage nor can be cured during the trial. If the Chamber considers that the situation of the defence’s access to this information has significantly improved and, thus, disclosure of critical information to the defence prior to the trial is enabled, the Chamber will most likely reject requests for stay of proceedings, even temporarily [ibid., para. 121]. As for defence access to Prosecution witnesses, although it corresponds to the witnesses’ prerogatives, the Prosecution is encouraged to do its best to secure defence access to them [ibid., para. 128].
   For more on disclosure generally, including questions on procedure and timing, see the commentary on Rules 76 et seq.

Cross-references:
Article 54(1)(a), 54(3)(e), 67(1), Rules 76 et seq., 81–84

Doctrine:

Till Gut et al., "Defence Issues", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1203-1297.
Robert Heinsch, "How to Achieve Fair and Expeditious Trial Proceedings before the ICC: Is it Time for a more Judge-dominated Approach?", Carsten Stan/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Brill/Martinus Nijhoff Publishers, Leiden, 2009, pp. 479-499.
Steven Kay/Bert Swart, "The Role of the Defence", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1421-1437.
Geert-Jan Alexander Knoops, Theory and Practice of International and Internationalized Criminal Proceedings, Kluwer Law International, The Hague, 2005.
Michele Marchesiello, "Proceedings Before the Pre-Trial Chamber", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1231-1246.
Yvonne McDermott, "General Duty to Ensure the Right to a Fair and Expeditious Trial", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 770-818.
William A. Schabas, "Article 63 – Trial in the Presence of the Accused", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Nomos, Baden Baden, 1999, pp. 803-808.
William A. Schabas, "Article 66 – Presumption of Innocence", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Nomos, Baden Baden, 1999, pp. 833-843.
William A. Schabas, "Article 67 – Rights of the Accused", Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Nomos, Baden Baden, 1999, pp. 845-868.
William A. Schabas, "Article 63 – Trial in The presence of the Accused", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1191-1198.
William A. Schabas, "Article 66 – Presumption of Innocence", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, 1233-1245.
William A. Schabas, "Article 67 – Rights of the Accused", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1247-1274.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
Göran Sluiter, "Human Rights Protection in the ICC Pre-Trial Phase", Carsten Stan/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Brill/Martinus Nijhoff Publishers, Leiden, 2009, pp. 459-475.
Frank Terrier, "Procedure Before the Trial Chamber", in Antonio Casesse et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1277-1318.
Vladimir Tochilovsky, "Defence Access to the Prosecution Material", Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1083-1098.
Ekaterina Trendafilova, "Fairness and Expeditiousness in the International Criminal Court’s Pre-trial Proceedings", Carsten Stan/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Brill/Martinus Nijhoff Publishers, Leiden, 2009, pp. 441-457.
Alphons Orie, "Accusatorial v. Inquisitorial Approach in International Criminal Proceedings", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002. pp. 1439-1495.
Salvatore Zappala, Human Rights in International Criminal Proceedings, Oxford University Press, Oxford, 2003.
Salvatore Zappalà, "The Rights of Victims v. the Rights of the Accused", Journal of International Criminal Justice, vol. 8, no.1, 2010, pp. 137-164.

Authors: Juan Pablo Pérez-Leon-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 68

[558] Protection of the victims and witnesses and their participation in the proceedings
General remarks
Protection of victims and witnesses
Article 68 establishes an obligation for the Court to protect victims and witnesses, in a similar manner to the obligation established for other international criminal tribunals. In fact, the protection of the victims is a recurring theme of the Statute [Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008, para. 54], to the point that a unit is established within the Registry to advise the Court on the protection of victims and witnesses. Moreover, the Statute and the Rules of Procedure and Evidence grant special protective measures to victims, taking into account their age and the harm they have suffered. As a result, children and victims of sexual violence are specially protected by the Court.

Participation of victims and witnesses
Victims with relevant information to pass it on to the Prosecutor may do so pursuant to Articles 15(2) and 42(1) without the need to be formally accorded a right to participate in the proceedings under Article 68 of the Statute [Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008, para. 53]. Moreover, victims are specifically granted the right to make representations under Articles 15(3) and 19(3) of the Statute in specific procedural stages. However, the object and purpose of Article 68(3) is to provide victims with a meaningful role in criminal proceedings before the Court so that they can have a substantial impact in the proceedings [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, para. 157]. In this regard, the role of victims in criminal proceedings before the Court, provided for in Article 68(3) of the Statute and the corresponding Rules of Procedure and Evidence, constitutes one of the main features of the procedural framework of Court, as well as a novelty in international criminal law. In this regard, the Court has consistently clarified that the participation of victims pursuant to article 68(3) of the Statute i) is confined to proceedings before the Court, ii) aims to afford victims an opportunity to voice their views and concerns on matters affecting their personal interests, and iii) does not equate victims to parties to the proceedings before a Chamber, restricting their participation to issues arising therein touching upon their personal interests, and then at stages and in a manner not inconsistent with the rights of the accused and a fair and impartial trial [Prosecutor v. Lubanga, ICC A. Ch., 13 February 2007; Prosecutor v. Lubanga, ICC A. Ch., Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the "Directions and Decision of the Appeals Chamber" of 2 February 2007, 13 June 2007; Lubanga, ICC A. Ch., Decision, in limine, on Victim Participation in the appeals of the Prosecutor and the Defence against Trial Chamber I's Decision entitled "Decision on Victims' Participation", 16 May 2008; Situation in Darfur, ICC A. Ch., 18 June 2008; Situation in the Democratic Republic of the Congo, ICC A. Ch., Decision on Victim Participation in the appeal of the Office of Public | Counsel for the Defence against Pre-Trial Chamber I's Decision of 7 December 2007 and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I's Decision of 24 December 2007, 30 June 2008; Prosecutor v. Lubanga, JICC A. Ch., udgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, 11 July 2008; Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008].

Preparatory works
The paragraphs of Article 68 dealing with the protection of victims and witnesses were proposed early in the negotiation of the Rome Statute, on the basis of similar provisions from the Statutes of the ICTY and the ICTR, and their discussion did not pose particular challenges [Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN doc. A/51/22, 13 September 1996, Vol. II, p. 204; Decisions Taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997, UN doc. A/AC.249/1997/L.8/Rev.1, 14 August 1997, pp. 36-37]. By contrast, the introduction of participatory provisions in Article 68(3) does not have any precedent in other international criminal tribunal and was, as such, quite controversial during the negotiations. France made a proposal for victims to have a right to reparation [Draft Statute of the International Criminal Court, Working paper submitted by France, UN doc. A/AC.249/L.3, 6 August 1996, Articles 50(3), 126 and 130(2)] and Egypt went even further, suggesting in this sense that they become “parties civiles” with the capacity to submit additional evidence needed to establish the basis of criminal responsibility [Proposal for Article 43 Submitted by Egypt, UN doc. A/AC.249/WP.11, 19 August 1996, Article 43(2)(b)]. However, some States were against the broad scope of these proposals. As a compromise, New Zealand circulated language taken from paragraph 6(b) of the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [Proposal by New Zealand on Article 43, Non-Paper/WG.4/No.19, 13 August 1997, Article 43(3)]. A compromise solution was eventually reached on the basis of an amended text circulated during the Rome Conference by Canada [Article 68, Protection of the Victims and Witnesses and Their Participation in the Proceedings: Proposal Submitted by Canada, UN doc. A/CONF.183/C.1/WGPM/L.58/Rev.1, 6 July 1998, Article 68(3)].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(1) - appropriate measures

[559] C. Analysis
1. The Court shall take appropriate measures
Initiative on measures
Article 68(1) of the Rome Statute mandates the Chambers and the other organs of the Court to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of the victims without prejudicing or being inconsistent with the rights of the accused and a fair and impartial trial [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 3; Darfur, ICC PT. Ch. I, 8 June 2007, p. 3; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 19 June 2007, pp. 5-6]. This is a provision of a general nature, which aims at placing on all organs of the Court, including the Prosecution, the obligation to take “appropriate measures” for the protection of witnesses and not to attribute to any of the organs of the Court, including the Prosecution, the power to take whichever protective measure the relevant organ may consider necessary to protect a given witness. Every organ of the Court has the obligation to pay particular attention to the needs of the witnesses in performing their functions and to cooperate, whenever necessary, with those organs of the Court that are competent to adopt specific protective measures [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 26-27].
The Pre-Trial Chambers are in particular mandated to ensure that measures are adopted for these purposes [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 10 March 2008, p. 6]. Victims as well as witnesses may move the Court to take protective measures for their safety, physical and psychological well-being, dignity and privacy as foreseen inter alia in Article 68(1) and (2) of the Statute and rules 87 and 88 of the Rules [Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008, para. 50]. Moreover, the Court may also order said measures proprio motu under Article 68(1), such as inviting representatives of organisations to submit observations on current and specific issues related to the protection of victims [Situation in Darfur, ICC PT. Ch. I, 24 July 2006, p. 4] or mandating the non-disclosure of the identity of victim applicants to the Defence [Prosecutor v. Katanga and Ngudjolo, ICC PT Ch. I, Decision on the Defence Application for Leave to Appeal the "Decision authorising the filing of observations on the applications for participation in the proceedings a/0327/07 to a/0337/07 and a/0001/08", 27 February 2008, p. 5] or to the public [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, paras. 21-22] for security reasons.

Control over protective measures
The Chambers of the Court may control the protective measures applied by other organs of the Court and correct them, resorting to the powers expressly entrusted by Article 57(3)(c) of the Statute, if they determine that the behaviour of another organ, such as the Registry, has created a serious risk for the witnesses’ safety [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 49-52]. In this regard, the decisions of the Registrar on protective measures will only be struck down either if it has applied an incorrect approach (e.g. the wrong criteria) or if the Victims and Witnesses Unit has arrived at a conclusion which, on an assessment of the facts, is plainly wrong. The Victims and Witnesses Unit is entrusted with the discretion to consider applications for protective measures pursuant to Articles 43 and 68 of the Statute and regulation 96 of the Regulations of the Registry, and the Court may review its decisions either proprio motu or upon an application by the parties or the participants, applying judicial review principles [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, para. 82].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(1) - measures to protect the safety, well-being, dignity and privacy

[560] to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.
Proportionate measures
Article 68(1) of the Rome Statute encompasses the principle of proportionality, according to which protective measures should restrict the rights of the parties only as far as necessary, taking into account the nature and purpose of the proceedings at stake [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 4; Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on legal representation, appointment of counsel for the defence, protective measures andtime-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 1 February 2007, para. 24]. Particular protective measures must be adopted on a case-by-case basis if and when the need arises [Situation in Darfur, ICC PT. Ch. I, 8 June 2007, p. 4; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 19 June 2007, p. 7].

List of measures
The protective measures ordered by the Court under Article 68(1) of the Rome Statute include i) the redaction of the applications for participation received from victims under Article 68(3) and transmitted to the parties for a reply under rule 89(1), especially if the suspect or accused may have access to said applications [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 3; Lubanga, ICC PT. Ch. I, 29 September 2006, p. 2; Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, paras. 20-21 and 28-29]; ii) the redaction of submissions or decisions that are under seal before making them public [Prosecutor v. Lubanga, ICC PT. Ch. I, 17 March 2006, pp. 3-4] or the redaction of evidence before transmitting it to the suspect or accused [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 10 March 2008, p. 7. ]; iii) the use of ex parte filings and ex parte hearings [Prosecutor v. Lubanga, ICC T. Ch. I, 26 September 2007, para. 27; Lubanga, ICC T. Ch. I, 24 April 2008, para. 104]; iv) the use of reference numbers assigned by the Victims Participation and Reparations Section to the names of victims and witnesses [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, p. 24; Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, p. 52; Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC PT. Ch. I, 13 May 2008, paras. 21-22; Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, p. 41; Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, p. 39]; v) the prohibition for the parties to directly obtain confidential information on victims and witnesses, without a Chamber deciding whether to allow the parties to disclose confidential information regarding victims and witnesses [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 11 September 2007, p. 7]; vi) the prohibition for the parties to directly contact victims and witnesses and the obligation to do so only through their legal representatives, the VPRS or the VWU if strictly necessary [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 6; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 21 June 2007, p. 5; Situation in Darfur, ICC PT. Ch. I, 23 May 2007, pp. 2 and 4; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, p. 24; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, p. 52; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, p. 42; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, p. 39]; vii) the non-publication of particular motions or requests, such as those requesting the issuance of warrant of arrests, until otherwise ordered by a Chamber [Prosecutor v. Lubanga, ICC PT. Ch. I, 17 March 2006, p. 2]; viii) the holding of hearings in closed session [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Schedule and Conduct of the Confirmation Hearing, 7 November 2006, pp. 5 and 7]; ix) the provision of assistance to witnesses in the experience of giving oral evidence before the Court so as to prevent them from finding themselves in a disadvantageous position or from being taken by surprise as a result of their ignorance of the process of giving oral testimony (“witness familiarization”) before the Court [Prosecutor v. Lubanga, ICC PT. Ch. I, 8 November 2006, paras. 20-21; Prosecutor v. Lubanga, ICC T. Ch. I, 30 November 2007, paras. 33-34]; x) the disclosure in advance of the questions or the topics intended to be covered by the parties and participants during their questioning in order to protect traumatised or vulnerable witnesses [Prosecutor v. Lubanga, ICC T. Ch. I, 29 January 2008, para. 33; Prosecutor v. Lubanga, ICC T. Ch. I, 20 March 2008, para. 37]; xi) the relocation of witnesses included in the Protection Programme of the Court [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 23-25]; xii) the denial of provisional release requested by a suspect or accused [Prosecutor v. Bemba, ICC T. Ch. III, 27 September 2011, para. 33; Prosecutor v. L. Gbagbo, ICC T. Ch. I, 11 November 2014, para. 64]; and xiii) the modification of the time limits to issue decisions under Article 61 [Prosecutor v. Ruto et al., ICC PT. Ch. II, 26 October 2011, paras. 13-14].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(1) - factors to be considered when adopting protective measures

[561] 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 drafters of the Statute and the Rules of Procedure and Evidence included a number of provisions specifically governing the protection of victims of sexual offences as a result of crimes within the jurisdiction of the Court. In particular, under Article 68(1) of the Statute the Court is required to take appropriate measures to protect victims and witnesses, and to have regard to all relevant factors, “in particular, but not limited to, where the crime involves sexual or gender violence or violence against children” [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 23 January 2008, para. 17]. More generally, protective measures must be adopted on a fact sensitive rather than a mechanical or formulistic basis, identifying the relevant criteria, assessing the level of any threat, the likelihood of harm and the overall risk to the particular individual. In this regard, the Victims and Witnesses Unit of the Court should interpret the expression “likelihood of harm” in a sufficiently flexible and purposive manner to ensure proper protection for any witness who, following careful investigation, faces an established danger of harm or death [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, para. 79].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(1) - obligation of the Prosecutor to take appropriate protective measures

[562] The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes.
Initiative on measures
By the terms of Article 68(1) of the Statute, the Prosecutor is bound to take measures protective of the safety and well-being of victims. The Prosecutor is equally under obligation to take measures or request that measures be taken for the protection of any person including victims [Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008, para. 54]. However, there is no provision in the legal instruments of the Court which confers upon the Prosecutor a power to preventively relocate witnesses until they are included in the Protection Programme of the Court [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 23-25].

Protective measures vis-à-vis the Prosecutor
The statutory obligation on the Prosecution to take appropriate protective measures has sometimes been taken into account by the Chambers to exclude the application vis-à-vis the Prosecutor of some protective measures adopted by the judges, such as the redactions in the victims’ applications for participation in the proceedings [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 5].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(1) - protective measures and rights of the Defence

[563] These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
Protective measures and fair trials
While the safety and security of victims is a key responsibility of the Court, when protecting victims the Court must ensure that the rights of the defence are respected and that the trial remains fair [Prosecutor v. Ngudjolo, ICC A. Ch., 23 September 2013, para. 16]. The right of endangered witnesses to protection and of the defendant to a fair trial are immutable, and neither can be diminished because of the need to cater for other interests. Accordingly, if the real possibility exists that the evidence at hand may contribute to a resolution of material factual issues in the case in favour of the accused, the latter is to be provided with it, once protective measures, if relevant, have been implemented. Similarly, the right of a witness to protection cannot be diminished because of the importance of other considerations [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, para. 94].

Consequences of no protection by the Victims and Witnesses Unit
Therefore, following a valid refusal by the VWU to provide protective measures for a particular witness or information-provider who provides eyewitness or first-hand evidence of relevant events, the Prosecution must serve the Defence the potentially exculpatory material (the non-redacted witness statements and accompanying documents) in a suitably full and non-redacted form, and including by revealing the identity of the witness [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, para. 95].

Consequences of no cooperation by witnesses
For the subgroup of witnesses who provide potentially exculpatory evidence, which the Prosecution is unable to concede, and who may be at risk if their identity and involvement with the court is revealed but who either refuse offers of protection or decline to cooperate further with the court, or both, the Chambers must select a solution from the range of possibilities that satisfies both obligations under Aticle 68(1): i) for witnesses eventually deciding to cooperate with the judicial process, from full disclosure of the witness’ identity and evidence to all parties, participants and the public, and giving evidence publicly in open court without special measures (rule 88), through to serving redacted evidence and permitting varying levels of anonymity (including the use of a pseudonym vis-à-vis the public), together with the witness testifying behind a screen or remotely, either via video-link or by way of pre-recorded testimony (rules 67 and 68) [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, paras. 97-98]; and ii) for witnesses not cooperating further with the Court or unable to be traced, from the disclosure to the accused of a redacted version of their statements and any other relevant material on an anonymous basis, through to eliminating the evidential value of said statement [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, para. 99].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(2) - manner of conduct of proceedings to protect victims, witnesses or accused

[564] 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.
Closed sessions as an exception
Closed sessions are a protective measure granted only on an exceptional basis, as it deprives the public from understanding parts of, or the entirety of, a witness's testimony and therefore, may affect the overall fairness of the proceedings. Some Chambers have, in consultation with the parties and participants, established practices for the limited use of in camera hearings [Prosecutor v. Bemba, ICC T. Ch. III, 19 November 2010, para. 23]. The Court usually calls upon parties and participants insofar as possible, to endeavour to have witnesses’ testimonies given in public, and does not favour evidence being given entirely in closed session because there are other possible measures available to protect sensitive information such as witnesses’ identities and identifying information –for instance, pursuant to regulation 21(2) of the Regulations of the Court, broadcasts of audio and video recordings of all hearings are delayed by at least 30 minutes [Prosecutor v. Bemba, ICC T. Ch. III, 19 November 2010, para. 25].

Preparation and conduct of closed sessions
The practice of the Court on closed sessions has established that i) each request for private session should specify the grounds for such protective measure in a neutral and objective fashion, and try to specify the points that will be touched upon; ii) parties and participants should provide the Chamber with reasons justifying the continuation of the private session if the reasons that motivated the Chamber’s decision for such session have changed; iii) parties and participants are usually encouraged not to request that the Court goes into private session unless there is a serious and established risk which needs to be explained to the Chamber; iv) in preparing their lines of questioning, parties and participants should be endeavour to group together all the identifying questions and to ask these questions at the beginning of the testimony; v) each party calling a protected witness, must prepare and provide the Chamber, and the parties and participants, with a list of sensitive information and related questions to be dealt with in private session; vi) in addition to the Chamber’s proprio motu power to reclassify a document, parties and participants should draw the attention of the Chamber to any part of the transcript of a private session that could be reclassified as public after more detailed analysis or a change in circumstances [Prosecutor v. Bemba, ICC T. Ch. III, 19 November 2010, para. 23].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(3) - personal interests

[565] 3. personal interests as additional requirement
The “personal interests” criterion included in Aticle 68(3) constitutes an additional requirement to be met by victims, over and above the victim status accorded to them under Rule 85, since the same criterion is not included in other provisions granting specific participatory rights to victims, such as Articles 15(3) and 19(3) of the Rome Statute [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, 17 January 2006, para. 62]. This requirement serves two interrelated purposes: in the negative, it excludes victims’ participation in proceedings the outcome of which does not affect their interests; in the positive, it grounds the right of the victims to participate before the Court once the other criteria have been met. This criterion is only provided for the purposes of the participation of victims and, being lex specialis for a particular participant in the proceedings, cannot be applied by analogy to ground the granting of participatory rights to any person(s) [Situation in Kenya, ICC PT. Ch. II, 11 February 2011, para. 12].

Personal interests of victims vis-à-vis situations
The Court initially found that the investigation of a “situation” brought before the Court affected the victims’ personal interests in general since the participation of victims at said stage could serve to clarify the facts, to punish the perpetrators of the crimes and to obtain reparations for the harm suffered [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, 17 January 2006, paras. 63 and 72; Situation in Darfur, ICC PT. Ch. I, 14 December 2007, para. 11; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 26]. Consequently, the Court initially determined that the assessment of the personal interests of victims in specific proceedings carried out during the investigation of a situation was only to be conducted for the determination of the specific set of procedural rights enjoyed by victims [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 7 December 2007, para. 3; Situation in Darfur, ICC PT. Ch. I, 14 December 2007, para. 13; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 23 January 2008, p. 5; Situation in Darfur, ICC PT. Ch. I, Decision on Request for leave to appeal the "Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor", 23 January 2008, p. 5; Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 5]. From this perspective, the Court initially concluded that the personal interests of victims could be affected during an investigation where proceedings i) were initiated proprio motu by the Pre-Trial Chamber under Article 56(3) and Article 57(3)(c) of the Statute, ii) were initiated by the Prosecution or the Defence, or iii) were requested by the victims themselves [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, 17 January 2006, paras. 73-75].
The Appeals Chamber eventually overturned this understanding of Article 68(3) of the Statute, finding that victims cannot be granted a general right to participate in the investigation. The participation of victims within the meaning of Article 68(3) of the Statute “can take place only within the context of judicial proceedings”, including proceedings affecting investigations, provided their personal interests are affected by the issues arising for resolution [Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, 11 July 2008, paras. 2 and 61-62; Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008, paras. 45 and 56-57; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 4 June 2012, para. 46]. In this regard, victims who have been authorised to participate in the proceedings are generally allowed to submit observations on the proposed activities by the Trust Fund for Victims, since said activities may have an impact on crucial issues before the Chamber as well as the protection and privacy of victims [Situation in Uganda, ICC PT. Ch. II, 5 March 2008, p. 4].

Personal interests of victims vis-à-vis cases
By contrast, the Court has considered incontrovertible from the start of its activities that the personal interests of a victim are affected in respect of a “case” relating to the very crime(s) in which that victim was allegedly involved. Accordingly, this requirement is met whenever a victim pursuant to rule 85 applies for participation in proceedings following the issuance of a warrant of arrest or of a summons to appear in a case where the said victim was allegedly involved [Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-01/05-252, 10 August 2007, paras. 9-10]. In some occasions, the Court has considered that to have a declaration of the truth by the competent body [Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC PT. Ch. I, 13 May 2008, paras. 31-36], and to have the victimisers prosecuted, tried and convicted, and subjected to a certain punishment [Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC PT. Ch. I, 13 May 2008, paras. 37-44 and 160] are among the victims’ personal interests. As a result, the Court has determined at once the rights that victims authorised to participate may exercise in the pre-trial stage of the case (the so-called “systematic approach”) [Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC PT. Ch. I, 13 May 2008, para. 49].

Personal interests of victims vis-à-vis trials
In other occasions, the Court has distinguished the general interests of the victims in receiving reparations, establishing the truth, protecting their dignity, ensuring their safety, etc. from the victims’ “personal interests” whose affection they need to show in order to be authorised to participate in the trial of a case. As a result, the Court has determined that the question of whether the “personal interests” of a victim are affected pursuant to Article 68(3) during a trial is necessarily fact-dependent and is determined, for instance, by the victim’s involvement in or presence at a particular incident which a Chamber is considering, or if the victim has suffered identifiable harm from said incident (the so-called “casuistic approach”). In other words, pursuant to Article 68(3) a victim must show the reasons why his or her interests are affected by the evidence or issues arising in a case before a Trial Chamber, which are defined in turn by the alleged crimes the accused faces [Prosecutor v. Lubanga, Decision on victim's participation, ICC T. Ch. I, 18 January 2008, paras. 96-98]. In practical terms, a victim who wishes to participate in relation to any identified stage of the proceedings must set out in a written application not only the nature and the detail of the proposed intervention, but also the way in which his or her personal interest is affected at said proceeding [Prosecutor v. Lubanga, ICC T. Ch. I, 18 January 2008, para. 102]. For instance, the personal interests of victims may be affected by the outcome of the confirmation hearing to the extent that it aims at either i) confirming the charges against those responsible for perpetrating the crimes which caused harm to the victims or ii) declining to confirm the charges for those not responsible for such crimes, so that the search for those who are criminally liable can continue [Prosecutor v. Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 23]. Similarly, the personal interests of victims may, in principle, be affected by a determination as to the fitness of a suspect to participate in the hearing on the confirmation of charges against him, in particular by any delay in the proceedings which may result therefrom [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 15 August 2012, para. 13], as well as by the amendment of the charges against an accused person [Prosecutor v. Kenyatta and Muthaura, ICC PT. Ch. II, 29 January 2013, para. 11].

Personal interests of victims vis-à-vis appeals
Following the casuistic approach, the Appeals Chamber has ruled that any determination of whether the personal interests of victims are affected in relation to a particular appeal requires careful consideration on a case-by-case basis, assessing in each case whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor [Prosecutor v. Lubanga, ICC A. Ch., Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the "Directions and Decision of the Appeals Chamber" of 2 February 2007, 13 June 2007, para. 28; Prosecutor v. Lubanga, ICC A. Ch., Decision, in limine, on Victim Participation in the appeals of the Prosecutor and the Defence against Trial Chamber I's Decision entitled "Decision on Victims' Participation", 16 May 2008, para. 42; Prosecutor v. Katanga, ICC A. Ch., 17 January 2013, para. 9; Prosecutor v. Banda and Jerbo, ICC A. Ch., 06 May 2013, para. 12; Prosecutor v. L. Gbagbo, ICC A. Ch., 27 August 2013, para. 11; Prosecutor v. L. Gbagbo, ICC A. Ch., 29 August 2013, para. 10]. Accordingly, the Court has ruled that in their applications to participate in any appeal victims must include a statement in relation to whether and how their personal interests are affected by the issues on the appeal at hand [Prosecutor v. Lubanga, ICC A. Ch., 13 February 2007, para. 43; Prosecutor v. Lubanga, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the "Directions and Decision of the Appeals Chamber" of 2 February 2007, ICC A. Ch., 13 June 2007, para. 23; Situation in the Democratic Republic of the Congo, ICC A. Ch., 14 February 2008, p. 3; Situation in Darfur, ICC A. Ch., 18 June 2008, para. 49]. More specifically, in seeking to demonstrate that their personal interests are affected, victims should generally ensure, inter alia, that express reference is made to the specific facts behind their individual applications, and the precise manner in which those facts are said to fall within the issue under consideration on appeal [Prosecutor v. L. Gbagbo, ICC A. Ch., 27 August 2013, para. 11]. Concerning appeals against judgments brought under Article 81, the Appeals Chamber has found that the victims’ personal interests are affected in the same way as they were affected during the trial in which the victims participated [Prosecutor v. Lubanga, ICC A. Ch., 13 December 2012, para. 3; Prosecutor v. Ngudjolo, ICC A. Ch., 06 March 2013, para. 3].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(3) - identification of the victims

[566] of the victims are affected
Rule 85 determination
The persons referred to as “victims” in this provision are not identified in the Rome Statute but in rule 85 of the Rules of Procedure and Evidence. In this regard, the Court has determined that once said identification has been made during a phase of the proceedings, the Chambers need not inquire again whether the same persons qualify as victims in subsequent proceedings, but must proceed to the next stage of the enquiry under Article 68(3), namely, whether their personal interests are affected by the issue(s) in the proceedings at hand [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on victim's participation, 18 January 2008, para. 101; Situation in the Democratic Republic of the Congo, ICC A. Ch., Decision on Victim Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I's Decision of 7 December 2007 and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I's Decision of 24 December 2007, 30 June 2008, para. 92].

[570] 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.
Victims’ direct participation
The use of the term “may” in Article 68(3), the lack of reference to a legal representative in rule 89(3) and the victim’s freedom to choose a legal representative foreseen in rule 90(1) entail that a victim’s participation in the proceedings before the Court is not conditional upon the victim being assisted by a legal representative, even after the victim’ application has been granted [Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on legal representation, appointment of counsel for the defence, protective measures andtime-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 1 February 2007, paras. 3-6; Prosecutor v. Ruto and Sang, ICC T. Ch. V, 3 October 2012, para. 49; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 3 October 2012, para. 48]. In fact, victims have the right to participate directly in the proceedings, since Article 68(3) provides that when the Court considers it appropriate the views and concerns of victims may otherwise be presented by a legal representative [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on Victim's Participation, 18 January 2008, para. 115; Prosecutor v. Ruto and Sang, ICC T. Ch. V, 3 October 2012, para. 26; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 3 October 2012, para. 25].

Victims’ participation through legal representatives
Nonetheless, the Court has found that there are at least two categories of victims: i) victims admitted to the proceedings and assisted by a legal representative, who enjoy enhanced procedural rights under rule 91, and ii) victims admitted to the proceedings but not assisted by a legal representative, who enjoy more limited rights of participation [Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on legal representation, appointment of counsel for the defence, protective measures andtime-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 1 February 2007, para. 10]. The latter may make opening and closing statements, but are precluded from participating in hearings and from questioning a party or a witness [Prosecutor v. Kony et al., ICC PT. Ch. II, 1 February 2007, para. 7].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(4)

[571] 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court
Others at risk on account of the activities of the Court as clients
On the basis of inter alia Article 68(4) of the Rome Statute, the Appeals Chamber has found that specific provisions of the Statute and the Rules provide for the protection not only of witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court, indicating an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court [Prosecutor v. Katanga, ICC A. Ch., 13 May 2008, para. 54].

Court as client
Similarly, reading Article 68(4) of the Rome Statute together with Article 43(6), the Appeals Chamber has concluded that it may be appropriate and of assistance to it to hear from the Registrar in particular appeals dealing with protective measures [Prosecutor v. Katanga and Ngudjolo, ICC A. Ch., 11 July 2008, para. 4].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(4) - Services of the Victims and Witnesses Unit

[572] on appropriate protective measures, security arrangements, counselling and assistance as referred to in Article 43, paragraph 6.
Victims and Witnesses Unit’s exclusivity for victims’ safety and security
Article 68 of the Statute, dealing inter alia with the protection of victims, refers to the Registry as a whole and not to the Office of Public Counsel for Victims per se, since the Office falls within the remit of the Registry solely for administrative purposes. Therefore, the OPCV has no specific functions relating to any concerns victims may have for their security and safety. Consultation with the Victims and Witnesses Unit is the proper way to address the victims’ safety and security issues [Prosecutor v. Kony et al., ICC PT. Ch. II, 16 March 2007, pp. 5-6]. Similarly, the decision of the drafters to create a single Victims and Witnesses Unit within the Registry constitutes a clear endorsement of a system of witness protection in which the core role is played by the Registry and a limited mandate is given to the Prosecution, ensuring the equality of arms between the parties as well as the effective use of the Court’s resources [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 28 and 31]. Nonetheless, if the Victims and Witnesses Unit properly assesses and rejects referrals to its protection programme, thereafter it is for the referring party to decide whether to secure any other protective solution, as it considers appropriate [Prosecutor v. Lubanga, ICC T. Ch. I, 24 April 2008, para. 80].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(5)

[573] 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
The aim behind Article 68(5) –as well as behind Article 61(5)– is first and foremost to ensure the safety of Prosecution witnesses, and minimise the potentially traumatic effects of giving testimony in court by exempting witnesses from the requirement to do so twice, first before the Pre-Trial Chamber and again before the Trial Chamber [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 99].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(5) - summary evidence

[574] withhold such evidence or information and instead submit a summary thereof.
Consequently, although the Defence must, in principle, have access to the non-redacted version of the prior statements of any witness on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 98], said information may be withheld and replaced with summaries when the disclosure to the Defence of said witness statements, transcripts of witness interviews and investigators’ notes and reports of witness interviews would lead to the identification of the Prosecution witnesses, even with the redactions proposed by the Prosecution [Prosecutor v. Lubanga, ICC PT. Ch. I, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, 15 September 2006, paras. 8-13].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 68(6)

[575] 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.
See the commentary on Article 72.

Cross-references:
Articles 43(6), 54(1)(b), 54(3)(f), 61(5), 67(1) and 72
Rules 16, 17, 18, 19, 43, 81, 85, 86, 87, 88, 89, 90, 91, 92, 93, 119(3), 131(2), 134 and 194(3)
Regulations 20, 41, 42 and 86

Doctrine:

Silvia A. Fernández de Gurmendi, "The Process of Negotiations", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999, pp. 217-226.
David Donat-Cattin, "Article 68: Protection of Victims and Witnesses and their Participation in the Proceedings", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Nomos Verlagsgesellschaft, Baden-Baden, 1999, pp. 869-888.
John R.W.D. "Jones, Protection of Victims and Witnesses", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, 2002, pp. 1387-1419.
Claude Jorda/Jérôme de Hemptinne, "The Status and Role of the Victim", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, 2002, pp. 1387-1419.
Carsten Stahn et al., "Participation of Victims in the Pre-Trial Proceedings of the ICC", Journal of International Criminal Justice, vol. 4, no. 2, 2006, pp. 219-238.
David Donat-Cattin, "Article 68: Protection of Victims and Witnesses and their Participation in the Proceedings", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1275-1300.
Paolina Massidda/Caroline Walter, "Article 68: Protection et participation au procès des victimes et des témoins", in Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale international: Commentaire Article par Article, Pedone, Paris, 2012, pp. 1545-1576.
Rogier Bartels, "Rome Statute of the International Criminal Court – Article 68: Protection of Victims and Witnesses and their Participation in the Proceedings", in Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, pp. 322-343.
Anne-Marie De Brouwer/Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, pp. 1299-1337.

[584] 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 69(8) is consistent with rule 63(5) that the Chambers shall not apply national laws governing evidence, except in accordance with Article 21. There is a relationship between the irrelevane of national law and the exclusionaru rule in Article 69(7). In Prosecutor v. Lubanga, ICC PT. Ch. I, Decison on the confirmation of charges, 29 January 2007, paragraph 69, PTC I stated that the mere fact that a national court “has ruled on the unlawfulness of the search and seizure conducted by the national authorities cannot be considered binding on the Court”.

Cross-references:
Regulations 43 and 44

Doctrine:

Hans-Jörg Behrens, “The Trial Proceedings”, in Roy S. Lee (Ed.), The International Criminal Court: the Making of the Rome Statute: Issues, Negotiations and Results, Kluwer Law International, The Hague, 1999, pp. 238-246.
Gideon Boas, “Admissibility of Evidence under the Rules of Procedure and Evidence of the ICTY: Development of the ‘Flexibility Principle’”, in Richard May et al. (Eds.), Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk McDonald, Kluwer Law International, The Hague, 2001, pp. 263-274.
Richard May/Marieke Wierda, International Criminal Evidence, Ardsley, New York, Transnational Publishers, 2002.
Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013.
Donald K. Piragoff, "Article 69 - Evidence", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1301-1336.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 836-851.

Cross-references:
Rules 163, 164, 165, 170 and 171.

Author: Geoff Roberts

Updated: 30 June 2016

Article 70(2) - international cooperation

[597] 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.
Article 70(2) provides that the conditions for providing international cooperation to the Court with respect to Article 70 proceedings shall be governed by the domestic laws of the requested State. The requests could include requests to arrest, detain and transfer an accused, requests to interview certain persons or indeed requests for the search and seizure of certain evidence. By allowing the domestic laws of the requested State to govern whether the conditions for fulfilling such requests have been met, the Court grants significant power to the individual States to accept or reject these requests and therefore maintain control over these proceedings. The specifics of how this is implemented is addressed in relation to Rule 167(2).

Cross-reference:
Rule 167

Author: Geoff Roberts

Updated: 30 June 2016

Article 70(3)

[598] 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.
Article 70(3) provides for a sentence of imprisonment not exceeding five years for an offence against the administration of justice or a fine or a combination. Rule 166 further establishes the procedure for imposing fines and forfeiture orders. In is unclear whether an accused may receive multiple consecutive sentences for Article 70 offences or whether five years is considered to be the maximum sentence for all convictions combined. Article 77, which regulates penalties for core crimes, establishes under Article 77(1)(a) that the ”penalty may not exceed a maximum of 30 years” and separately sets life imprisonment under Article 77(1)(b) ”when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”. In light of the fact that Article 70 does not propose an exception to the limit of 5 years, it is to be presumed that this would be the absolute maximum even for consecutive offences for offences under Article 70.

Cross-reference:
Rule 166

Author: Geoff Roberts

Updated: 30 June 2016

Article 70(4)

[599] 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.
The obligation upon all State Parties to “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” in Article 70(4)(a) most closely replicates the original provision in the ILC Draft Statute. It seeks to place the burden on national states to investigate and prosecute these offences rather than the Court itself. Article 70(4)(b) reinforces this burden sharing by obliging State Parties to submit a case to the competent authorities for the purpose of prosecution whenever it is deemed proper. Once submitted, the competent authorities, are further obliged to treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively. This provision appears to demonstrate the concern of the Court that simply referring to the general obligation upon States Parties to cooperate under Article 86, is not sufficient in terms of prosecuting Article 70 offences and that an additional more extensive obligation is necessary.

Cross-references:
1. Articles 5-8, 30(2), 34, 69(1), 71, 77, 86
2. Rules 162-169

Doctrine:

Georghios M. Pikis, "The Rome Statute for the International Criminal Court, Analysis of the Statute, the Rules of Procedure and Evidence", The Regulations of the Court and Supplementary Instruments, Brill, Nijhoff, pp. 230-232, 2010
Donald K. Piragoff, "Article 70: Offences Against the Administration of Justice", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1337-1345.

Author: Geoff Roberts

Updated: 30 June 2016

Article 71

[600] Sanctions for misconduct before the Court
General Remarks
Article 71 concerns contempt of court, i.e. conduct that takes place in the court and that defies the authority or dignity of the court. Reactions towards such behaviour is accepted in most legal systems of the world, but differences do exist as to line between punishable behaviour and less severe conduct. Sanctions may vary, from exclusion from the courtroom to fines and imprisonment. The purpose of Article 71 is thus to avoid behaviour which prevent proper proceedings, for example intimidation of witnesses, disruptions, witnesses refusing or failing to answering a question.

Author: Mark Klamberg

Updated: 30 June 2016

Article 71(1)

[601] 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.
From the words "persons before it" follows that the provision only applies to misconduct cimmitted inside the courtroom and not conduct outside the courtroom.
   Although Article 71 is contained in Part 6 "The Trial" of the Rome Statute, it also applies to the proceedings of the Pre-Trial Chamber. It applies to public as well as closed sessions (Triffterer, p. 1351).
  When the Court is in doubt whether the conduct is acceptable, it should advise the person concern and express a warning before issuing a saction. This is concistent with rule 71(5) which provides that "[t]he person concerned shall be given an opportunity to be heard before a sanction for misconduct, as described in this rule, is imposed".
   The paragraoh lists two examples of misconduct: disruption of proceedings and deliberate refusal to comply with directions. However, the word "including" suggest that these are only examples other behavioyr may also fall within the scope of Article 71.

Author: Mark Klamberg

Updated: 30 June 2016

Article 71(2)

[602] 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.
During the negotiations of the Rome Statute some issues were left without agreement to be resolved by the rules of procedure and evidence. The rules have not managed to fill these gaps in a satisfactory manner. For example, it is unclear whether Sates Parties have an obligation to cooperate and give judicial assistance to the Court in relation to fines imposed for misconduct. The Court could potentially rely upon the second sentence in Article 70(2), paras. (3) and (4). Misconduct covered by Article 71 ma also amount to a violation covered by Article 70 which make the rulesenacted pursuant to Article 70 applicable. (Triffterer, p. 1359 and Schabas, p. 860).

Cross-references:
Rules 170, 171 and 172
Regulation 29

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 859-860.
Otto Triffterer, "Article 71", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1347-1360.

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 861-869.
Rodney Dixon/Helen Duffy/Christopher K. Hall, "Article 71", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1361-1378.

Author: Mark Klamberg

Updated: 30 June 2016

Article 73

[611] 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.
General Remarks
Article 73 concerns the flow of infromation betwen States, and betwen States and organizations. The provision might have been better placed in Part 9 governing State cooperation because it limits the duty of States to provide assistance to the Court.

Analysis:
Articles 73 and 93(9)(b) allow a State party to refuse to provide documents or information disclosed to it in confidence by a third State or an international organization, if the consent to disclosure is refused by the originator.
    The provision only relates to States Parties and not to Non-States Parties. Non-States Parties can enter into agreement to cooperate with the Court under Article 87(5) but in absence of such agreement there is no obligation to cooperate.
   The second sentence provides that if the originator is a State Party, information and evidence can only be withheld if the originator State invokes national security concerns under Article 72. Requests where the originator is a State Party is in essence a request to the that State Party. A more straightforward approach for the Court would be to ask that State in the first place which makes this part of Article 73 appear redundant (Schabas, p. 871).
   If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court of the refusal.
   The words "in confidence" should be construed narrowly to prevent illegitimate use of article 73, such as to protect evidence of crimes committed by a State's own nationals (Duffy and Hall, p. 1383).

Doctrine:

Annalisa Ciampi, "The Obligation to Cooperate", in Antonio Cassese et al. (Eds.) The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1607-1638.
Helen Duffy/Christopher K. Hall, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1379-1385.
William A., Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 870-871.

Author: Mark Klamberg

Updated: 30 June 2016

Article 74

[612] Requirements for the decision
General Remarks
Article 74 regulates the key aspects of judicial deliberations in the Trial Chamber on the issue of the guilt or innocence of the accused and sets requirements towards the format and content of the judgment on the merits. This includes the judges’ presence requirement as a precondition of the decision’s validity (Article 74(1)), the admissible basis and scope of the decision (Article 74(2)), the judicial duty to strive for unanimity and the majority rule (Article 74(3)), the principle of secrecy of judicial deliberations (Article 74(4)), and the requirements regarding the format, reasoning, and the delivery of decisions (Article 74(5)). Notably, deliberations and delivery of judgment are the only interval of the trial stage of the ICC proceedings that is subject to a fairly detailed regulation in the Statute. Other segments of trial, in particular the order and manner in which evidence is to be submitted, are left for the determination of the Trial Chambers, which will confer with the parties and to issue directions for the conduct of the proceedings (Article 64(3)(a) and (8)(b)).
   Neither the title of Article 74 nor its sub-paragraphs state expressly what category of decisions is covered by the provision. However, subparagraph 2 provides that the decision ‘shall be based on [...] the entire proceeding’, and subparagraph 5 stipulates that it ‘shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions’. This language implies that the provision deals solely with the verdicts at trial. Interlocutory decisions of the Trial Chamber may neither be expected to be based on the entire proceeding nor contain findings on the evidence and conclusions. Moreover, Article 81, entitled ‘Appeal against decision of acquittal or conviction or against sentence, establishes in subparagraph 1 the grounds on which the Prosecutor and the convicted person may appeal ‘[a] decision under Article 74’. Article 81(2) addresses appeals against sentencing decisions pursuant to Article 76, while Article 82 covers appeals against ‘other’ (interlocutory) decisions (Article 82(1) and (2)). The combined reading of Articles 74 and 81-82 makes it clear that ‘decision under Article 74' can only be interpreted as referring to the final decision regarding guilty or innocent at trial (see also Triffterer 2008, p. 1391; Safferling 2010, p. 522).
   However, this does not rule out the application of parts of Article 74 by analogy, and mutatis mutandis, to other decisions, to the extent that they are not subject to special regulation. Whilst Article 83(4) and (5) set the requirements towards the judgments of the Appeals Chamber, a statutory gap with respect to the Pre-Trial Chamber, decisions (see e.g. Article 61(7)) may be covered through the application of Article 74 by analogy. In particular, the judicial duty to provide reasoned opinions is a general requirement that holds for all decisions affecting the legal status and interests of parties and participants, although the required degree of detail may legitimately vary by a type of decision. In a similar vein, the Pre-Trial Chambers’ decisions are subject to the duty of judges to genuinely deliberate with one another but may also be rendered by majority, in line with Article 74(3) (Triffterer 2008, p. 1391). By the same token, the requirement in Article 74(2) that the judgment must be limited to evidence on the record must apply to any other decisions that involve the making of factual findings (Jørgensen and Zahar 2013, p. 1155).
   Unlike the ICTY and ICTR Statutes (Article 23 and 22 respectively), Article 74 of the ICC Statute avoids the term ‘judgment’. By contrast, all rulings of the ICC Appeals Chamber are denominated as ‘judgments’. The downside of this approach is that the Statute does not make a traditional distinction between interlocutory and final decisions, whether for the purpose of trial or appeals, which may appear confusing (Boas et al. 2011, p. 377). The reason for this legislative choices is not self-evident and cannot readily be inferred from the drafting history. The draft Statute as submitted to the Preparatory Committee referred to ‘judgement’ in Articles 72 and 80 (UN Doc. A/CONF.183/2, cited in Schabas 2011, p. 319). However, the term was rejected in Rome in favour of a more general term ‘decision’ upon recommendation by the Working Group on Procedural Matters (UN Doc. A/CONF.183/C.1/WGPM/L.2, cited in Schabas 2011, p. 319 footnote 20). As a result, the Committee of the Whole informed the Drafting Committee that ‘the phrase “final decision of acquittal or conviction and sentence” should be used to refer to the final decision of the Trial Chamber throughout the Statute’, without clarifying the rationale behind this choice (‘Note regarding part 6 and Article 72 contained in the transmittal letters from the Chairman of the Committee of the Whole to the Chairman of the Drafting Committee dated 10 and 11 July 1998’, UN Doc. A/CONF.183/DC/R. 145 and Corr. 1, cited in Schabas 2010, p. 874).
   It has been suggested that the omission of the word ‘judgment’ from Article 74 is a result of the drafters’ attempt to avoid a nomenclature associated with particular legal traditions (Schabas 2011, p. 301), although this does not explain why that term was retained for appellate rulings. It is also possible that the drafters wished to reserve the term ‘judgment’ for decisions that are genuinely final, given that the Trial Chamber’s decisions on criminal responsibility are potentially subject to appellate review and may be reversed or amended. Ultimatly, the nuances of terminology have proved to be of little practical relevance. Initially, the ICC Trial Chambers referred to a decision on the merits as ‘Article 74 decision’ (Prosecutor v. Lubanga, ICC T.Ch., Decision on the press interview with Ms Le Fraper du Hellen, ICC-01/04-01/06-2433, 12 May 2010, para. 51; Prosecutor Lubanga, ICC T.Ch., Decision on the translation of the Article 74 Decision and related procedural issues, ICC-01/04-01/06-2834, 15 December 2011, passim, cf. para. 1). But the verdicts delivered in the first cases bear the conventional label ‘judgment’, which means that, despite what the drafters may have had in mind, the judges still preferred the conventional taxonomy (Prosecutor v. Lubanga, ICC T.Ch., Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012; Prosecutor v. Ngudjolo, ICC T.Ch., Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, 18 December 2012; Prosecutor v. Katanga, ICC T.Ch., Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3464, 7 mars 2014; Prosecutor v. Bemba, ICC T. Ch., Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/08-3343, 21 March 2016).

Cross-references:
Articles 64(3)(a) and (8)(b), 81, 82(1) and (2), 83(4) and (5)

Author: Sergey Vasiliev

Updated: 30 June 2016

Article 74(1)

[613] 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.
   In order for the Trial Chamber to be properly constituted at each stage of the trial and be competent to issue a valid verdict, Article 74(1) requires that all three judges of the Chamber (Article 39(2)(b)(ii)) must have participated throughout the trial and deliberations. In Lubanga, the Trial Chamber considered this provision to make it ‘clear beyond doubt that during the trial the three judges shall function in banco’ (Prosecutor v. Lubanga, ICC T.Ch., Decision on whether two judges alone may hold a hearing – and – Recommendations to the Presidency on whether an alternate judge should be assigned for the trial, ICC-01/04-01/06-1349, 22 May 2008, para. 12).
    The requirement of the presence at trial ensures that the judgment is rendered by the bench each member of which is in a position to evaluate ‘the entire proceedings’ (Article 74(2)). This implies the highest degree of knowledge of the evidence and issues discussed during the trial (Triffterer 2008, p. 1391). The same degree of knowledge may be difficult to achieve for a judge who has absented from one or more of the trial hearings. In respect of the evidentiary hearings, no subsequent familiarization with the transcript of testimony or a summary of evidence would be sufficient to remedy the absent judge’s inability to directly observe the demeanour of a witness, which is crucial for the credibility assessment.
   Moreover, the familiarity with the trial record will not always compensate for the absence of a judge because the ICC judges’ role during the trial is not limited to passive presence. Depending on the specific context, it might require active contributions to the court’s inquiry by posing questions to witnesses and experts (Rule 140(2)(c)) and by deciding whether the submission of evidence should be ordered (Article 69(3)). Whilst being the primary responsibility of the Presiding Judge, the conduct of trial hearings is a collective effort. All judges of the Trial Chamber are expected to participate in this process, and to be available for consultation (Regulation 43).
   By establishing a formal duty of the judges to be present ‘throughout deliberations’, the Statute extends the presence requirement to all deliberation conferences. Due to the secrecy of the internal workings of the Chambers (Article 74(3)), the judicial attendance during deliberations is more difficult for the public to police than the judges’ presence at trial. But as a matter of law, there is an unconditional duty incumbent on all members of the Trial Chamber to be directly and personally involved in every stage of the final decision-making. This involvement extends beyond taking part ‘at the decisive parts of deliberations’ and during voting (cf. Triffterer 2008, p. 1392). The bulk of deliberations may consist in the exchange of drafts and written memoranda among the Trial Chamber judges. But the participation by a judge in the deliberations on the judgment solely through written submissions whereas other members of the bench convene for deliberation in person would arguably fail to meet the Article 74(1) requirement. In the interests of preserving collegiality and avoiding an early split in the Chamber, this provision invites the trial judges to plan their deliberation conferences around the dates when one of them is absent from the seat of the Court.
   Notably, the Statute contains no provision obliging all judges of the Trial Chamber to be present at all times during the preparatory stage following the confirmation of charges and leading up to the commencement of the trial. Unlike with the Pre-Trial Chambers, whose functions may be carried out by a single judge (Article 39(2)(b)(iii)), the Statute envisiones no possibility for a single judge to exercise the functions of the Trial Chamber. Therefore, the Lubanga Chamber interpreted the statutory framework as providing for the duty of all three members, next to their attendance at trial as mandated by Article 74(1), to ‘be present for each hearing and status conference during the period following the confirmation of charges and leading up to the beginning of the trial’ (Prosecutor v. Lubanga, ICC T.Ch., Decision on whether two judges alone may hold a hearing - and - Recommendations to the Presidency on whether an alternate judge should be assigned for the trial, ICC-01/04-01/06-1349, 22 May 2008, para. 15). This meant that, during the preparatory stage, ‘any urgent issues that arise during the absence of a judge from the seat of the Court will be dealt with solely on the basis of written representations.’ (ibid.).
   Given the evident inefficiency of requiring the presence of a full bench throughout the preparatory stage of trial proceedings due to what appears to have been an accidental lacuna in the Statute, Rule 132bis was adopted in 2012 (Resolution ICC-ASP/11/Res.2 adopted at the 8th plenary meeting, on 21 November 2012, by consensus, Amendment of the Rules of Procedure and Evidence). The new Rule authorizes a Trial Chamber to ‘designate one or more of its members for the purposes of ensuring the preparation of the trial’. A single judge of the Trial Chamber has broad powers in preparing the case for the trial, in consultation with the Chamber (Rule 132bis(2)-(5)). But he or she ‘shall not render decisions which significantly affect the rights of the accused or which touch upon the central legal and factual issues in the case’; except for deciding on the applications of victims for participation at trial, a single judge may not ‘make decisions that affect the substantive rights of victims’ (Rule 132bis(6)).
   The same procedural rationale of preserving the continuity of adjudication at trial and the completeness of the basis for the decision, underlies the rule contained in the second sentence of Article 74(1). It envisages the possibility for the Presidency to assign, on a case-by-case basis, one or more alternate judges that could replace a judge who is unable to continue attending. The excusals and disqualification of the judge are the specific examples of such situations contemplated by the Statute (Article 41). Rule 38 details this provision by stating that a judge may be replaced for ‘objective and justified reasons’, which include (but are not limited to) resignation; accepted excuse; disqualification; removal from office; and death. Regulation 15(1) provides additionally that in replacing a judge, the Presidency shall take into account, to the extent possible, ‘gender and equitable geographical representation’.
   On several occasions, the Presidency granted judges’ requests for excusal from the exercise of functions as members of their Trial Chambers prior to the commencement of the trial in the respective cases. Thus, the Presidency excused two of the judges of the Lubanga Chamber from presiding over the Bemba trial in which they had served in the preparatory stage, with reference to their workload in the Lubanga case and, in particular, the ‘possible lengthy overlap between the two trials’ (Prosecutor v. Bemba, Decision replacing judges in Trial Chamber III, Presidency, 20 July 2010, p. 3-4 and Decision on the request to be excused from the exercise of judicial functions in Trial Chamber III, pursuant to Article 41 of the Rome Statute, Presidency, 15 July 2010, p. 3).
   When faced with a situation of temporary absence of one of its members during the preparatory stage of the trial, the Lubanga Trial Chamber pointed out the absence of a pre determined procedure (Prosecutor v. Lubanga, ICC T.Ch., Decision on whether two judges alone may hold a hearing - and - Recommendations to the Presidency on whether an alternate judge should be assigned for the trial, ICC-01/04-01/06-1349, 22 May 2008, para. 16). Acting proprio motu and by majority, it took upon itself to consider whether to recommend the Presidency to designate an alternate judge for the trial and ultimately opined that no alternate judge should be appointed. Trial Chamber I referred to the non-extensive scope of the charges and prosecution evidence and the absence of ‘known personal circumstances relating to any of the judges which raise any concerns that one of more of them will be unable to complete this trial’ (ibid., paras 19-23). In no other case so far has the need to designate an alternate judge been raised and considered. The practice relating to Article 74(1) (second sentence), Rule 39, and Regulation 16 is lacking at present.

Cross-references:
1. Articles 39(2)(b)(ii), 41, 69(3)
2. Rules 39, 41, 132bis, 140(2)(c)
3. Regulations 15, 16, and 43

Author: Sergey Vasiliev

Updated: 30 June 2016

Article 74(2) - The Trial Chamber's decision shall be based

[614] The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings.
Article 74(2) lays down three closely interrelated principles restricting the admissible factual scope and evidentiary basis of the Trial Chamber’s decision on criminal responsibility, whilst at the same time safeguarding the Chamber’s adjudicative autonomy. It does so by prescribing what relationship should exist between the Pre-Trial Chamber and the Trial Chamber, given the likely overlap between the decision to confirm charges and the judgment pursuant to Article 74. Such overlaps may in particular arise in part of findings on, and evaluation of, the evidence that is relied upon for the purpose of confirming charges and that forms part of the record transmitted to the Trial Chamber under Rule 130.
   The first sentence of Article 74(2) stipulates that the judgment must be based on the Trial Chamber’s evaluation of evidence and the entire proceedings. In Lubanga, the Trial Chamber held that it would assess the reliability of individual pieces of evidence and their probative value for the purpose of the decision on the merits in the context of other admissible and probative material (Prosecutor v. Lubanga, ICC T.Ch., Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, para. 94). The parties were responsible for specifically identifying the parts of oral and written evidence relied upon and they were expected to explain its relevance to the Article 74 decision in their final submissions (ibid., paras 95-96; Prosecutor v. Lubanga, Transcript, ICC-01/04-01/06-T-342-ENG, 1 April 2011, pp. 64-65). Moreover, in ruling on the admissibility of evidence, the Chamber is guided by the duty to avoid prejudice for a fair trial and ensure a ‘fair evaluation’ in accordance with Article 69(4). The principle of ‘fair evaluation’ mandates the court to rely only on the material that is admissible. The parameters of admissibility of the evidence are its relevance, probative value, and non-prejudicial nature (Prosecutor v. Bemba, ICC A.Ch., Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled “Decision on the admission into evidence of materials contained in the prosecution's list of evidence”, ICC-01/05-01/08-1386, 3 May 2011, para. 37). The latter prong can only be determined if the Chamber duly considers the context and procedural history of the case, in particular any past—and anticipated—delays that are potentially problematic in light of Article 67(1)(c).
   Although the Court’s legal instruments do not clarify the meaning of ‘the entire proceedings’, this element can be interpreted as requiring the Court to adopt a holistic approach to the evaluation of evidence when deciding on the merits of the case. The evaluation should be informed by the consideration of the procedural context in which the evidence is submitted and the conduct of the relevant actors in the courtroom, which are the pertinent aspects of ‘entire proceedings’. This includes, for example, the demeanour of the witness, ‘the manner in which he or she gave evidence’ (Prosecutor v. Lubanga, ICC T.Ch., Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, para. 102), and the accused’s attitude and reactions to the evidence (Triffterer 2008, p. 1395). The temporal aspect of ‘entire proceedings’ is that the evidence may be admitted even after the formal close of the submission of evidence pursuant to Rule 141(1), subject to ‘the reopening of oral proceedings to hear adversarial submissions as to the appropriate weight to be attached in the light of the whole case file’ (Katanga and Ngudjolo Chui, Decision on the request by the Defence for Germain Katanga seeking to admit excerpts from the judgment rendered in Prosecutor v. Lubanga, TC, 26 April 2012, para. 14).
   The qualification ‘its evaluation’ in Article 74(2) underscores that the evaluation of evidence by the Trial Chamber should be its own, rather than that of any other Chamber. The evidence submitted during the confirmation hearing and relied upon in the decision to confirm charges is highly likely to be discussed at trial. Even though at the confirmation stage the Prosecutor may rely principally on documentary or summary evidence and need not call witnesses expected to testify at trial (Article 61(5)), the ICC’s initial practice demonstrates that there will normally be a partial overlap in evidence between the two stages. Whilst this increases a chance that multiple and divergent judicial evaluations will be given to the same evidence in the same case, Article 74(2) reaffirms the Trial Chamber’s competence to evaluate evidence independently.
   Its adjudicative autonomy vis-à-vis the Pre-Trial Chamber involved in the same case follows from the distinct purposes of the confirmation and the trial as well as the fundamentally different functions of the Pre-Trial and Trial Chambers. Importantly, the standards of proof for the purposes of the confirmation of charges and conviction are not the same, both in terms of the quantity of evidence and its persuasiveness as to the guilt (e.g. Prosecutor v. Katanga and Ngudjolo, ICC T.Ch., Decision on the Filing of a Summary of the Charges by the Prosecutor, ICC-01/04-01/07-1547-tENG, 21 October 2009, para. 25). Article 61(7) requires ‘sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’ for the Pre-Trial Chamber to confirm the charges, but Article 66(3) sets the threshold for conviction at ‘beyond reasonable doubt’ and thus compels the prosecution to present additional evidence that can meet that burden. Because the Pre-Trial and Trial Chambers as a matter of principle labour under the different standards of proof, the Trial Chamber must conduct a fully independent assessment of both the admissibility and weight of evidence.
   As held by Trial Chamber I, Article 64(9) provides the Trial Chamber with an ‘unfettered authority … to rule on the admissibility or relevance of evidence’, while Rule 64(1) authorizes it ‘to assess freely’ all evidence when determining admissibility and relevance (Prosecutor v. Lubanga, ICC T. Ch., Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC-01/04-01/06-1084, 13 December 2007, paras 4-5). The evidence admitted by the Pre-Trial Chamber and constituting a part of the record of the proceedings transmitted to the Trial Chamber pursuant to Rule 130, cannot be introduced into the trial automatically: it requires a de novo consideration (ibid., para. 8). This implies that the Trial Chamber shall not be guided, and much less bound, by the evaluations of the evidence by the Pre-Trial Chamber in the same case.
   The Trial Chamber that is trying the case may also be confronted with another trial bench’s findings or evaluation of evidence in another case (particularly in the context of the same situation), which can be relevant to the Trial Chamber’s assessment of the credibility of evidence before it. The question of status before the Trial Chamber of the evaluations and findings from another trial arose in Katanga and Ngudjolo Chui. In that case, the defence requested Trial Chamber II to admit excerpts from the Lubanga trial judgment containing Trial Chamber I’s discussion of the role of intermediaries P-143 and P-316 and their impact on the credibility of witnesses, given that the same intermediaries had had contact with witnesses in the Katanga and Ngudjolo Chui trial.
   Trial Chamber II held the Lubanga judgment to constitute ‘new material’ as an appropriate basis for reopening the oral proceedings, the issue of intermediaries relevant to the case, and the Lubanga Chamber’s findings probative and highly reliable (Katanga and Ngudjolo Chui, Decision on the request by the Defence for Germain Katanga seeking to admit excerpts from the judgment rendered in Lubanga, TC, 26 April 2012, paras 15-16). However, Trial Chamber II turned down the admission request, among others, on the ground that Trial Chamber I’s findings on the behaviour of the intermediaries towards witnesses not involved in the present case would not have ‘an appreciably more significant impact on the assessment … of the credibility of the witnesses concerned’ than the evidence already on the trial record (ibid., paras 16-20). Trial Chamber II assured that it did not artificially dissociate the role of intermediaries in the Lubanga case from their role in the present case (ibid., para. 15).
   However, the minority opinion to the Katanga trial judgment criticized the majority’s disregard of the Lubanga findings when assessing the credibility of key witnesses (P-28 and P-132) involved with intermediary P-143. The dissenting judge held that oral proceedings must have been reopened to introduce the relevant sections of the Lubanga judgment (Prosecutor v. Katanga, ICC T.Ch., Minority Opinion of Judge Christine Van den Wyngaert, Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3464-AnxI, 7 March 2014, paras 161-163). The Trial Chambers’ adjudicative autonomy vis-à-vis each other in part of admissibility rulings and the evaluation of evidence and the ‘entire proceedings’ does not require insulation from the findings on shared issues reached in adjacent cases. On the contrary, where such evaluations point to the material evidence missing from the record in the present case and to any circumstances relevant for the fair evaluation of the record, the presumption of innocence (Article 66) and the in dubio pro reo principle as its component (Prosecutor v. Bemba, ICC PT. Ch., Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 31) militate against an overly restrictive and isolationist approach in this regard.

Author: Sergey Vasiliev

Updated: 30 June 2016

[619] 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.
While Article 74(2) provides for the admissible scope and content of trial judgments, paragraph 5 establishes the requirements as to their form and reasoning, the number of decisions and the accommodation of dissenting views, and the delivery of judgments in open court.
   Some interlocutory decisions at trial may be delivered orally, but a trial judgment self-evidently should be rendered in writing. Thus the parties are enabled to exercise effectively their right to appeal the judgment under Article 81(1). For the same reason, the judgment shall contain ‘a full and reasoned statement of … findings on the evidence and conclusions’. This requirement is a rendition of the right to a reasoned opinion that is recognized in international human rights jurisprudence as a component of the right to a fair trial and, in particular, the right of the accused to have his or her conviction reviewed by a higher tribunal (Article 14(5) ICCPR; Article 2 Protocol No. 7, ECHR). The Human Rights Committee stated that ‘[t]he right to have one’s conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court’ (General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32, 23 August 2007, para. 49). Similarly, the European Court of Human Rights has recognized the obligation of courts to adequately state reasons for their judgments (albeit without requiring a detailed answer to every argument) as an integral element of the right of the accused to a fair trial under Article 6(1) ECHR and a principle ‘linked to the proper administration of justice’ (Van der Hurk v. Netherlands, 16034/90, 19 April 1994, para. 61; Hiro Balani v. Spain, 18064/91, 9 December 1994, para. 27; Ruiz Torija v. Spain, 18390/91, 9 December 1994, para. 29; Higgins et al. v. France, 20124/92, 19 February 1998, para. 42; Garcia Ruiz v. Spain, 30544/96, 21 January 1999, para. 26; Hadjianastassiou v. Greece, 12945/87, 16 December 1992, para. 33). By contrast, a judgement of the Appeals Chamber ‘shall state the reasons on which it is based’ (Article 83(4)), which appears to be a lower threshold than which applies to trial judgments. As the court of last resort, the Appeals Chamber need not necessarily provide a full statement of reasons.
   The Appeals Chamber is yet to pronounce itself on the meaning of a ‘full and reasoned statement’ in the context of appellate review of decisions pursuant to Article 74. Its jurisprudence thus far has discussed the requirement that rulings must be reasoned in relation to decisions of a Pre-Trial Chamber in the following terms: ‘it is essential that it [the decision – SV] indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the Pre-Trial Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion.’ (Prosecutor v. Lubanga, ICC A.Ch., Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”, ICC-01/04-01/06-773, 14 December 2006, para. 20). In another judgment, the Appeals Chamber observed that ‘[t]he reasons for a decision should be comprehensible from the decision itself. It is not sufficient for the Chamber to identify simply which filings were before it. The decision must set out which of the relevant facts and legal arguments that were before the Chamber were found to be persuasive for the determination it reached.’ (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”, 14 December 2006, para. 33). Although these rulings concern the reasoning in the decisions of Pre-Trial Chambers rather than Article 74 decisions, the same rationales, at minimum, apply to the latter decisions, if they are to meet the requirement of a full and reasoned statement of the findings on evidence and conclusions.
   In light of the grounds of appellate review (Articles 81(1) and 83(2)), a ‘full and reasoned statement’ of ‘findings on evidence and conclusions’ should be such as to persuade the Appeals Chamber that the Trial Chamber has not committed any errors of fact or errors of law materially affecting the decision, or other errors affecting fairness or reliability of the decision (Triffterer 2008, p. 1398). The final decision at trial that satisfies the parameters of Article 74(5) must state the applicable law and relevant facts, each established by the evidence on the trial record, and explain how the Chamber arrived at the legal conclusions based on the application of law to facts. Furthermore, the reasoning underlying the trial judgment must be presented in a way that allows a meaningful inquiry by the Appeals Chamber into the alleged errors and demonstrates the soundness of the Trial Chamber’s findings and conclusions. In other words, the statement of findings and conclusions must be complete, well-structured, comprehensible, transparent, and logical. At the same time, the judgment must not stray beyond the boundaries of factual and legal relevance set by the Pre-Trial Chamber’s decision on the confirmation of charges, as required by Article 74(2) and Regulation 55 discussed above.
   The first Article 74 judgments delivered thus far have departed from the template of the ad hoc tribunals’ judgments and adopted a structure and legal drafting technique distinct from those typically used by the ICC’s predecessors. All of them are highly detailed, heavily referenced, and fairly lengthy, especially considering that they deal with the cases involving limited charges against single accused. Thus, the Lubanga trial judgment is 593 pp. (excluding two separate and dissenting opinions); the Ngudjolo trial judgment 198 pp. (excluding a concurring opinion); and the Katanga trial judgment 881 pp. (including a 170-page minority opinion, but excluding a concurring opinion). One commentator’s concern that ‘new records in verbosity may well be set’ (Schabas 2010, p. 875) has rather not been confirmed, at least not in the sense that the length of the opinions was excessive and unjustified. In terms of discursive transparency and candour, the judicial style adopted by the ICC trial judges when setting out issues and analyzing the evidence, including its deficiencies and overall complexities of fact-finding, is comparable to that of the ad hoc tribunals.

Author: Sergey Vasiliev

Updated: 30 June 2016

Article 74(5) - The Trial Chamber shall issue one decision

[620] 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.Turning to the issue of the number of decisions and the accommodation of dissenting views, Article 74(5)—which should be read jointly with paragraph 3 providing for the judicial duty to attempt to achieve unanimity—states that ‘[t]he Trial Chamber shall issue one decision’ and ‘[w]hen there is no unanimity, the Trial Chamber’s decision shall contain the views of the majority and the minority.’ In contrast with the allowance made for the judges of the Appeals Chamber to ‘deliver a separate or dissenting opinion on a question of law’ (Article 83(4)), the trial judges are not explicitly authorized to append separate (concurring or dissenting) individually signed opinions to their judgment (see also Sluiter 2009, p. 511; but cf. Schabas 2010, p. 876). Moreover, whilst Article 83(4) does not feature the requirement of ‘one decision’ in respect of the Appeals Chamber’s judgment, Article 74(5) does envisage the issuance of a single decision containing the views of both the majority and the minority. On that basis, some scholars have argued that this provision ‘clearly intends to discourage the writing of separate and dissenting opinions on a purely individual basis and to prevent the publication of separate and dissenting voices some time after the publication of the judgment.’ (Sluiter 2009, p. 511).

However, in practice the trial judges have not adopted the interpretation of Article 74(5) as prescribing them to issue a single consolidated decision and precluding them from appending separate opinions to the trial judgment. The trial judgments issued thus far were all accompanied by individual opinions that do not qualify as ‘minority opinions’ within the meaning of Article 74(5) (Prosecutor v. Lubanga, ICC T.Ch., Separate opinion of Judge Adrian Fulford and Separate and Dissenting Opinion of Judge Odio Benito, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2014; Prosecutor v. Ngudjolo, ICC T. Ch., Concurring Opinion of Judge Christine Van den Wyngaert, Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-4, 18 December 2012; Prosecutor v. Katanga, ICC T. Ch., Concurring opinion of Judges Fatoumata Diarra and Bruno Cotte, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/07-3464-AnxII, 7 March 2014). On these instances, the conclusions on the question of guilt or innocence of the accused were reached unanimously, but the verdicts were still accompanied by individual opinions on discrete issues, delivered on the same date as the judgment and bearing the same individual number. Apparently, the judges did not construe the ‘one decision’ requirement restrictively, but chose to append any dissenting views on the majority’s reasoning as separate documents within the same filing, instead of including them as the ‘minority opinion’ within the body of the verdict itself. The implications of the requirement that where there is no unanimity the decision ‘shall contain the views of the majority and the minority’ are uncertain. The text allows several interpretations. First, the body of the trial judgment could include the minority position and attribute it to the judge. The example of this approach is provided by the judgment of the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia in Case 001, whereby a dissenting opinion of Judge Cartwright was incorporated into the text of the judgment itself (Kaing Guek Eav, (Case No.001/18-07-2007), ECCC T. Ch., Judgment, 26 July 2010, paras 397-399). Second, the trial judgment could blend both positions of the majority and the minority in a consolidated reasoning and present the latter as a set of counterarguments ultimately rejected by the court as erroneous or unconvincing (see e.g. Triffterer 2008, p. 1398: ‘different findings on the evidence and/or different conclusions ought to be mentioned within the decision of the majority, without, however, indicating any assignment to a specific judge.’). Third, the minority opinion may be stated separately from the majority opinion whilst still forming part of the same filing. For instance, Judge Van den Wyngaert’s ‘minority opinion’ in Katanga (which in fact amounts to a partially dissenting opinion) was appended to the ‘majority opinion’ (denominated as judgment). The dissent stated that ‘this constitutes the Minority Opinion and forms an integral part of Trial Chamber II’s judgment on the charges pursuant to Article 74’ (Prosecutor v. Katanga, ICC T. Ch., Minority Opinion of Judge Christine Van den Wyngaert, Jugement rendu en application de l’Article 74 du Statut, ICC-01/04-01/07-3464-AnxI, 7 March 2014, footnote 1). If the ‘minority opinion’ is attributed (the options 1 and 3 above), there is no principled difference between such an opinion and a traditional ‘dissenting opinion’. The arguments a contrario and by analogy based on textual differences between Articles 74(5) and 83(4) are a tenuous basis for claiming that the Rome Statute authorizes—or forbids—the Trial Chamber judges to append separate and dissenting opinions to Articles 74 decisions. The drafting history of the Rome Statute does not provide clarity in this respect either. The issue of allowing for individual opinions was sidelined at the decisive stages of negotiations in Rome. However, it did receive attention during the drafting of the ILC Statute of 1994. The draft’s Article 45(5) ruled out the possibility for the judges to append separate opinions to the final decision and contained the requirement of the ‘sole judgement’ (Draft Statute for an International Criminal Court, Report of the International Law Commission on the work of its forty-sixth session, 2 May—22 July 1994, Yearbook of the International Law Commission, 1994, vol. II (Part Two), UN Doc. A/CN.4/SER./1994/Add.1 (Part 2), at 59). The commentary on the Article justified this choice with reference to the prevailing view that allowing separate or dissenting opinions ‘could undermine the authority of the court and its judgements.’ (ibid.). Since the negotiation record of the ICC Statute contains no traces of similar debates, its travaux préparatoires are of a limited value in interpreting Article 74(5).

Author: Sergey Vasiliev

Updated: 30 June 2016

Article 74(5) - The decision or a summary thereof shall be delivered in open court.

[621] The decision or a summary thereof shall be delivered in open court.
While it is meant to serve an expressive function (see e.g. Schabas 2010, p. 877), the public delivery of the judgment, in the presence of the parties and participants, also constitutes an important aspect of the principle of a public hearing (Articles 64(7) and 67(1)) and is mandated by human rights law (Article 6(1) ECHR and Article 14 ICCPR). Thus, the ECtHR held that the pronouncement of judgements in public or making them public or available to those who established interest (depending on the special features of the proceedings) ensures ‘scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial’. It protects litigants against the ‘administration of justice in secret with no public scrutiny’ and contributes to the maintenance of confidence in the courts and ‘the achievement of a fair trial’ (Pretto et al. v. Italy, 7984/77, 8 December 1983, paras 20-27; Biryukov v. Russia, 14810/02, 17 January 2008, paras 30 and 45). A similar rationale was expressed by Judge Pikis when he held that the publication of ICC decisions is mandated by ‘the significance of judgments and decisions as a source of law, a fact expressly acknowledged by Article 21(2) of the Statute… Making the case law known is a condition of its applicability. Withholding publication of judgments/decisions is tantamount to secreting their existence, making the principles deriving therefrom inaccessible to the public (Prosecutor v. Kony et al., ICC A.Ch., Separate Opinion of Judge Georghios M. Pikis, Decision of the Appeals Chamber on the Unsealing of Documents, ICC-02/04-01/05-266, 4 February 2008, para. 9).
   The Reading out of the summary is intended to replace the pronouncement of the full text of a judgments, which will usually be of a considerable length. In principle, as has often been the practice at the ICTR, the summary may be pronounced before the drafting of the full text of the decision is completed and the judgment can be made public. This may be the way to give a notice of the verdict to the parties and remove the uncertainty about the outcome as early as possible (which is particularly important in case of an acquittal). However, the summary is an unofficial document that does not contain a ‘full and reasoned statement’ and does not enable the parties to prepare a notice of appeal. Furthermore, there is a risk that the reasons stated in the summary might diverge from the written reasons ultimately given in the judgment (Triffterer 2008, p. 1398). It is therefore advisable for the ICC to avoid—as it has done thus far —the unfortunate practice of other tribunals not to make full reasons available on the same day when the oral summary is delivered in open court.
   Indeed, the ICC Trial Chambers took care to publish both the decisions pursuant to Article 74 (in the original language) as well as the summaries on the day of the pronouncement of the judgment. According to the practice in the first cases, at the hearing for the delivery of the judgment, the President reads out the summary of the judgment in open court. Where the verdict is unanimous but accompanied by individual opinions, a note of that is made in the summary of the judgment but it does not include the summary of such opinions, and separate opinions are not read out (Prosecutor v. Lubanga, ICC T.Ch., Summary of the “Judgment pursuant to Article 74 of the Statute”, ICC-01/04-01/06-2843, 14 March 2012, para. 41; Prosecutor v. Ngudjolo, Résumé du jugement rendu en application de l’Article 74 du Statut dans l’affaire Le Procureur c. Mathieu Ngudjolo le 18 décembre 2012 par la Chambre de première instance II, T. Ch., 18 December 2012, para. 47). However, in case of a non-unanimous verdict, a minority opinion is incorporated into the summary that is read out by the Presiding Judge in open court (Prosecutor v. Katanga, Summary of Trial Chamber II’s Judgment of 7 March 2014, pursuant to Article 74 of the Statute in the case of The Prosecutor v. Germain Katanga, T. Ch., 7 March 2014, paras 54-60).
   Given that delayed issuance of judgments used to be a recurring problem in other tribunals (in particular, the ICTR), the time of the delivery of the decision and the admissible duration of deliberations are important issues raised by the consideration of Article 74(5). Rule 142(1) provides for the duty of the Trial Chamber to ‘inform all those who participated in the proceedings of the date on which the Trial Chamber will pronounce its decision’ and adds that ‘[t]he pronouncement shall be made within a reasonable period of time after the Trial Chamber has retired to deliberate’. The practical implications and enforceability of this rule are uncertain. There is a tension between the need for a carefully researched and drafted judgment satisfying the requirements of Article 74(5) and the interest in obtaining a prompt judgment, which is an aspect of a fair and expeditious trial and the right of the accused to be tried without undue delay. Since the optimal balance between these interests will vary by case and depend on the case’s complexity and any other contingencies encountered in the preparation of the judgment, setting a time limit in abstracto may be inexpedient. In the absence of a fixed time limit, what a ‘reasonable period of time’ amounts to is to be determined on a case-by-case basis.
   This issue generated debates when drafting the ICC Rules. Some delegations to the Preparatory Commission felt that defendants should not remain incarcerated indefinitely while waiting for the judgment. The Mexican delegation proposed setting a fixed time limit for the issuance of the decision on the charges (Lewis 2001, p. 551). However, for many delegations, the Mexico proposal could not be pursued due to the difficulty of agreeing on the reasonable time limit and uncertainty as to what sanctions or consequences, if any, were to attach to non-compliance with the deadline (ibid.). The delegates to the PrepComm benefitted from the recommendation by then ICTY President Jorda on this point, who strongly advised to refrain from imposing specific deadlines because that would have been unreasonable in the circumstances of international trials (ibid., pp. 551-552). The result was the current compromise solution that the Chamber is to notify the parties and participants of the date for the pronouncement of the decision in advance, and that such date is to be set ‘within a reasonable period of time’, rather than within a term fixed by law. This was hoped to ‘discipline’ the judges and put ‘moral pressure’ on them to deliver the final decision as soon as possible whilst at the same time allowing for reasonable flexibility (ibid., para. 522).

Cross-references:
1. Articles 76(4), 81(1), 83(2) and (4)
2. Rules 142(1), 144
3. Regulation 55

Doctrine:

Gideon Boas et al., International Criminal Law Practitioner Library Series. Volume III: International Criminal Procedure, Cambridge University Press, Cambridge, 2011, p. 377.
Håkan Friman et al. (Eds.), "Charges", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 431-432.
Nina Jørgensen/Alexander Zahar, "Deliberation, Dissent, Judgment", in Göran Sluiter et al.(Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1155.
P. Lewis, "Trial Procedure", in Roy S. Lee et al. (Eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational, Ardsley, New York, 2001, pp. 551, 553.
Christoph Safferling, International Criminal Procedure, Oxford University Press, Oxford, 2010, p. 522.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 875-877.
William A. Schabas, An Introduction to the International Criminal Court, Fourth Edition, Cambridge University Press, Cambridge, 2011, pp. 301, 319.
Göran Sluiter, "Separate and Dissenting Opinions", in Antonio Cassese et al. (Eds.), The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 511-512.
Göran Sluiter, "Unity and Division in Decision Making – The Law and Practice on Individual Opinions at the ICTY", in Bert Swart et al. (Eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University Press, Oxford, 2011, p. 203.
Otto Triffterer, "Article 74", in Otto Triffterer (Ed.), Commentary on the Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1387-1398.

Author: Sergey Vasiliev

Updated: 30 June 2016

[627] scope and extent of any damage, loss and injury
The concepts “damage, loss and injury”, as set forth in Article 75(1), are synonymous with ”harm” (see rule 85(a), and Lubanga, ICC A.Ch., Judgment of the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation’, ICC-01/04-01/06-1432, 11 July 2008, para. 31). It is not necessary that he harm is direct, but it must be personal to the victim, and it can consist of material, physical or psychological harm (para. 32). Nonetheless, in its decision on reparations the Lubanga Trial Chamber sometimes placed the four terms side by side (Lubanga, ICC T.Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 243), thus confusing the terminology. Whether the harm should be of a recoverable nature was not addressed by the Chambers, although the Appeals Chamber noted with respect to compensation that some forms of damage are “essentially unquantifiable in financial terms” (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, Annex A, para. 40). For a general discussion, see McCarthy pp. 100-101).
The Appeals Chamber stressed that the Trial Chamber must clearly identify the harm to direct and indirect victims caused by the crimes in the case at hand and form part of the reparation order (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, paras 181 and 184). Amending the Trial Chambers order in Lubanga (para. 191 and Annex A, para. 58), the Appeals Chamber held that the harm of direct victims consisted of: a) physical injury and trauma; b) psychological trauma and the development of psychological disorders (suicidal tendencies, etcetera); c) interruption and loss of schooling; d) separation from families; e) exposure to an environment of violence and fear; f) difficulties socializing within their families and communities; g) difficulties in controlling aggressive impulses; and h) the non-development of “civilian life skills” resulting in the victim being at a disadvantage, particularly as regards employment. Indirect victims suffered harm such as: a) psychological suffering experiences as a result of the sudden loss of a family member; b) material deprivation that accompanies the loss of family members’ contributions; c) loss, injury or damage suffered by the intervening person from attempting to prevent the child from being further harmed as a result of a relevant crime; and d) psychological and/or material sufferings as a result of aggressiveness on the part of former child soldiers relocated to their families and communities.

Causation
In Lubanga, the Trial Chamber concluded that that there must be a causal link between the relevant crimes and the “damage, loss and injury” which form the basis of the reparation claim (Lubanga, ICC T. Ch., ICC-01/04- 01/06-2904, 7 August 2012, para. 247). But there was some ambiguity as to whether the Chamber required the harm to be linked to the crimes of which the accused was actually convicted. It referred more neutrally to the type of offences concerned (“the crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in the hostilities” paras. 247 and 249). Further, the Chamber stated that the relevant standard of causation needs to reflect and balance the divergent interests and rights of the victims and convicted person (para. 250). Nonetheless, the linkage between the harm and the crimes of which the accused was convicted was established by a “but/for” relationship between the crime and the harm (para. 250). Instead of requiring direct harm or immediate effects of the crimes, the Chamber concluded that a looser standard of “proximate cause” should be applied (para. 249).
The Appeals Chamber considered that the casual link between the crime and the harm for the purposes of reparations is to be determined in light of the specificities of the case (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 80). It upheld the but/for-relationship and “proximate cause”-standard of causation (paras 124-129 and Annex A, para. 59).

Author: Håkan Friman

Updated: 30 June 2016

Article 75(2)

[628] 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.
Reparation orders and awards
Article 75(2) refers to an order of reparations as well as an award for reparations to be made through the Trust Fund for Victims. The terms are intended to be synonymous as they are in the French and Spanish versions of the Statute.
An order of reparations may be made against a person only once he or she is convicted. The post-conviction nature of the reparations proceedings follows also from Article 76(3).
   In Lubanga, the Appeals Chamber established that a reparation order must contain, at a minimum, five essential elements: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both, pursuant to rules 97(1) and 98; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that are considered appropriate based on the specific circumstances of the specific case at hand; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out criteria of eligibility based upon the link between the harm suffered by the victims and the crimes for which the person was convicted (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 1).

a) Direct orders and awards through the Trust Fund
In Lubanga, the Trial Chamber was drawing extensively on the Trust Fund for Victim to make determinations and award reparations, but also to make use of funds available to the Fund from its own resources (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012). Instead of examining individual applications for reparations, the Chamber endorsed av implementation plan suggested by the Trust Fund (paras 281-283 and 289).
   This caused the Appeal Chamber to settle a number of questions with respect to the responsibilities of the Trial Chamber and the relationship to the Trust Fund and its various mandates. The fundamental principle was that reparations, irrespective of whether they are ordered directly or through the Trust Fund, must be directed against the convicted person (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, paras 1 and 69-76). Although the Trial Chamber’s decision in Lubanga did not explicitly award reparations to any victim, the Appeals Chamber found that it should be deemed to be an order for reparations (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, para. 51). Decisive for this determination was the fact that apart from establishing principles, the decision also established procedures to be applied and tasked the Trust Fund for Victims to carry out the implementation which could only be done based upon a reparation order (paras 51-64).
   As long as the Trial Chamber concludes that the convicted person is liable for the reparations awarded, identifies the harms to direct and indirect victims and set the criteria for the assessment, as well as identifies the most appropriate modalities of reparations (based upon the specific circumstances), the Chamber may delegate to the Trust Fund to assess the harm suffered by the victims and decide the nature and size of the awards (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, paras 101, 181-184 and 200-203). It is possible that not all the modalities will ultimately be reflected in the actual awards and, if so, the Trust Fund must explain why (para. 201 and Annex A, paras 68-70). In addition, the order must identify the victims eligible to benefit from reparations or set out criteria of eligibility (paras 205 and 210-215). The indigence of the convicted person is irrelevant for the liability (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, paras 102-15; compare ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, paras 269-271). Moreover, the so-called “other resources” of the Trust Fund fall solely under the control of the Fund and, thus, are not subject to an order by the Court, although the Fund might voluntarily make use of these resources without exonerating the convicted person from liability (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, paras 4-5 and 106-117; compare ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, paras 270-273). These “other resources” may also be utilized for victims that fall outside of the Court’s reparations award (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, para. 215).

b) Individual and collective reparations
While Article 75(2) distinguishes between orders directed against the convicted person and awards made through the Trust Fund for Victims, rule 97(1) makes clear that reparations may be awarded on an individualized basis, or on a collective one, or by a combination of the two. Individual and collective reparations are not mutually exclusive and may be awarded concurrently (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 220, and ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, Annex A, para. 33).
   According to rule 98(1), individual awards for reparations shall be made directly against the convicted person. But under certain conditions the Court may, under rule 98(2), order that such awards be deposited with the Trust Fund. In addition, rule 98(3) allows collective awards against a convicted person be made through the Trust Fund. A collective approach was preferred in Lubanga to ensure that reparations reach those victims who were currently unidentified (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 219). In case of collective awards only, the Appeals Chambers ageed that the Trial Chamber is not required to rule on the merits of the individual requests, but instead– if applicable – to deny, as a category, individual awards (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 152). Collective reparations may be awarded also without an application to that effect (para. 151). Individual claims may be disregarded (para. 7).
   Collective awards may be motivated by a considerable number of victims, particularly when only a limited number of individuals have applied for reparations (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 153). Further, both the Trial Chamber and the Appeals Chamber held that reparations need to support programmes that are self-sustaining so that they can be beneficial over an extended period of time (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 246, and ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, Annex A, para. 48). For example, if pensions are paid they should be periodic rather than paid by way of a lump payment.

Author: Håkan Friman

Updated: 30 June 2016

Article 75(3)

[629] 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.
a) Reparation proceedings
The procedures before a Trial Chamber leading to the issuance of an order for reparations are regulated in particular by Articles 75 and 76(3) of the Statute and rules 94, 95, 97 and 143 of the RPE. The first part is the establishment of principles relating to reparations to, or in respect of, victims, which concludes with the issuance of an order for reparations under Article 75(2) or a decision not to award reparations. The second part of the proceedings consists of the implementation phase, which is regulated primarily by Article 75(2) and rule 98 (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, paras 54-55).
   The reparations proceedings are considered to be distinct and not forming part of the trial strictu sensu, which means, for example, that a Chamber different from the Trial Chamber convicting the accused may be constituted (Prosecutor v. Katanga, ICC Pres., Decision on conclusion of term of office of Judges Bruno Cotte and Fatoumata Dembele Diarra, ICC-01/04-01/07-3468-AnxI (2014/PRES/115), 16 April 2014). Similarly, the Lubanga Trial Chamber concluded that a different Chamber could monitor and supervise reparations to be awarded through the Trust Fund for Victims (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, paras 260-262). This solution was upheld by the Appeals Chamber, which also devised a more detailed scheme for issues to be adjudicated by the Chamber (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, paras 167, 232-236 and Annex A, paras 75-81).
   An important feature of the reparations proceedings is that the victims are parties and not merely participants to the proceedings (e.g. Zappalà, 2010, p. 157, and Friman, 2009, p. 496). This is also true with respect to the appeals stage (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, para. 67).

b) Representations
In seeking inspiration regarding the principles to be established, the Trial Chambers have reached out within and outside of the Court. In Lubanga, written instructions were issued by e-mail of 16 March 2011 whereby the Chamber requested a consolidated and updated joint filing on reparations from the Trust Fund for Victims and the Registry (Prosecutor v. Lubanga, ICC TFV, Public Redacted Version of ICC-01/04-01/06-2803-Conf-Exp-Trust Fund for Victims' First Report on Reparations, ICC-01/04-01/06, 1 September 2011).
   Moreover, five organizations were granted leave to make written representations concerning reparations (Prosecutor v. Lubanga, ICC T. Ch., Decision granting leave to make representations in the reparations proceedings, ICC-01/04-01/06-2870, 20 April 2012). The defence argued that such intervention was only possible under rule 103 of the RPE (amicus curiae), but the Trial Chamber concluded that the proceedings set out in Article 75(3) are distinct from those of rule 103(2)-(3) and they require the Court to take representations that it has received into account (paras 11 and 20).
   In the appeals process, however, the Appeals Chamber opted to rely upon Article 103 (Lubanga, ICC A. Ch., ICC-01/04-01/06-2953, 14 December 2012, para. 77). Once submitted, the Appeals Chamber rejected the various requests to submit amicus curiae observations (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, paras 247-251).

c) Requests for reparations and other procedural issues
Rule 94 of the RPE contains provisions on the procedure to follow in case of a victim’s request for reparations. According to the rule, the request shall contain, inter alia, the identity and address of the claimant, a description of the injury, loss or harm, and information on concerning the incident and, if possible, the person responsible. These requirements may be too onerous considering the actual situation, however, and the Court has accepted different means of identification, including official or unofficial identification documents or a statement signed by two credible witnesses (Prosecutor v. Lubanga, ICC T. Ch., Decision on victims’ participation, ICC-01/04-01/06-1119, 18 January 2008, paras 87-88, and Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 198).
   Rule 95 sets out the procedure when the Court intends to proceed with awarding reparations on its own motion. The threshold for the application of this rule (“exceptional circumstances”) is different from that applicable to collective reparations (“more appropriate”) (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 148 c.).
   The Registry is tasked with providing a standard form for reparations claims as well as to assist the victims and make certain inquiries (regulation 88). In Katanga, the Registry was requested to assist in clarifying and updating the requests for reparations by contacting the victims and report back to the Trial Chamber (including information on the harm suffered and the reparations sought) (Prosecutor v. Katanga, ICC T. Ch., Order instructing the Registry to report on applications for reparations, ICC-01/04-01/07-3508, 27 August 2014).
   The Lubanga Trial Chamber stressed that the victims, together with their families and communities, should be able to participate throughout the reparations process and receive adequate support to make their participation substantive and effective (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 203). The Registry was tasked with deciding the most appropriate form of participation in the proceedings (para. 268). Moreover, the Chamber addressed outreach activities, communication, and consultations (paras 205-206).
   In the same case, the OPCV was designated to act as the legal representative of unrepresented applicants for reparations until their status is determined or until the Registrar arranges a legal representative to act on their behalf; and to represent the interests of victims who have not submitted applications but who may benefit from an award for collective reparations, pursuant to Rules 97 and 98 of the RPE (Prosecutor v. Lubanga, ICC T. Ch., Decision on the OPCV's request to participate in the reparations proceedings, ICC-01/04-01/06-2858, 5 April 2012).

d) Standard and burden of proof
No agreement on rules on evidence with respect to reparations could be reached in the negotiations of the RPE (Friman and Lewis, pp. 484-486). The Lubanga Trial Chamber found that the standard of “a balance of probabilities” was sufficient and proportionate concerning an order directed against the convicted person (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 253). On the other hand, the Trial Chamber considered that no such standard was required when reparations are awarded through the Trust Fund and instead “a wholly flexible approach to determining factual matters is appropriate” (para. 254).
   The Appeal Chamber disagreed and established that the “balance of probabilities”-standard applies in both instances (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 83 and Annex A, para. 22). The Appeals Chamber added that the applicant shall provide sufficient proof of the causal link between the crime and the harm suffered, based on the specific circumstances of the case (para. 81).

e) Expert assistance
According to rule 97(2), the Court may appoint experts to assist it in determining the scope, extent of any damage, loss or injury to or in respect of victims, and to suggest various options concerning the types and modalities of reparations. The Lubanga Trial Chamber strongly recommended that a multidisciplinary team of experts be retained to provide assistance and delegated the issue to the Trust Fund (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, paras. 263-265). The Appeals Chamber stressed that expert assistance could be obtained both before the reparation order, and after (i.e. at the implementation stage) (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, para. 178).

f) Publicity
The responsibility of the Registry to give publicity to the reparations proceedings is laid down in rule 96. While the rule is primarily aimed at publicity to ensure that victims could file claims and take part in the proceedings (Friman and Lewis, p. 482), the Lubanga Trial Chamber found it applicable also to publicity of the principles that the Chamber had established (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 258; see also ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, Annex A, paras 51-52).

Author: Håkan Friman

Updated: 30 June 2016

Article 75(4)

[630] 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.
a) Seeking state cooperation to give effect to an order
Unlike Article 75(5) which deals with enforcement of an issued reparation order, Article 75(4) empowers the Court to seek measures in order to secure the enforcement of a future reparation order. The provision refers to international cooperation measures under Article 93(1), which includes the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture (Article 93(1)(k)). Article 75(4) explicitly apply only subsequent to the conviction of the perpetrator concerned by the Court (and, arguably, only to convictions concerning a core crime under the Court’s jurisdiction). The assistance by States Parties, and invited non-States Parties that commit themselves to cooperate (Article 87(5)(a)), shall be timely, effective and provided at the earliest possible stage of the proceedings (ASP Resolution ICC-ASP/10/Res.3 of 20 December 2011).
The Lubanga Trial Chamber, which did not distinguish between Article 75(4) and (5), generally noted the identification and freezing of any assets of the convicted person as a fundamental element in securing effective reparations, and handed the issue over to the Registry and the Trust Fund with the recommendation to establish standard operating procedures, confidentiality protocols and financial reporting obligations (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, paras 277 and 280). The Appeals Chamber merely recalled the States Parties’ obligation to cooperate (Lubanga, ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, Annex A, para. 50). The Chambers did not elaborate on to what extent, if any, issues concerning international cooperation and enforcements would fall under the (newly constituted judicial) Chamber’s remaining monitoring and oversight functions; the reference in the Chamber’s “conclusions” is limited to functions in accordance with Article 64(2) and (3)(a) appears to exclude such issues.

b) Interim protective measures
In this context, protective measures under Article 57(3)(e) should also be noted since the provision does also encompass measures to secure future forfeiture “for the ultimate benefit of victims”. Clearly, forfeiture as a penalty (Article 77(2)(b)) may benefit victims through an order by the Court. In accordance with Article 79(2), that money or other property collected through fines or forfeiture shall be transferred to the Trust Fund. But the question has arisen as to whether protective measures under Article 57(3)(e) may be ordered by the Pre-Trial Chamber for the direct purpose of a future reparation order. In Kenyatta, the majority of the Trial Chamber answered this question in the affirmative (Prosecutor v. Kenyatta, ICC T. Ch., Decision on the implementation of the request to freeze assets, ICC-01/09-02/11-931, 8 July 2014, para. 12). One judge dissented, however, and found that protective measures to secure a future reparation order is possible only post-conviction in accordance with Article 75(4) (Dissenting opinion of Judge Henderson, para. 3). Although less explicit, earlier Pre-Trial Chamber decisions have also made the connection between the protective measures under Article 57(3)(e) and future reparations awards (e.g. Prosecutor v. Lubanga, ICC PT. Ch., Request to the Democratic Republic of the Congo for the purpose of obtaining the identification, tracing, freezing and seizure of property and assets belonging to Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-22, 9 March 2006, and Prosecutor v. Bemba, ICC PT. Ch., Decision et demande en vue d’obtenir l’identification,la localization, le gel et la saisie des biens et avoirs adressées a la République portugaise, ICC-01/05-01/08-8, 27 May 2008).

Author: Håkan Friman

Updated: 30 June 2016

Article 75(5)

[631] 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.
Without effective enforcement, the reparation awards will be merely symbolic. Enforcement of fines and forfeiture orders are regulated in Article 109 and the term ‘give effect to’ (instead of ‘enforce’) is used in order to set forth the material obligation but leave the States with discretion concerning the procedures for doing so (Draft Report of the Working Group on Enforcement, 4 July 1998, A/CONF.183/C.1/WGE/L.13 p. 5). Article 75(5) provides the equivalent obligation of States Parties to “give effect to” a decision on reparations “as if the provisions of Article 109 were applicable”.
Further directions are given in the Rules. Rule 217 provides for the role of the Presidency in seeking cooperation and enforcement and rule 218 the content of relevant orders to allow for their effective enforcement. The reparations ordered may not be modified by the enforcing State according to rule 219. The Presidency is responsible for the disposition or allocation of property or assets realized through the realization of a Court order (rule 221) and it may assist with service of notifications and other matters in furtherance of the enforcement (rule 222). The Presidency shall establish an enforcement unit (regulation 113) and the Registry may be enlisted to assist with certain tasks, which may include ongoing monitoring of a sentenced person’s financial situation (regulations 116-117)
The Lubanga Trial Chamber merely noted that in order for a reparations award to have effect, the Court “requires the cooperation of States Parties and non-states parties” and in particular close cooperation with the “DRC local government” (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 278).

Author: Håkan Friman

Updated: 30 June 2016

Article 75(6)

[632] 6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.
In Lubanga, the Chambers underlined that the decision was not intended to affect the rights of victims to reparations in other cases, whether before the ICC or national, regional or other international bodies (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 181, and ICC A. Ch., ICC-01/04-01/06-3129, 3 March 2015, Annex A, para. 4). Although decisions by other national or international bodies do not affect the rights to reparations under Article 75, the Court may take other orders and awards into account in order to guarantee that reparations are not applied unfairly or in discriminatory manner (Lubanga, ICC T. Ch., ICC-01/04-01/06-2904, 7 August 2012, para. 201).

Cross-references:
1. Rules 94, 95, 96 and 97
2. Regulations 38, 56 and 88

Doctrine:

Anne-Marie de Brouwer/Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford 2013.
David Donat-Cattin, "Article 75" in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1399-1412.
Eva Dwertmann, The Reparation System of the International Criminal Court, Martinus Nijhoff Publishers, Leiden/Boston, 2010.
Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict, Cambridge University Press, Cambridge, 2012.
Carla Ferstman et. al (Eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making, Martinus Nijhoff Publishers, 2009.
Håkan Friman, "The International Criminal Court and Participation of Victims: A Third Party to the Proceedings?", Leiden Journal of International Law, vol. 22, 2009, pp. 485-500.
Håkan Friman/Peter Lewis, Reparations to Victims, in Roy S Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 479-491.
Carolyn Hoyle/Leila Ullrich, "New Court, New Justice?", Journal of International Criminal Justice, vol. 12, no. 4, 2014, pp. 681-703.
Sara Kendall/Sarah Nouwen, "Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood", Law and Contemporary Problems, vol. 76, no. 3 and 4, 2013, pp. 235-262.
Conor McCarthy, Reparations and Victim Support in the International Criminal Court, Cambridge University Press, Cambridge, 2012.
Luke Moffett, Justice for Victims before the International Criminal Court, Routledge, London/New York, 2014.
Christopher Muttukumaru, "Reparation to Victims", in Roy S Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 262-270.
Juan Carlos Ochoa, The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations, Martinus Nijhoff Publishers, 2013.
Valentina Spiga, "No Redress without Justice: Victims and International Criminal Law", Journal of International Criminal Justice, vol. 10, no. 5, 2012, pp. 1377-1394.
Carsten Stahn, "Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures of Reparation", European Journal of International Law: Talk!, 7 April 2015.
Salvatore Zappalà, "The Rights of Victims v. the Rights of the Accused", Journal of International Criminal Justice, vol. 8, no. 1, 2010, pp. 137-164.
Liesbeth Zegveld, "Victims’ Reparations Claims and International Criminal Courts", Journal of International Criminal Justice, vol. 8, no. 1, 2010, pp. 79-111.

Author: Håkan Friman

Updated: 30 June 2016

Article 76

[633] Sentencing
General Remarks
Sentencing is one of the most important stages of the trial proceedings and marks the culmination of the trial. It is a logical ending to the truth-finding task that parties to the proceedings have embarked upon with the view of determining the personal consequences that a convicted person would bear for committing the crimes within the jurisdiction of the International Criminal Court (ICC). It lies at the core of the entire functioning of the criminal justice system, be it national or international. Without the final stage of sentencing, the criminal justice process would make little sense, as it is at this stage that the goals of punishment are being achieved.
   Article 76, the final provision of Part VI of the Rome Statute, provides for sentencing following conviction. Since its inception, the ICC has sentenced four individuals in the Lubanga, Katanga, Bemba and Al Mahdi cases [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012 (Lubanga Sentencing Decision); Prosecutor v. Katanga, ICC T. Ch. II, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01-07-3484, ICC-01/04-01/07-3437, 23 May 2014 (Katanga Sentencing Decision); Prosecutor v. Bemba, ICC T. Ch. III, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01-05-01/08-3399, 21 June 2016 (Bemba Sentencing Decision); Prosecutor v. Al Mahdi, ICC T. Ch. VIII, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016 (Al Mahdi Sentencing Decision)]. If an accused is convicted, the Article prescribes a distinct sentencing phase following the trial, where the appropriate sentence is determined. In determining this sentence, the Trial Chamber should take into consideration the evidence presented and the submissions made during the trial that are of relevance to sentencing. The Lubanga, Katanga and Bemba cases all saw the conduction of a separate sentencing hearing following conviction. In the Al Mahdi case, due to entering a guilty plea, which triggers the application of Article 65 of the Statute, the parties reached an agreement at the status conference, in which they were unanimous that the judgment and sentence would be rendered simultaneously in the event of conviction [Al Mahdi Sentencing Decision, 27 September 2016, paras 5-7].

Preparatory works
The drafting history of Article 76 of the Rome Statute can be dated back to the early 1990s. The first mention of a sentencing provision appeared in Draft Article 52 in the Report of the Working Group on a draft statute for an international criminal court, which was part of the 1993 Report of the International Law Commission. This draft statute envisioned a separate sentencing hearing that is separate from the trial. The draft provision imposed an obligation upon the Court to hear submissions from the prosecution and the defence and any evidence it considered relevant for sentencing. However, the commentary to the draft provision pointed out that the accused’s rights at this sentencing stage may not be as extensive as at the trial stage (for example, the right to cross-examine witnesses may not be available). It was further recommended that a sentencing hearing, which accompanies the judgment in a given case, should be in open court [Yearbook of the International Law Commission, 1993, vol. II (Part Two), document A/CN.4/SER.A/1993/add.1 (Part 2), pp. 124-5].
   In 1994, the International Law Commission presented a further draft titled the Draft Code of Crimes against the Peace and Security of Mankind, which was included in the Report of the International Law Commission. Draft Article 46 of this draft statute, in addition to maintaining the preference for a separate sentencing hearing, imposed an obligation on the Trial Chamber to consider factors such as the gravity of the crime and the individual circumstances of the convicted person, when imposing the sentence. Moreover, in its commentary on Draft Article 46(2), the drafters made reference to the Trial Chamber having regard to factors such as “the degree of punishment commensurate with the crime in accordance with the general principle of proportionality” when deciding on an appropriate sentence [Yearbook of the International Law Commission, 1994, vol. II (Part Two), document A/CN.4/SER.A/1994/add.1 (Part 2), 2 May – 22 July 1994, p. 60].
   In 1995, while the Report of the Ad Hoc Committee on the Establishment of an International Criminal Court (1995) did make reference to various matters connected to sentencing, this particular provision on sentencing was not discussed [Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, GAOR 50th Session Sup No 22 UN Doc A/50/22, 7 September 1995] However, the Report of the Preparatory Committee on the Establishment of an International Criminal Court (1996), in its Draft Article 46, reaffirmed the preference for the bifurcation of proceedings by proposing a further (pre-sentencing) hearing following conviction in order to hear any evidence relevant to sentencing. The draft further elaborated on the obligation to consider the gravity of the crime and the individual circumstances of the convicted person, including aggravating, extenuating and mitigating circumstances. Additionally, the Draft Article laid out the manner in which the parties at the hearing should ordinarily present their submissions and suggested that the Trial Chamber should indicate whether multiple sentences should be served consecutively or concurrently. This was also the first instance in its drafting history where the drafters proposed that the sentence was to be pronounced in the presence of the convicted individual [Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR 51st Session Supp No 22A UN Doc A/51/22 (1996), 13 September 1996, p. 226].
    In 1997, this particular provision on sentencing was not considered by the Preparatory Committee and its working groups during its sessions held in early December (Preparatory Committee on the Establishment of an International Criminal Court 1-12 December 2007). However, the Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands (Zutphen Draft), in Draft Article 67 proposed several alterations to the original ILC and Preparatory Committee drafts. The Zutphen Draft also maintained the strong presumption in favour of a separate sentencing hearing. However, the drafters viewed it as being appropriate to strike out the references to the Trial Chamber’s obligation to take into account factors such as gravity of the crime and the individual circumstances of the convicted individual, as they considered these provisions to have already been included under more appropriate articles elsewhere in the Statute. The Zutphen Draft did elucidate however that submissions made during the sentencing hearing ‘may go to aggravating, extenuating or mitigating evidence, or the issue of rehabilitation’. It further retained the sections from the 1996 Preparatory Committee draft, on the manner in which the parties should ordinarily present submissions at the sentencing hearing, and on pronouncement of sentence in public and in the presence of the convicted individual [UNGA, Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands’ (4th February 1998) UN Doc A/AC.249/1998/L.13, pp. 124-5].
   A further version of the draft statute was set out in the Report of the Preparatory Committee on the Establishment of an International Criminal Court (14 April 1998) that was presented at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court held in Rome, Italy from 15th June to 17th July 1998. In it, Draft Article 74 referred to sentencing and bore many similarities to Article 76 as it appears in the Rome Statute today. Here, Draft Article 74(1) mirrored article 76(1) of the Rome Statute. Except for the wording, the subsequent paragraphs of the Draft Article were identical to Articles 76(2), 76(3) and 76(4) in the Rome Statute in terms of substance. In terms of Draft Article 74(4), the part of the sentence ‘and in the presence of the accused’ was included within square brackets, as at this point it was yet unclear as to whether in absentia trials would be permitted at the ICC [Report of the Preparatory Committee on the Establishment of an International Criminal Court (14th April 1998) UN Doc A/CONF.183/2, p. 62]. The final version of Article 76 of the Rome Statute as it stands today, was transmitted by the Committee of the Whole, to the Diplomatic Conference and was adopted on 18th July 1998.

Author:
Iryna Marchuk and B. Aloka Wanigasuriya

Updated:
28 March 2017

Article 76(1)

[634] 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.
In the event that an accused individual is convicted, the Trial Chamber is to determine an appropriate sentence to be imposed on the convicted individual. Article 76(1) provides that the Trial Chamber should consider the ‘appropriate sentence’ to be imposed and that in making this decision, ‘take into account the evidence presented and submissions made during the trial that are relevant to the sentence’. This Article should be read together with Article 77 (on applicable penalties). It should additionally be read together with Article 78 of the Statute and Rule 145 of the Rules of Procedure and Evidence (RPE) governing the determination of the sentence that require the Chamber to take into account “the gravity of the crime and the individual circumstances of the convicted person, as well as any mitigating and aggravating circumstances”.
The pivotal Lubanga decision on sentencing provides valuable insights into how the evidence presented during trial and additional submissions during a separate sentencing hearing were utilized for the purposes of determining the appropriate sentence. It is instructive that while considering the sentence to be imposed upon Thomas Lubanga Dyilo for his role as a co-perpetrator on the charges of “conscripting, and enlisting children under the age of fifteen years and using them to actively participate in hostilities”, the judges studied the practices of the Special Court for Sierra Leone (SCSL) with respect to its sentencing practices regarding the use of child soldiers [Lubanga Sentencing Decision, 10 July 2012, paras 12-15]. The developed jurisprudence of the SCSL provides a detailed treatment of the war crime of the use of child soldiers in hostilities and lays a good foundation for determining which evidence is relevant for determining the appropriate sentence. While not being bound by the SCSL’s sentencing practices, the ICC Trial Chamber took note of the high sentences imposed upon two RUF rebel commanders, 50 and 35 years of imprisonment respectively, in light of the gravity of the crime that manifested itself in the use of child soldiers on a large scale and with a significant degree of brutality [Lubanga Sentencing Decision, 10 July 2012, paras 12-13]. In the subsequent sentencing decisions, the ICC judges, if necessary, referred to the jurisprudence of the ad hoc tribunals with respect to their sentencing practices. However, the ICC Appeals Chamber also emphasized that sentencing practices of other tribunals cannot be instructive or binding for the ICC that has to follow its own statutory framework and rules [Prosecutor v. Lubanga, ICC A. Ch, Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statue, ICC-01/04-01/06-3122, 1 December 2014, para. 77].

a) Evidence pertinent to the gravity of a crime for the purposes of sentencing
It is helpful to look at the evidence adduced by the parties to the proceedings in order to understand how the ICC judges assess the gravity of the crime for the purposes of sentencing. Despite the limited number of sentencing decisions that have been rendered by the ICC to date, the crimes that the convicted persons were charged with have spanned from the use of child soldiers to the destruction of cultural property, and have all been different in terms of the gravity. When assessing the evidence pertinent to the “gravity of crime” vis-à-vis factors relevant to sentencing provided for in Rule 145(1)(c) of the RPE, the Trial Chamber in Lubanga paid particular attention to expert evidence on the psychological impact of child soldiering [Lubanga Sentencing Decision, 10 July 2012, paras 39-42]. In its determination of the gravity requirement, the judges attributed considerable weight to the evidence of the widespread involvement of children in hostilities [Lubanga Sentencing Decision, 10 July 2012, paras 49-50]. The judges also treated Lubanga’s mature age as well as his educational background in psychology as factors that amplified the gravity of the crimes, since he should have understood the seriousness of the crimes of which he had been convicted [Lubanga Sentencing Decision, 10 July 2012, paras 54-56].
   In Katanga, the evidence, which was submitted to demonstrate the gravity requirement, concerned a wider spectrum of crimes in comparison to Lubanga and pertained to the crimes of murder as a war crime and a crime against humanity, and those of attacks against civilians, destruction and pillaging as war crimes [Katanga Sentencing Decision, 23 May 2014, para. 44]. The judges concluded that the gravity requirement was present by examining the evidence on (1) the violence and the scale of crimes committed in the village of Bogoro [Katanga Sentencing Decision, 23 May 2014, paras 46- 52]; (2) the discriminatory dimension of the attack, which targeted the civilians on the basis of their ethnic background [Katanga Sentencing Decision, 23 May 2014, paras 53-54]; and (3) the post-attack situation in Bogoro and the harm caused to victims and their relatives [Katanga Sentencing Decision, 23 May 2014, paras 55-60]. In Katanga, the judges made an important distinction between the crimes against persons and the crimes against property, emphasizing the inherent difference between these two categories of crimes in terms of their gravity [Katanga Sentencing Decision, 23 May 2014, para. 147].
   This distinction was further articulated in the Al Mahdi case, in which the accused was charged solely with a crime against property. This case has garnered much attention, as it is the first time in the history of international criminal courts where a person was convicted for the destruction of cultural heritage. The evidence that the judges assessed to determine the gravity of crime for the purposes of sentencing included the extent of the damage caused to the cultural heritage sites, the nature of the unlawful behavior and circumstances during which the crime took place [Al Mahdi Sentencing Decision, 27 September 2016, para. 76]. The judges looked into the symbolic and emotional value assigned to the destroyed cultural sites by local inhabitants, people of Mali and the international community, as well as religious motives entertained by the perpetrators of the crime [Al Mahdi Sentencing Decision, 27 September 2016, paras 79-81].
   The sentencing decision in Bemba dealt with the evidence pertinent to the gravity of the war crimes of rape and pillaging. The Trial Chamber found that the evidence on the substantial number of victims as well as the severe degree of damage caused to the victims and communities in the Central African Republic (CAR) attested to the serious gravity of the crime [Bemba Sentencing Decision, 21 June 2016, para. 40]. Here, the judges reached the same conclusion with respect to the crime of pillaging given the substantial number of victims and its impact on their lives [Bemba Sentencing Decision, 21 June 2016, para. 51].

b) Evidence pertinent to the convicted person’s degree of participation and culpability
The sentence to be imposed upon the convicted person should not only be proportionate to the crime but should also reflect the culpability of the convicted person (Art. 81(2)(a), Rome Statute; Rule 145(1)(a) of the RPE). In order to assess the culpability of an individual, it is necessary to examine the person’s degree of participation in a crime and the accompanying mens rea. While assessing the evidence on Lubanga’s mens rea, the Trial Chamber was not convinced that the accused entertained the direct intent (dolus directus of the first degree) with respect to enlistment, conscription and use of children under the age of fifteen, but instead concluded that he “was aware, in the ordinary course of events, this would occur” [Lubanga Sentencing Decision, 10 July 2012, para. 52]. As to the degree of Lubanga’s participation, the evidence corroborated his role as a co-perpetrator that requires an essential contribution to the common plan [Lubanga Sentencing Decision, 10 July 2012, para. 52]. It has been long speculated in academic circles whether principal and accessory modes of liability provided for in Article 25 of the Rome Statute were arranged in a particular hierarchy of blameworthiness and if so, how this will be reflected in the scale of punishments at the sentencing stage. This question was finally answered in Katanga and Bemba where the judges held that the distinction between various modes of liability neither implied a hierarchy of blameworthiness nor a gradation of punishment [Katanga Sentencing Decision, 23 May 2014, para. 61, Bemba Sentencing Decision, 21 June 2016, para. 16]. The judges merely stated that the convicted person’s degree of participation and mens rea must be assessed in concreto on the basis of the factual and legal findings [Katanga Sentencing Decision, 23 May 2014, para. 61, Bemba Sentencing Decision, 21 June 2016, para. 16].
Whereas in Katanga the judges did not find evidence that was supportive of the essential contribution of the convicted person to the crimes, they nevertheless found that Katanga’s “activities as a whole and the various forms which his contribution took had a significant influence on the commission of the crimes” [Katanga Sentencing Decision, 23 May 2014, para. 67]. In addition to that, the Chamber considered evidence on the convicted person’s mens rea, which included knowledge that the militia would engage in the crimes he was charged with, as well as knowledge of the suffering endured by the civilian population [Katanga Sentencing Decision, 23 May 2014, para. 68].
In Bemba, the Trial Chamber provided helpful guidance on how to assess the gravity of the crime in cases of command responsibility, pointing to the necessity to evaluate the gravity of “(i) the crimes committed by the convicted person’s subordinate; and (ii) the convicted person’s own conduct in failing to prevent or repress the crimes, or submit the matter to the competent authorities” (Bemba Sentencing Decision, 21 June 2016, para. 15). The judges found that the evidence demonstrating Bemba’s “repeated and ongoing failures” to stop the commission of crimes, despite his knowledge and ultimate authority over the Mouvement de Libération du Congo (MLC) troops, demonstrated the culpable conduct of serious gravity. Additionally, while assessing the evidence pertinent to Al-Mahdi’s culpable conduct, the judges accorded weight to Al Mahdi’s essential role in the execution of the attack against the protected objects and his direct intent [Al Mahdi Sentencing Decision, 27 September 2016, paras 84-85].

c) Evidence constituting aggravating circumstances for the purposes of sentencing
The existing sentencing practice of the ICC, although still in its nascent phase, provides a good overview as to what evidence the judges could accept as aggravating factors. In Lubanga, when requesting the Trial Chamber to impose the maximum imprisonment term of 30 years, the Prosecution submitted evidence in support of its claim of the existence of aggravating circumstances on (1) harsh conditions in the camps and the brutal treatment of the children; (2) sexual violence; (3) recruitment of children at a very young age as young as 5 or 6 years; and (4) discriminatory motive directed at the female recruits who were subject to sexual violence [Lubanga Sentencing Decision, 10 July 2012, paras 57-81]. In terms of aggravating circumstances, the applicable standard of proof is that they must be established beyond reasonable doubt [Lubanga Sentencing Decision, 10 July 2012, para. 33, Katanga Sentencing Decision, 23 May 2014, para. 34]. In Lubanga, the judges were not satisfied that the evidence presented by the Prosecution with respect to the brutal treatment of children, sexual violence and discriminatory motive, proved the existence of those aggravating circumstances beyond reasonable doubt [Lubanga Sentencing Decision, 10 July 2012, para 59, 75 and 81; Lubanga Appeal Sentencing Decision, 1 December 2014, para. 93]. Here, the Prosecution’s submissions on sexual violence as an aggravating circumstance proved to be particularly controversial. Whereas the judges agreed to consider the evidence on sexual violence for sentencing purposes, they nevertheless vehemently criticized the ICC Prosecutor’s reluctance to include additional charges on sexual violence during the trial [Lubanga Sentencing Decision, 10 July 2012, para. 60]. The Prosecutor’s tactics of introducing evidence on sexual violence for the purposes of sentencing was largely perceived as being an attempt at bringing additional charges through the backdoor. In many instances, the Prosecution adduced evidence on aggravating circumstances that in fact was indicative of the gravity of the crime. As an example, in Lubanga, the evidence in relation to the young age of children was treated as going to the issue of the gravity of the crime and therefore was not considered as an aggravating circumstance [Lubanga Sentencing Decision, 10 July 2012, para. 78].
In Katanga, the evidence on aggravating circumstances introduced by the Prosecution was pertinent to “(1) particularly defenseless victims; (2) particular cruelty of the commission of the crime; (3) motive involving discrimination; and (4) abuse of power or official capacity” [Katanga Sentencing Decision, 23 May 2014, para. 70]. However, the Chamber did not consider such evidence (apart from the evidence on the abuse of power or official capacity that was discussed separately) to constitute aggravating circumstances as it went to the issue of the gravity of the crime [Katanga Sentencing Decision, 23 May 2014, para. 71]. Although targeting of “particularly defenseless victims” and “particular cruelty of the commission of the crime” were not considered as constituting aggravating circumstances in Katanga, the Trial Chamber in Bemba arrived at the opposite conclusion by finding that the evidence on the war crime of rape carried out by the MLC armed soldiers against vulnerable unarmed civilians, including children, as well as the particular cruelty of the crimes of rape and pillaging constituted aggravating circumstances for the purpose of sentencing [Bemba Sentencing Decision, 21 June 2016, paras 43, 47, 57 and Judge Steiner Separate Opinion].
As to Katanga’s exercise of power, the judges helpfully clarified that the exercise of power may constitute an aggravating circumstance if it is proved that the person also abused this power [Katanga Sentencing Decision, 23 May 2014, para. 75]. The abuse of power and official capacity as aggravating circumstances were also advanced by the Prosecution in the Al Mahdi case. However, in this particular instance, the evidence was not treated as constituting aggravating circumstances, as the judges confirmed the earlier jurisprudence of the Court, which states that an official position as such, in the absence of the abuse of that position, cannot be treated as an aggravating circumstance [Al Mahdi Sentencing Decision, 27 September 2016, para. 86]. The evidence on the far-reaching impact of the crime affecting multiple victims as well as the religious nature of an attack was dismissed as constituting aggravating circumstances, as it had already formed part of the Chamber’s assessment of the gravity of the crime [Al Mahdi Sentencing Decision, 27 September 2016, paras 87-88]. In Bemba, the judges emphasized that the Trial Chamber cannot “double-count” any factors in relation to the gravity of the crimes as aggravating circumstances [Bemba Sentencing Decision, 21 June 2016, para. 14].

d) Evidence constituting mitigating circumstances for the purposes of sentencing
When considering the evidence in mitigation of the sentence, the Trial Chamber must be convinced of the existence of mitigating circumstances “on a balance of probabilities” [Lubanga Sentencing Decision, 10 July 2012, para. 34, Katanga Sentencing Decision, 23 May 2014, para. 34, Bemba Sentencing Decision, 21 June 2016, para. 19]. It is also important to bear in mind that mitigating circumstances “need not to be directly related to the crimes” and are “not limited by the scope of the charges or judgment”, however, they need to “relate directly to the convicted person” [Lubanga Sentencing Decision, 10 July 2012, para. 34, Katanga Sentencing Decision, 23 May 2014, para. 32, Bemba Sentencing Decision, 21 June 2016, para. 19]. To prove mitigating circumstances in Lubanga, the Defence adduced the evidence on the necessity faced by Lubanga and others “to build an army (…) in order to establish political and military control over Ituri as a response to the threat of massacre” and Lubanga’s motives to bring peace and demobilization [Lubanga Sentencing Decision, 10 July 2012, paras 83-85]. However, the judges accorded limited relevance to that evidence, emphasizing that the critical factor was that, “in order to achieve his goals, Lubanga used children as part of the armed forces over which he had control” [Lubanga Sentencing Decision, 10 July 2012, para. 87]. They, however, considered that Lubanga’s cooperation throughout the trial, notwithstanding repeated procedural violations of his rights by the prosecution, warranted the mitigation of his sentence [Lubanga Sentencing Decision, 10 July 2012, para. 91].
   In Katanga, the Defence argued that the evidence pertinent to Katanga’s personal circumstances (young age, the type of role he played, the exceptional circumstances in which he found himself, and his family situation), his contribution to peace processes and the cooperation with the Court should be considered as mitigating circumstances. Although the Trial Chamber considered Katanga’s young age, his family situation and his attitude towards the community in mitigation of his sentence, it did however note the limited weight accorded to such evidence [Katanga Sentencing Decision, 23 May 2014, para. 88]. The judges affirmed that the efforts to promote peace and reconciliation may potentially serve as mitigating circumstances. Regardless of this, however, it explicated that “such efforts must be both palpable and genuine” [Katanga Sentencing Decision, 23 May 2014, para 91, Bemba Sentencing Decision, 21 June 2016, para. 72 “genuine and concrete”]. Whereas the Chamber in Katanga was unable to conclude on the basis of the evidence that Katanga was actively promoting the peace process, it nevertheless considered the evidence of his active participation in the demobilization process in mitigation of his sentence [Katanga Sentencing Decision, 23 May 2014, para. 115]. An interesting argument on the convicted person’s peace building efforts was advanced in Bemba where the Defence argued that Bemba’s contribution to peace in neighboring Democratic Republic of the Congo (DRC) should be treated as a mitigating circumstance. The Chamber dismissed such evidence as being irrelevant to the case, emphasizing that Bemba’s selective peace efforts in the DRC do not demonstrate his good character [Bemba Sentencing Decision, 21 June 2016, para. 76].
   In Katanga and Bemba, the judges provided helpful guidance on what kind of evidence of the convicted person’s cooperation with the Court should be considered as a mitigating circumstance. More specifically, it expounded that the evidence of the conduct that is reasonably expected from any accused person (e.g. attendance of court proceedings, good behavior in court) cannot serve as a mitigating circumstance, as the convicted person’s behavior and cooperation should be “exceptional” in order for it to qualify [Katanga Sentencing Decision, 23 May 2014, para. 128, Bemba Sentencing Decision, 21 June 2016, para. 81].
   The violations of the defence’s rights and procedural irregularities were also pleaded as mitigating circumstances in Katanga and Bemba. In Katanga, the convicted person submitted evidence alleging the violation of his procedural rights by the Congolese authorities prior to his transfer to The Hague. However, the Trial Chamber held that, although such violations could form a basis for mitigation of the sentence, it is not within its discretion to rule on the alleged violations of the convicted person’s procedural rights to which he was subjected to in the national context [Katanga Sentencing Decision, 23 May 2014, para. 136]. In other words, the procedural violations can only be imputed to the ICC if they had taken place at the Court and were governed by its procedural framework. In Bemba, the Trial Chamber considered that the alleged violations of the accused’s procedural rights had been addressed during the trial and therefore, could not constitute a mitigating circumstance [Bemba Sentencing Decision, 21 June 2016, para. 89].
   In Al Mahdi, although the Trial Chamber dismissed the evidence on the convicted person’s age, background and the absence of prior conviction as being relevant for the purposes of sentencing, it accorded substantial weight to his admission of guilt and cooperation [Al Mahdi Sentencing Decision, 27 September 2016, paras 96-97]. The admission of guilt is a rare occurrence in the context of international criminal trials. The Trial Chamber noted that the admission of guilt not only “contributed to the rapid resolution of the case, but also had a potential of furthering peace and reconciliation in Northern Mali as well as have a general deterrent effect” [Al Mahdi Sentencing Decision, 27 September 2016, para. 105]. The Trial Chamber also attributed considerable weight to Al Mahdi’s substantial cooperation with the Prosecution as well as the expression of genuine remorse for his acts and empathy to the victims [Al Mahdi Sentencing Decision, 27 September 2016, paras 101-102 (cooperation), paras 103-105 (remorse)].

e) Determination of the Appropriate Sentence
The Trial Chamber has considerable discretion in imposing a proportionate sentence [Lubanga Appeal Decision, para. 34]. Given the absence of consistent sentencing practices in the work of the ICC’s predecessors, the ICC Prosecutor used his submission in Lubanga to highlight the necessity for a “consistent baseline” for the determination of sentences at the ICC. The Prosecution argued for introducing a starting point for all sentences at approximately 80% of the statutory maximum, which should be adjusted in accordance with Rule 145 by considering any aggravating and/or mitigating circumstances, other factors relevant to the convicted person and the circumstances of the crimes [Lubanga Sentencing Decision, 10 July 2012, para. 92]. However, this approach was dismissed by the judges due to the lack of support for such a proposition in the statutory framework of the ICC or the relevant jurisprudence. The judges held that the sentence passed by a Trial Chamber should always be proportionate to a crime and dismissed the suggested automatic starting point for all crimes as undermining that principle [Lubanga Sentencing Decision, 10 July 2012, para. 93]. Adopting the Prosecution approach would essentially translate into accepting that all crimes within the jurisdiction of the Court are of the same gravity, which is something that the Chamber refused to accept in Katanga where it brought up an example as to how it was important to distinguish crimes against persons from those targeting property [Katanga Sentencing Decision, 23 May 2014, paras 43, 145].
   To date, four sentencing decisions have been rendered by the Court, which gives a good preliminary overview as to where the Court is heading with its sentencing practice (Lubanga – 14 years of imprisonment, Katanga – 12 years of imprisonment, Al Mahdi – 9 years of imprisonment, Bemba – 18 years of imprisonment). However, it is still premature to draw any definite conclusions as to the consistency of its sentencing practice. This is also largely due to the fact that four cases concern a diverse spectrum of crimes within the ICC’s jurisdiction and varying degrees of the convicted persons’ participation in the crimes. The ICC judges have also made it clear that, although they must consider all relevant evidence and submissions throughout the trial, they are not obliged to “expressly reference or comment” on each piece of evidence [Lubanga Sentencing Decision, 10 July 2012, paras 69-70, Bemba Sentencing Decision, 21 June 2016, para. 9].
   In the absence of any aggravating circumstances in Lubanga, the Majority determined that the appropriate sentence proportionate to Lubanga’s criminal responsibility was a total period of 14 years of imprisonment [Lubanga Sentencing Decision, 10 July 2012, para. 107]. In her dissent, Judge Odio Benito did not oppose the Majority’s determination of the sentence as such, but disagreed with its decision to disregard the evidence with respect to the damage caused to the victims and their families, as a result of the harsh punishment and sexual violence [Lubanga Sentencing Decision, Dissenting Opinion Judge Odio Benito, 10 July 2012, para 2].
   While determining the appropriate sentence in Katanga, the judges accorded limited weight to Katanga’s young age and his family situation, however, assigned a greater weight to his active support to the process of disarming and demobilizing child soldiers [Katanga Sentencing Decision, 23 May 2014, para. 144]. The joint sentence imposed upon Katanga in light of his contribution as an accessory to the crimes, amounted to 12 years of imprisonment [Katanga Sentencing Decision, 23 May 2014, para. 147]. In Bemba, in the absence of any mitigating circumstances, the judges imposed 18 years of imprisonment upon the convicted person, having taken into account aggravating circumstances that the war crimes of rape and pillaging had been directed against defenseless victims and committed with particular cruelty [Bemba Sentencing Decision, 21 June 2016, para. 93, Judge Steiner appending a separate opinion on the crime of pillaging]. In Al Mahdi, the judges considered the convicted person’s admission of guilt, the expression of empathy to the victims and the substantial cooperation with the Prosecution in mitigation of the sentence, and sentenced him to 9 years of imprisonment [Al Mahdi Sentencing Decision, 27 September 2016, para. 109].

Author:
Iryna Marchuk and B. Aloka Wanigasuriya

Updated:
4 April 2017

Article 76(2)(3)

[635] 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.

Article 76(2) grants the possibility of conducting a separate sentencing hearing following conviction and prior to the completion of the trial. This separate sentencing hearing may be initiated at the Trial Chamber’s own motion or must be commenced following a request by the Prosecutor or the accused. Rule 143 of the RPE clarifies that the presiding judge is to set the date for such a hearing [Sluiter, 2013, p. 536]. Additionally, according to Rule 93 of the RPE, the Chamber may seek the views of victims (both taking part in proceedings or not) on any matter, including matters related to sentencing [Sluiter, 2013, p. 537]. The exception to holding a separate sentencing hearing is the application of Article 65, which sets out the procedure to be followed if the accused has made an admission of guilt.
   The purpose of this separate sentencing hearing is to hear any additional evidence or submissions relevant to the sentence. In the context of international criminal trials, the introduction of a separate sentencing hearing has been discussed at great length [Findlay and Henham, 2010, p. 153]. It was introduced in the early days of the ad hoc tribunals. Both in Tadic (ICTY) and Akayesu (ICTR) separate sentencing hearings were held, however, the rules were subsequently amended with the view of abolishing the practice altogether in 1998 [Henham, 2004, p. 187]. As noted by Schabas, the judges of the ad hoc tribunals appear to have considered that distinct sentencing hearings were a feature of common law procedure involving juries, and therefore not relevant and necessary in trials before a professional bench” (Schabas, 2016, p. 1148). The modified rules of the ad hoc tribunals largely conformed with the civil law approach to sentencing. Although the abolition of a separate sentencing hearing in the ad hoc tribunals could be perceived as an effective means of saving time, money and resources, the practice of not having such a hearing may have compromised the fairness of trials by putting the accused at a serious disadvantage by limiting possible strategies for his defence [Keller, 2001, pp. 68-69]. As Henham points out, “the existence of [separate sentencing] hearings promotes the creation and development of a sentencing jurisprudence...that encourages a culture of judicial transparency through the public reception and rational evaluation of evidence” [Henham, 2004, p. 190].
   The final text of Article 76 of the Rome Statute does not impose an obligation to conduct a separate sentencing hearing, making it optional, although creating “a strong presumption in favour of a distinct sentencing hearing following conviction” [Schabas, 2016, p. 1149]. However, given that holding such a hearing is mandatory upon the request of the Prosecutor or the convicted individual, it was anticipated that there would be a separate sentencing hearing in nearly all cases. As the practice of the Court shows, to date, sentencing hearings have been conducted in all cases, with the exception of the Al Mahdi case where the accused entered a guilty plea. Hence, the anticipated concerns about making a sentencing hearing optional have not materialised [D’Ascoli, 2011, p. 277].
   In Lubanga, at the preparation stage of the trial, the Defence requested a separate sentencing hearing [Lubanga Sentencing Decision, 10 July 2012, para. 20]. Following the request, the Lubanga Trial Chamber confirmed it would hold such a hearing, yet however, expressed a strong preference for the evidence relating to sentencing to be admitted during the trial for reasons of efficiency and economy [Lubanga Sentencing Decision, 10 July 2012, para 30]. As to the scope of the evidence to be submitted at the sentencing hearing stage, the Lubanga Trial Chamber clarified that it “can exceed the facts and circumstances set out in the confirmation decision, provided that the Defence has had a reasonable opportunity to address them” [Lubanga Sentencing Decision, 10 July 2012, para 29]. After the delivery of the judgment, the Trial Chamber issued an order setting the date for the public hearing on sentence and at the same time instructed parties and legal representatives of victims to file submissions on the sentence to be imposed on Lubanga [Lubanga Sentencing Decision, 10 July 2012, paras 5, 8]. It also granted the Defence request to introduce additional evidence during the sentencing hearing by calling two additional witnesses to testify via video-link from the DRC and admitting additional documentary evidence [Lubanga Sentencing Decision, 10 July 2012, paras 8, 10]. During the hearing, Lubanga also made a statement to the Chamber [Lubanga Sentencing Decision, 10 July 2012, para 11].
   In Katanga, the Defence requested an additional sentencing hearing in its closing statement [Katanga Sentencing Decision, 23 May 2014, para. 2]. In preparation for such a hearing, both the Prosecution and the legal representatives presented submissions listing aggravating circumstances and arguing against any mitigating circumstances [Katanga Sentencing Decision, 23 May 2014, paras 10-11]. At the same time, the Prosecution sought authorization to call a witness from the DRC to testify about the impact of the crimes on the survivors of the attack [Katanga Sentencing Decision, 23 May 2014, para 10]. In addition to pleading mitigating circumstance, the Defence requested to call two witnesses to testify via video link on Katanga’s behaviour in his community and admit into record witness statements with respect to his moral standing [Katanga Sentencing Decision, 23 May 2014, para 12]. The judges satisfied both the Prosecution and Defence requests despite the protracted argument between both parties on the necessity to hear additional evidence [Katanga Sentencing Decision, 23 May 2014, paras 13-14]. As to the scope of the sentencing hearing, the Trial Chamber emphasized that no reference should be made to substantive issues that had been already addressed in the judgement [Katanga Sentencing Decision, 23 May 2014, para. 14]. Katanga also availed himself of the opportunity to make a statement in accordance with Article 67(1)(h) of the Rome Statute [Katanga Sentencing Decision, 23 May 2014, para. 24].
   In Bemba, the parties had divergent views on the need for a separate sentencing hearing, with Defence arguing against such a hearing for the sake of expeditiousness of the trial (Prosecutor v. Bemba, ICC T. Ch. III, Decision on the timetable and on the sentencing procedure, ICC-01-05-01/08-3071, 26 May 2014, para. 6). However, the Chamber, in light of the Prosecution request within Article 76(2) of the Rome Statute, upheld the necessity to conduct such a hearing given that it would allow the parties “to make focused and meaningful submissions on sentencing” [Prosecutor v. Bemba, ICC T. Ch. III, Decision on the timetable and on the sentencing procedure, ICC-01-05-01/08-3071, 26 May 2014, para. 13]. During the course of the hearing, the Chamber heard the Prosecution and Defence witnesses as well as oral submissions of the parties to proceedings and the legal representative of victims [Bemba Sentencing Decision, 21 June 2016, para. 7].
   The exception to Article 76(2)-(3) is situations where the parties have reached a plea agreement in relation to the charges in accordance with Article 65 of the Statute. For the first time in the history of the ICC, such agreement was reached in the Al Mahdi case where the accused was charged with the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute [Al Mahdi Sentencing Decision, 27 September 2016, para. 3]. During the status conference, it was decided that, in the event of conviction, the judgement and sentence would be rendered simultaneously, which was subsequently done [Al Mahdi Sentencing Decision, 27 September 2016, para. 5]. Although no separate sentencing hearing was applicable in light of the accused’s admission of guilt and entering into a plea agreement, this did not impede his Defence from submitting relevant evidence beyond the charge that the accused had accepted, which was relevant for sentencing purposes [Al Mahdi Sentencing Decision, 27 September 2016, para. 7]. Acting in a contrary manner would have deprived the accused from presenting additional evidence related to sentence that could be considered in mitigation of his sentence.
   Neither Article 76 of the Statute nor Rule 143 provide a straightforward answer as to whether a separate hearing could also be held at the appeals stage. As noted by Schabas, although such a hearing would not make much sense at the appeals stage where no new evidence is being introduced, it may still be utilized as an option in the future practice of the Court [Schabas/Ambos in Triffterer/Ambos, 2016, p. 1873]. The early practice of the Court reinforces the utility of bifurcated proceedings when a separate sentencing hearing is being held. As clear from the examples provided above, all parties to the proceedings have thus far greatly benefitted from separate sentencing hearings where they used ample opportunities to adduce additional evidence relevant for the purposes of sentencing.

Authors:
Iryna Marchuk and B. Aloka Wanigasuriya

Updated:
4 April 2017

Article 76(4)

[637] 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.
Article 76(4) necessitates that the Trial Chamber’s decision on sentencing be delivered in public. This requirement for the public pronouncement of sentencing decisions is further supported by Rule 144(1) of the RPE. As certain commentators have suggested, the wording of the Statute and the RPE leaves the decision on whether to issue two decisions - namely (i) a decision regarding guilt or innocence, and (ii) a decision on sentencing (provided that the accused receives a conviction) - at the discretion of the Trial Chamber [Schabas, 2016, p. 1151].
   What appears to have generated most discussion with regard to Article 76(4) is its reference to the presence of the accused in court when the sentence is pronounced. Generally, the accused should be present during all stages of the trial, including during the sentencing hearing, unless s/he is excused. While continental European criminal procedure is familiar with the concept of trials in absentia, international criminal procedure, which resembles Anglo-American practices in that regard, demonstrates a preference for the accused’s presence at trial [Safferling, 2012, p. 396]. Trials in absentia hearings are generally perceived as being unfair. Trials in absentia have been prohibited at the ad hoc tribunals (Art. 21(4)(d) ICTY Statute, Art. 20(4)(d) ICTR Statute). This prohibition relates to the rights enshrined in Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR). However, at the ad hoc tribunals the accused’s right to be present at trial is not absolute and is subject to two exceptions, these being (i) waiver and (ii) disruption (e.g. Prosecutor v. Zigiranyirazo, Decision on Interlocutory Appeal, case No. ICTR-2001-AR73, App. Ch., 30 October 2006, para. 14; Prosecutor v. Milosevic, Decision on Interlocutory Appeal of the trial Chamber’s Decision on the Assignment of Defence Counsel, case No. IT-02-54-AR73.7, App. Ch., 1 November 2004, para. 13).
   With regard to the ICC, an express prohibition against trials in absentia is contained in Article 63(1) of the Rome Statute, with the defendant’s right to be present at trial being set out in Article 67(1)(d). Additionally, Article 76(4) explicitly states that the sentence should be pronounced in the presence of the accused, wherever possible. However, just as with the ad hoc tribunals, right to be present comes with exceptions. Article 63(2) endows the Trial Chamber with the power to remove the accused from the courtroom in exceptional circumstances, if the accused continues to disrupt the trial. Additionally, Rules 134 ter (excusal from presence at trial), 134 quater (excusal from presence at trial due to extraordinary public duties) and 134 bis (presence through the use of video technology) of the RPE provide further exceptions for situations when the accused’s presence may not be required (ICC-ASP/12/Res.7, 27th November 2013). These additional exceptions, which were introduced through an amendment to the RPE in 2013, are in line with the adopted flexible approach encapsulated in the phrase ‘wherever possible’ with regard to the requirement for the accused to be present at the sentencing hearing. While some have argued that such a flexible reading of the phrase is contrary to the travaux preparatoires, these exceptions appear to strengthen such a flexible reading of ‘wherever possible’ [Schabas/Ambos in Triffterer/Ambos, 2016, p. 1876]. Furthermore, the argument has been posed that these absentia exceptions that apply to the trial stage, should by logical extension also apply to the sentencing stage where the sentence is pronounced [Schabas/Ambos in Triffterer/Ambos, 2016, p. 1876]. This would at least be true in terms of Rule 134 quater, where an accused waives his/her right to be present at trial and is granted permission to be represented by counsel only (unlike Rule 134 ter under which an accused is only permitted to be represented by counsel during a certain part or parts of the trial). In this respect, it is particularly instructive to look at the defence request pursuant to Article 63(1) and Rule 134 quater to excuse Kenyan Deputy President William Samoei Ruto from attending his trial (Prosecutor v. Ruto and Sang, ICC TC V(A), Defence Request pursuant to Article 63(1) of the Rome Statute and Rule 134 quater of the Rules of Procedure and Evidence to excuse Mr. William Samoei Ruto from attendance at trial, ICC-01/09-01/11-1124, 16 December 2013). Following this request, the Court decided to conditionally excuse Mr. Ruto from presence at trial pursuant to Rule 134 quater with regard to: (i) the entirety of the closing statements of all parties and participants in the case; (ii) when victims present their views and concerns in person; (iii) the entirety of the delivery of the judgment in the case; (iv) the entirety of the sentencing hearing (if applicable); (v) the entirety of the sentencing (if applicable); (vi) the entirety of the victim impact hearings (if applicable); (vii) the entirety of the reparation hearings (if applicable); (viii) the first five days of hearing starting after a judicial recess as set out in regulation 19bis of the Regulations; and (ix)any other attendance directed by the Chamber either propria motu or other request of a party or participant as decided by the Chamber [Prosecutor v. Ruto and Sang, ICC TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134 quater, ICC-01/09-01/11-1186, 18 February 2014, para. 79]. This application of Rule 134 quater in order to permit an accused to be absent from the entirety of the sentencing hearing and the entirety of the sentencing illustrates that the exceptions set out in the new rules, as outlined above, apply not only to the trial stage but also to the sentencing stage.
   The presence of the phrase ‘wherever possible’ in 76(4) of the Statute, in the context of requiring the presence of the accused when the sentence is pronounced, has generated scholarly attention as to how this could be translated to the sentencing generates uncertainty as to the practical application of the provision at the sentencing stage. According to Schabas, the expression ‘whenever possible’ may have been adopted to reflect a common law principle to avoid a situation whereby an individual who has been found guilty of a crime manages to abscond between the verdict and the determination of sentence [Schabas, 2016, p. 1151]. At the ICC, however, where provisional release is rather an exception as opposed to the norm, the possibility of absconding is almost non-existent.

Doctrine
1. G. Acquaviva, ”Single and Bifurcated Trials” in Göran Sluiter and others (Eds.) International Criminal Procedure: Principles and Rules, OUP, Oxford, 2013, pp. 534-543.
2. M. Cherif Bassiouni and William A. Schabas (eds.), The Legislative History of the International Criminal Court, Second Edition, Brill Nijhoff, Leiden/Boston, 2016.
3. Silvia D’Ascoli, Sentencing in International Criminal Law the Un and ad hoc Tribunals and Future Perspectives for the ICC, Hart Publishing, Oxford/Portland, 2011, p. 277.
4. Peter Lewis, ”Trial Procedure” in Roy S. Lee (ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 539-553.
5. Christoph Safferling, International Criminal Procedure, Oxford University Press, Oxford, 2012, p. 396.
6. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Second Edition, Oxford University Press, Oxford, 2016, pp. 1147-1152.
7. William A. Schabas and Kai Ambos in Otto Triffterer and Kai Ambos (eds), Commentary on the Rome Statute of the International Criminal Court, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/ Baden-Baden, 2016, pp. 1873-1876.
8. Mark Findlay and Ralph Henham, Beyond Punishment: Achieving International Criminal Justice, Palgrave Macmillan, London, 2010.
9. Andrew N. Keller, “Punishment for Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR”, Indiana International and Comparative Law Review, vol 12, no. 1, 2001, 53-74.
10. Ralph Henham, “Procedural Justice and Human Rights in International Sentencing”, International Criminal Law Review, vol 4, no. 2, 2004, 185-210.

Authors:
Iryna Marchuk and B. Aloka Wanigasuriya

Updated:
4 April 2017

Commentary continued - Part 7

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Article 62

Article 63(1)

Article 63(2)

Article 64(1)

Article 64(2)

Article 64(3)

Article 64(3)(a)

Article 64(3)(b)

Article 64(3)(c)

Article 64(4)

Article 64(5)

Article 64(6)

Article 64(6)(a)

Article 64(6)(b)

Article 64(6)(c)

Article 64(6)(d)

Article 64(6)(e)

Article 64(6)(f)

Article 64(7)

Article 64(8)(a)

Article 64(8)(b)

Article 64(9)(a)

Article 64(9)(b)

Article 64(10)

Article 65

Article 65(1)

Article 65(1)(a)

Article 65(1)(b)

Article 65(1)(c)

Article 65(2)

Article 65(3)

Article 65(4)

Article 65(5)

Article 66

Article 66(1)

Article 66(2)

Article 66(3)

Article 67

Article 67(1)

Article 67(1)(a)

Article 67(1)(b)

Article 67(1)(c)

Article 67(1)(d)-1

Article 67(1)(d)-2

Article 67(1)(e)

Article 67(1)(f)

Article 67(1)(g)

Article 67(1)(h)

Article 67(1)(i)

Article 67(2)

Article 68

Article 68(1) - appropriate measures

Article 68(1) - measures to protect the safety, well-being, dignity and privacy

Article 68(1) - factors to be considered when adopting protective measures

Article 68(1) - obligation of the Prosecutor to take appropriate protective measures

Article 68(1) - protective measures and rights of the Defence

Article 68(2) - manner of conduct of proceedings to protect victims, witnesses or accused

Article 68(3) - personal interests

Article 68(3) - identification of the victims

Article 68(3) - obligation of the Court to allow and consider the victims’ views and concerns

Article 68(3) - appropriate stages of the proceedings

Article 68(3) - rights of the Defence

Article 68(3) - submission of victims’ views and concerns by legal representatives

Article 68(4)

Article 68(4) - Services of the Victims and Witnesses Unit

Article 68(5)

Article 68(5) - summary evidence

Article 68(6)

Article 69

Article 69(1)

Article 69(2)

Article 69(3)

Article 69(4)

Article 69(5)

Article 69(6)

Article 69(7)

Article 69(8)