[193] Evaluation of information by the Prosecutor
A. General Remarks
To some extent, Rule 104 further details the process of the preliminary examination or the ‘pre-investigative phase’ under Article 53(1) ICC Statute, which immediately precedes the investigation proper. This preliminary examination is initiated by the Prosecutor, on the basis of information received. Alternatively, this preliminary examination will be initiated following the referral of a situation (consider e.g. ICC, Policy Paper on Preliminary Examinations, 2013, par. 73 – 76). During this phase, the Prosecutor should assess whether to proceed with an investigation, on the basis of the factors outlined in Article 53 (1) (a) – (c) ICC Statute.

Author:
Karel De Meester

[194] 1. In acting pursuant to article 53, paragraph 1, the Prosecutor shall, in evaluating the information made available to him or her, analyse the seriousness of the information received.
According to paragraph 1 of Rule 104, the Prosecutor should at all times analyse the seriousness of the information received when he or she is acting under Article 53(1) ICC Statute. This is a repetition of what is stated in Article 15(2) ICC Statute with regard to proprio motu investigations. While Rule 104(1) obliges the Prosecutor to analyse the seriousness of all information received, Article 42(1) ICC Statute imposes a threshold with regard to information received by the Prosecutor. It requires the Prosecutor to examine ‘referrals and any substantiated information on crimes within the jurisdiction of the Court’ (confirming, see OTP, ‘Annex to the “Paper on Some Policy Issues before the Office of the Prosecutor”: Referrals and Communications’, p. 2).

Author:
Karel De Meester

[195] 2. For the purposes of sub-rule 1, the Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental and non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. The procedure set out in rule 47 shall apply to the receiving of such testimony.
Paragraph 2 puts some limited investigative powers at the Prosecutor’s disposal during the preliminary examination. It is a repetition of the powers which are provided for in Article 15(2) ICC Statute, with regard to the possibility of proprio motu investigations. These powers are provided to the Prosecutor for the purpose of determining the seriousness of the information received. It is clear that the investigative powers mentioned in Article 54 ICC Statute are only at the Prosecutor’s disposal after the start of the investigation proper.
  The reference, in the last sentence, to Rule 47 implies that the procedural rules on the recording of questioning during the investigation apply mutatis mutandis to the scenario where the Prosecutor receives written or oral testimony at the seat of the Court in the course of the preliminary examination (Rules 47, 104(2), 111 and 112 ICC RPE). Additionally, when the Prosecutor considers that there is a serious risk that testimony may not be available later (during a possible formal investigation), he or she may request the Pre-Trial Chamber ‘to take such measures as may be necessary to ensure the efficiency and integrity of the proceedings’. This may include the appointment of a counsel or a Judge to protect the rights of the Defence during the taking of the testimony (Rule 47(2) ICC RPE).
   Rule 104(2) (and Article 15(2) ICC Statute) only refer to the possibility for the Prosecutor to receive testimony ‘at the seat of the Court’. A textual interpretation suggests that field offices are excluded. This interpretation is supported by Article 3(1) ICC Statute, which defines the seat of the Court. However, it has been argued that this provision should be given a more liberal interpretation, allowing the Prosecutor to receive testimony at the field offices (Bergsmo and Pejić, 2008, p. 588). The Prosecutor has interpreted its powers under Rule 104(2) (and Article 15(2) ICC Statute) in a broad fashion, as to allow him or her to undertake regular ‘field missions’, in order to monitor the situation (see e.g. U.N., Report on the International Criminal Court, U.N. Doc. A/66/309, 19 August 2011, par. 75 and 78 (reporting on field missions to Georgia and Guineau); OTP, Policy Paper on Preliminary Examinations, 2013, par. 85). Moreover, on this basis the Prosecutor received diplomatic missions at the seat of the Court and entered into a dialogue with different stakeholders in the conflict (Olásolo, 2010, pp. 6 – 7).

Doctrine:
1.  Bergsmo, Morten and Pejić, Jelena, Article 15, Trifterer, Otto (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Verlag C.H. Beck, München, 2008, p. 588.
2.  Olásolo, Héctor, The Role of the International Criminal Court in Preventing Atrocity Crimes Through Timely Intervention: From the Humanitarian Intervention Doctrine and Ex Post Facto Judicial Institutions to the Notion of Responsibility to Protect and the Preventative Role of the International Criminal Court, Inaugural Lecture as Chair in International Criminal Law and International  Criminal Procedure at Utrecht University, 18 October 2010, available at http://responsibilitytoprotect.org/Professor-Olasolo-Inagural-Lecture-at-Utrecht-University-English-Version.pdf, last visited 10 February 2014, pp. 6 – 7.

Author:
Karel De Meester

[196] Notification of a decision by the Prosecutor not to initiate an investigation
1. When the Prosecutor decides not to initiate an investigation under article 53, paragraph 1, he or she shall promptly inform in writing the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b).
2. When the Prosecutor decides not to submit to the Pre-Trial Chamber a request for authorization of an investigation, rule 49 shall apply.
3. The notification referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion.
4. In case the Prosecutor decides not to investigate solely on the basis of article 53, paragraph 1 (c), he or she shall inform in writing the Pre-Trial Chamber promptly after making that decision.
5. The notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion.
Rule 105 ICC RPE provides for a notification duty in case the Prosecutor decides not to proceed with an investigation. The importance of this notification duty lies where it enables the review function of the Pre-Trial Chamber under Article 53(3) ICC Statute. The Prosecutor should promptly inform the State(s) or the Security Council which referred the situation. According to Rule 105(3), the Prosecutor should provide reasons for its decision not to initiate an investigation.
    No time frame for the conduct of the preliminary examination by the Prosecutor has been included in the ICC Statute. However, Pre-Trial Chamber III held that “the preliminary examination of a situation pursuant to Article 53(1) of the Statute and rule 104 of the Rules must be completed within a reasonable time from the reception of a referral by a State Party under articles 13(a) and 14 of the Statute, regardless of its complexity” (Situation in the Central African Republic, ICC PT. Ch. III, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, 30 November 2006, ICC-01/05-6, 30 November 2006, p. 4). Among others, it derived this requirement from Rule 105(1), which obliges the Prosecutor to ‘promptly’ inform the State(s) which referred the situation, or the Security Council, of a decision not to initiate an investigation.
   Paragraphs 4 and 5 concern the situation where the Prosecutor decides not to proceed with an investigation, solely on the basis of the interests of justice criterion under Article 53 (1)(c) ICC Statute. In this scenario, the Pre-Trial Chamber should be informed promptly in writing. No distinction is made on the basis of the triggering mechanism. This notification triggers the review power of the Pre-Trial Chamber (Situation in the Republic of Kenya, ICC PT. Ch. II, ICC-01/09-19, 31 March 2010, par. 63). The Prosecutor ‘s obligation to provide reasons for its decision (Rule 105(5)) may be seen as an incentive for the Prosecutor to adopt ex ante prosecutorial guidelines on the exercise of prosecutorial discretion. The Prosecution already adopted a guideline on its understanding of the ‘interests of justice’ criterion (OTP Policy Paper on the Interests of Justice, September 2007).

Author:
Karel De Meester

[197] Notification of a decision by the Prosecutor not to prosecute
1. When the Prosecutor decides that there is not a sufficient basis for prosecution under article 53, paragraph 2, he or she shall promptly inform in writing the Pre-Trial Chamber, together with the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b).
2. The notifications referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion.  
Rule 106 imposes a notification duty upon the Prosecutor in case he or she decides not to proceed with a prosecution. Such notification duty is necessary in order for the Pre-trial Chamber to be able to exercise its review function under Article 53(3) ICC Statute. The second paragraph of Rule 106 requires the Prosecutor to provide reasons for its decision not to proceed with a prosecution.
   A fundamental problem with Rule 106 (and Article 53 (2) ICC Statute) is that its object is unclear. The information duty under Rule 106 may arise following (1) a decision not to prosecute a particular individual, (2) a decision not to prosecute a certain group of persons in a given situation, (3) a decision not to prosecute certain crimes and (4) a decision not to bring any case at all (Stahn, 2009, p. 270). The jurisprudence will have to further elucidate this threshold.

Doctrine:
Stahn, Carsten, Judicial Review of Prosecutorial Discretion: Five Years on, Stahn, Carsten & Sluiter, Göran (Eds.), The Emerging Practice of the International Criminal Court, 247–279, Koninklijke Brill, Leiden, 2009, p. 270.

Author:
Karel De Meester

[198] Request for review under article 53, paragraph 3 (a)
1. A request under article 53, paragraph 3, for a review of a decision by the Prosecutor not to initiate an investigation or not to prosecute shall be made in writing, and be supported with reasons, within 90 days following the notification given under rule 105 or 106.
2. The Pre-Trial Chamber may request the Prosecutor to transmit the information or documents in his or her possession, or summaries thereof, that the Chamber considers necessary for the conduct of the review.
3. The Pre-Trial Chamber shall take such measures as are necessary under articles 54, 72 and 93 to protect the information and documents referred to in sub-rule 2 and, under article 68, paragraph 5, to protect the safety of witnesses and victims and members of their families.
4. When a State or the Security Council makes a request referred to in sub-rule 1, the Pre-Trial Chamber may seek further observations from them.
5. Where an issue of jurisdiction or admissibility of the case is raised, rule 59 shall apply.
Rule 107 ICC RPE concerns requests for review by the referring State or the Security Council of the Prosecutor’s decision not to proceed. A time limitation for such requests for review is provided for. They should be filed within 90 days following the notification by the Prosecutor of the decision not to proceed. Moreover, such request should be ‘supported with reasons’. The other paragraphs provide the Pre-Trial Chamber with the necessary powers to be able to fulfil its review task, including the power to request the Prosecutor to transmit the information or documents in his or her possession or summaries thereof which the Chamber considers necessary to fulfil its review task or to seek further observations from the referring State(s) or the Security Council.

Author:
Karel De Meester

[199] Decision of the Pre-Trial Chamber under article 53, paragraph 3 (a)
1. A decision of the Pre-Trial Chamber under article 53, paragraph 3 (a), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review.
2. Where the Pre-Trial Chamber requests the Prosecutor to review, in whole or in part, his or her decision not to initiate an investigation or not to prosecute, the Prosecutor shall reconsider that decision as soon as possible.
3. Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review.
The first paragraph of Rule 108 sets forth the decision-making process when the Pre-Trial Chamber exercises its power under Article 53 (3)(a) to review a decision by the Prosecutor not to proceed. The decision by the Pre-Trial should be concurred in by a majority of the Judges and be reasoned. The Pre-Trial Chamber may either confirm the decision of the Prosecutor not to proceed or request the Prosecutor to reconsider his or her decision.
   When the Pre-Trial Chamber requests the Prosecutor to review, ‘in whole or in part’, its decision not to proceed, the Prosecutor should ‘reconsider’ his or her decision (Rule 108 (2)). Hence, the Prosecutor is not under an obligation to change his or her decision. No further recourse is provided for in case the Prosecutor does not alter his or her decision. The last paragraph of Rule 108 requires the Prosecutor to notify the decision to the Pre-Trial Chamber in writing and provide reasons for his or her conclusion. It will then be communicated to those who participated in the review (Rule 108 (3)).

Author:
Karel De Meester

[200] Review by the Pre-Trial Chamber under article 53, paragraph 3 (b)
1. Within 180 days following a notification given under rule 105 or 106, the Pre-Trial Chamber may on its own initiative decide to review a decision of the Prosecutor taken solely under article 53, paragraph 1 (c) or 2 (c). The Pre-Trial Chamber shall inform the Prosecutor of its intention to review his or her decision and shall establish a time limit within which the Prosecutor may submit observations and other material.
2. In cases where a request has been submitted to the Pre-Trial Chamber by a State or by the Security Council, they shall also be informed and may submit observations in accordance with rule 107.
Rule 109 concerns the situation where the Pre-Trial Chamber decides, on its own initiative, to review a decision of the Prosecutor not to proceed, when this decision is solely based on the basis of the ‘interests of justice’ criterion (Article 53 (3)(b) ICC Statute). A time limitation is included. The Pre-Trial Chamber should take a decision to review the decision by the Prosecutor within 180 days following notification.
   Absent from Rule 108 is a provision authorising the Pre-Trial Chamber to request the Prosecutor to ‘transmit the information or documents in his or her possession, or summaries thereof, that the Chamber considers necessary for the conduct of the review’ (Compare Rule 107(2) ICC RPE). However, this power has been included in Regulation 48 of the Regulations of the Court.

Author:
Karel De Meester

[201] Decision by the Pre-Trial Chamber under article 53, paragraph 3 (b)
1. A decision by the Pre-Trial Chamber to confirm or not to confirm a decision taken by the Prosecutor solely under article 53, paragraph 1 (c) or 2 (c), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review.
2. When the Pre-Trial Chamber does not confirm the decision by the Prosecutor referred to in sub-rule 1, he or she shall proceed with the investigation or prosecution.
Rule 110 details the decision-making process in case the Pre-Trial Chamber decides to review a decision of the Prosecutor not to proceed under Article 53 (3)(b). The decision by the Pre-Trial Chamber should be reasoned and concurred in by a majority of the Judges. It follows from Rule 110(2) that in case the Pre-Trial Chamber exercises its review function under Article 53 (3)(b) and decides not to confirm the decision by the Prosecutor, ‘he or she shall proceed with the investigation or prosecution’. This implies that the Prosecutor may be forced to continue with the investigation or prosecution. Clearly, there is a risk that the Prosecutor may not put too much effort in the subsequent proceedings.

Author:
Karel De Meester

[202] 1. A record shall be made of formal statements made by any person who is questioned in connection with an investigation or with proceedings. The record shall be signed by the person who records and conducts the questioning and by the person who is questioned and his or her counsel, if present, and, where applicable, the Prosecutor or the judge who is present. The record shall note the date, time and place of, and all persons present during the questioning. It shall also be noted when someone has not signed the record as well as the reasons therefor.

2. When the Prosecutor or national authorities question a person, due regard shall be given to article 55. When a person is informed of his or her rights under article 55, paragraph 2, the fact that this information has been provided shall be noted in the record.
The Rome Statute does not regulate how questioning shall be recorded. This is dealt with in the Rules of Procedure and Evidence. Rule 111 contains general provisions which during the negotiations was accepted to be good practice (Friman, 2004, p. 197). Rule 112 regulate particualr cases.
   One major issue during the negotiations was whether rules on recording of questioning would also apply when a national authority questions a person at the request of the Court. The Rules of Procedure and Evidence cannot by itself creat new obligations for the States. However, the Court may request the National Authorities to recording the questioning in the same way as regulated in the The Rules of Procedure and Evidence pursuant to Article 96(2)(d) and 99(1) (Friman, 2004, p. 198).

Cross-references
Article 55(2), 96(2)(d) and 99(1).

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp. 74, 160, 341, 495-496.
2. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 512-514.
3. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 197-198.

Author:
Mark Klamberg

Updated:
20 August 2017

[203] 1. Whenever the Prosecutor questions a person to whom article 55, paragraph 2, applies, or for whom a warrant of arrest or a summons to appear has been issued under article 58, paragraph 7, the questioning shall be audio- or video-recorded, in accordance with the following procedure:

(a) The person questioned shall be informed, in a language he or she fully understands and speaks, that the questioning is to be audio- or video-recorded, and that the person concerned may object if he or she so wishes. The fact that this information has been provided and the response given by the person concerned shall be noted in the record. The person may, before replying, speak in private with his or her counsel, if present. If the person questioned refuses to be audio- or videorecorded, the procedure in rule 111 shall be followed;

(b) A waiver of the right to be questioned in the presence of counsel shall be recorded in writing and, if possible, be audio- or video-recorded;

(c) In the event of an interruption in the course of questioning, the fact and the time of the interruption shall be recorded before the audio- or video-recording ends as well as the time of resumption of the questioning;

(d) At the conclusion of the questioning, the person questioned shall be offered the opportunity to clarify anything he or she has said and to add anything he or she may wish. The time of conclusion of the questioning shall be noted;

(e) The tape shall be transcribed as soon as practicable after the conclusion of the questioning and a copy of the transcript supplied to the person questioned together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes;

(f) The original tape or one of the original tapes shall be sealed in the presence of the person questioned and his or her counsel, if present, under the signature of the Prosecutor and the person questioned and the counsel, if present.

2. The Prosecutor shall make every reasonable effort to record the questioning in accordance with sub-rule 1. As an exception, a person may be questioned without the questioning being audio- or video-recorded where the circumstances prevent such recording taking place. In this case, the reasons for not recording the questioning shall be stated in writing and the procedure in rule 111 shall be followed.

3. When, pursuant to sub-rule 1 (a) or 2, the questioning is not audio- or videorecorded, the person questioned shall be provided with a copy of his or her statement.

4. The Prosecutor may choose to follow the procedure in this rule when questioning other persons than those mentioned in sub-rule 1, in particular where the use of such procedures could assist in reducing any subsequent traumatization of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence. The Prosecutor may make an application to the relevant Chamber.

5. The Pre-Trial Chamber may, in pursuance of article 56, paragraph 2, order that the procedure in this rule be applied to the questioning of any person.
While Rule 111 contains general provisions deal with general provisions for recording the questioning, Rule 112 regulate questioning of a "suspect".
   Sub-rule 1 contains a requirement that the questioning shall be audio- or video-recorded with some room for exceptions: a) it may be waived by the accused under sub-rule 1(b) or 2) where the circumstances prevent such recording taking place (sub-rule 2).
   Sub-rule 4 provides that the Prosecutor may choose to audio- or vidoe-record when questioning other persons that the "suspect".
   In Ruto and Sang, ICC T. Ch. V(a), Decision on Prosecution Request for Admission of Prior Recorded Testimony, ICC-01/09-01/11-1938-Corr-Red2, 19 August 2015, paras. 32-33, the Trial  Chamber determined that Rule 68 on "prior recorded testimony" applies to recorded statements under Rules 111 and 112.
   In Banda and Jerbo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled "Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation", 17 February 2012, para. 1, the Appeals Chamber ruled that "[w]hen the Prosecutor records the questioning ofa person in accordance with rule 112 of the Rules of Procedure and Evidence, he or she is not required to create an additional record of the person's statements under rule 111 of the Rules of Procedure and Evidence."

Cross-references
Article 55(2)

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp. 74, 82, 341, 495, 523-524.
2. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 512-514.
3. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 197-198.

Author:
Mark Klamberg

Updated:
20 August 2017

[204] 1. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor, the person concerned or his or her counsel, order that a person having the rights in article 55, paragraph 2, be given a medical, psychological or psychiatric examination. In making its determination, the Pre-Trial Chamber shall consider the nature and purpose of the examination and whether the person consents to the examination.

2. The Pre-Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Pre-Trial Chamber at the request of a party.
The question of medical examinations was raised already during the Rome Conference but it was agreed that the matter should be resolved in the Rules of Procedure and Evidence (Friman, 2004, p. 198). Rule 113 provides that the Pre-Trial Chamber may order that the "suspect" is given a medical, psychological or psychiatric examination.
   Friman has noted that the rule applies to "examination" and not "treatment". The rule is relevant to examine whether to establish whether the person is fit to stand trial´or suffers from a mental disease of defect that could exclude criminal responsibility under article 31(1)(a). It may also be used to collect incriminating or exculpatory circumstances. To use such examinations to obtain incriminatory evidence was controversial during the negotiations (Friman, 2004, pp. 198-199).

Cross-references
Article 55(2), rule 135

Doctrine
1. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 504-506.
2. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 198-199.

Author:
Mark Klamberg

Updated:
20 August 2017

[205] 1. Upon being advised by the Prosecutor in accordance with article 56, paragraph 1 (a), the Pre-Trial Chamber shall hold consultations without delay with the Prosecutor and, subject to the provisions of article 56, paragraph 1 (c), with the person who has been arrested or who has appeared before the Court pursuant to summons and his or her counsel, in order to determine the measures to be taken and the modalities of their implementation, which may include measures to ensure that the right to communicate under article 67, paragraph 1 (b), is protected.

2. A decision of the Pre-Trial Chamber to take measures pursuant to article 56, paragraph 3, must be concurred in by a majority of its judges after consultations with the Prosecutor. During the consultations, the Prosecutor may advise the Pre-Trial Chamber that intended measures could jeopardize the proper conduct of the investigation.
Rule 114 underpins article 56 on "unique investigative opportunities". Article 56 is a compromise between the interest of having an independent prosecutor and judicial intervention.
   Article 56 addresses two situations: 1) when the Prosecutor takes the initiative of such an investigation situation (article 56(1)) or 2) when the Pre-Trial Chamber takes the initiative of such an investigation situation on its own initiative (article 56(3)). Rule 114 follows this, sub-rule 1 concerns initiatives by the Prosecutor while sub-rule 2 concerns initiatives by the Pre-Trial Chamber.
   In order to protect the rights of the defence, sub-rule 1 states that measures could include those that seek to ensure that the right to communicate under article 67, paragraph 1 (b), is protected. 
   In Situation in the Democratic Republic of the Congo, Decision to Hold Consultation under Rule 114, 21 April 2005, PTC I considered that there was a unique investigative opportunity within the terms of article 56 (1) (a) of the Statute and decided to convene an ex parte consultation with the Prosecutor in order to determine the measures to be taken and the modalities of their implementation.

Cross-references
Article 56

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp. 102, 393.
2. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 506-507.
3. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 195-196.

Author:
Mark Klamberg

Updated:
20 August 2017

[206] 1. Where the Prosecutor considers that article 57, paragraph 3 (d), applies, the Prosecutor may submit a written request to the Pre-Trial Chamber for authorization to take certain measures in the territory of the State Party in question. After a submission of such a request, the Pre-Trial Chamber shall, whenever possible, inform and invite views from the State Party concerned.

2. In arriving at its determination as to whether the request is well founded, the Pre-Trial Chamber shall take into account any views expressed by the State Party concerned. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor or the State Party concerned, decide to hold a hearing.

3. An authorization under article 57, paragraph 3 (d), shall be issued in the form of an order and shall state the reasons, based on the criteria set forth in that paragraph. The order may specify procedures to be followed in carrying out such collection of evidence.
Rule 115 underpins article 57 which grants the power of the Pre-Trial Chamber to authorize the prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State. This is a highly controversial power since it intereferes with State sovereignty.  During the negotiations on Rule 115 the issue under debate concerned the obligation of the Court to communicate with the state before granting auhorization for an investigation (Friman, 2004, p. 196).
   There is no absolute requirement to communicate with the state concerned. Sub-rule 1 provides that the Pre-Trial Chamber shall, whenever possible, inform and invite views from the State Party concerned.
   Some of the same delegations that wanted an absolute requirement to communicate with the state concerned argued that the the prosecutor must show that the request is "well founded". For that  purpose, sub-rule 2 provides that when the Pre-Trial Chamber arrives at its determination whether to auhorize an investigation, it must find that the request is "well founded".

Cross-references
Article 57(3)(d)

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, p. 382,
2. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 507-509.
3. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 196-197.

Author:
Mark Klamberg

Updated:
20 August 2017

[207] 1. The Pre-Trial Chamber shall issue an order or seek cooperation under article 57, paragraph 3 (b), where it is satisfied:

(a) That such an order would facilitate the collection of evidence that may be material to the proper determination of the issues being adjudicated, or to the proper preparation of the person’s defence; and

(b) In a case of cooperation under Part 9, that sufficient information to comply with article 96, paragraph 2, has been provided.

2. Before taking a decision whether to issue an order or seek cooperation under article 57, paragraph 3 (b), the Pre-Trial Chamber may seek the views of the Prosecutor.
Rule 116 relate to article 57(3(b) which grants the Pre-Trial Chamber Powers to issue such orders, including measures such as those described in <link cmn-knowledge-hub icc-commentary-clicc rome-statute>Article 56, or seek such cooperation pursuant to <link cmn-knowledge-hub icc-commentary-clicc rome-statute>Part 9 as may be necessary to assist the person in the preparation of his or her defence. A key cocnern when drafting rule 166 was to avoid frivolous requests for co-operation but at the same time not make it too cumbersome for the Defence (Friman, 2004, p. 200).
   During the negotiations, one version of draft rule 116(1)(a) stated that “[t]he Pre-Trial Chamber shall issue an order under article 57, paragraph 3 (b), where it is satisfied: (i) That such an order will facilitate the collection of evidence that is material to the proper determination of the issues being adjudicated, or otherwise necessary to the proper presentation of the person’s defence" (emphasis added). This draft was reviewed and rejected in part because it was noted that the requirement that the request is "necessary" would be too cumbersome for the Defence and the standard for satisfying the Chamber was too high. Thus, in the final adopted version of the rule "is material" was changed to "may be material", "will facilitate" was changed to "would facilitate" and the word "necessary" was eliminated altogether.
   The final version of the rule 116(1)(a) did not address the fear of some that the Court may order what is known as “fishing-expeditions”, but this was dealt with in rule 116(1)(b) which read together with Rome Statute, article 96(2)(e) would make it possible for States not allowing “fishing expeditions” in their national criminal investigations to require more specific information.
     In Katanga and Ngudjolo, Decision on the Defence Application pursuant to Article 57(3)(b) of the Statute to Seek the Cooperation of the Democratic Republic of Congo (DRC), 25 April 2008, PTC I ruled that the Defence must first request documents and information which are likely to be in the possession or control of the Prosecution; and that the Defence of Germain Katanga in accordance with rule 77 of the Rules before seeking an order under article 57(3)(b).

Crossreference:
Article 57(3)(b)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, p.  398.
2. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 509-512.
3. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 199-201.

Author:
Mark Klamberg

Updated:
20 August 2017

[208] 1. The Court shall take measures to ensure that it is informed of the arrest of a person in response to a request made by the Court under article 89 or 92. Once so informed, the Court shall ensure that the person receives a copy of the arrest warrant issued by the Pre-Trial Chamber under article 58 and any relevant provisions of the Statute. The documents shall be made available in a language that the person fully understands and speaks.

2. At any time after arrest, the person may make a request to the Pre-Trial Chamber for the appointment of counsel to assist with proceedings before the Court and the Pre-Trial Chamber shall take a decision on such request.

3. A challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay.

4. When the competent authority of the custodial State notifies the Pre-Trial Chamber that a request for release has been made by the person arrested, in accordance with article 59, paragraph 5, the Pre-Trial Chamber shall provide its recommendations within any time limit set by the custodial State.

5. When the Pre-Trial Chamber is informed that the person has been granted interim release by the competent authority of the custodial State, the Pre-Trial Chamber shall inform the custodial State how and when it would like to receive periodic reports on the status of the interim release.

Rules 177 to 120 concerns various issues relating to procedures involving restriction and deprivation of liberty. Pursuant to article 59 a State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question. It is not for the State to consider whether the Court has properly issued the arrest warrant. Challenges pertaining to the arrest warrant shall always be dealt with by the Pre-Trial Chamber. Rule 117 elaborates on the proceedings Before the person has been surrendered to the Court and deals with issues that involve State cooperation regulated in Part 9 of the Rome Statute.
   In Prosecutor v. Barasa, ICC PT. Ch., Decision on the "Defence challenge to the warrant for the arrest of Walter Osapiri Barasa", ICC-01/09-01/13-35, 10 September 2015, Barasa requested that the warrant of arrest issued against him be withdrawn and replaced with a summons to appear. the PTC considered that "rule 117 does not become applicable until the person for whom a warrant of arrest has been issued is arrested by the requested State, i.e. until the person is detained in the custodial State" (para. 2).
  Sub-rule 1 concerns information to the Court in the event of an arrest pursuant to a warrant by the Court. It also contains a right for the person concerned to receive a copy of the arrest warrant issued by the Pre-Trial Chamber.
  Sub-rule 2 allows the Court to appoint of counsel to assist with proceedings before the Court. This provision is limited to persons already arrested at the request of the Court and to proceedings before the Court. The counsel may, for example, assist the person in challenging the arrest warrant vefore the person is surrendered to the Court (Friman, 2004, p. 204).
  Sub-rules 4 and 5 provides for Communication between the Court and the national authorities regarding interim release pending surrender (which is decided by the national authorities) and periodic reports after such a release. These provisions were drafted in a way not to impose new obligations for States Parties that coulkd require domestic legislation, for example the rules did not introduce time-limits (Friman, 2004, p. 204).

Crossreference:
Article 59

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp.  407 and 611.
2. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 204.
3. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 515-516.
4. Christopher K. Hall and Cedric Ryngaert, "Article 59", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1468-1470.

Author:
Mark Klamberg

Updated:
21 June 2018

[209] 1. If the person surrendered to the Court makes an initial request for interim release pending trial, either upon first appearance in accordance with rule 121 or subsequently, the Pre-Trial Chamber shall decide upon the request without delay, after seeking the views of the Prosecutor.

2. The Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days and may do so at any time on the request of the person or the Prosecutor.

3. After the first appearance, a request for interim release must be made in writing. The Prosecutor shall be given notice of such a request. The Pre-Trial Chamber shall decide after having received observations in writing of the Prosecutor and the detained person. The Pre-Trial Chamber may decide to hold a hearing, at the request of the Prosecutor or the detained person or on its own initiative. A hearing must be held at least once every year.
General remarks
Rule 118 concerns pre-trial detention at the seat of the Court. The main concern of this provision is interim release and periodical review whether to release or continue with the detention which stems from article 60(2) and (3). Article 60(4) provides that "[t]he Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor".
   There was insufficient support during the negotiations to specify exact time limits in the Rome Statute, this left for the Rules of Procedure and Evidence (Friman, 2004, pp. 204-205).
   The provision contains two time-limits: 1) if the person surrendered to the Court makes an initial request for interim release pending trial, either upon first appearance  or subsequently, the Pre-Trial Chamber shall decide upon the request without delay (sub-rule 1) and 2) The Pre-Trial Chamber shall review its ruling on the release or detention of a person, at least every 120 Days (sub-rule 2).
   The text of rule 118 only mentions the Pre-Trial Chamber. The Pre-Trial Chamber and the Trial Chamber have a division of work: the Pre-Trial Chamber performs all judicial functions until the confirmation of charges and the Trial Chamber is responsible for subsequent proceedings, see article 61(11). The Trial Chamber pmay exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings. Pursuant to article 64(4) the Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division.  
   In Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Application for the interim release of Thomas Lubanga Dyilo, ICC-01/04-01/06-586-tEN, 18 October 2006, the defence submitted its first application for interim release of Thomas Lubanga Dyilo’s interim release. The Pre-Trial Chamber considered "that since pre‐trial detention cannot be extended to an unreasonable degree; that reasonableness cannot be assessed in abstracto but depends on the particular features of each case; and that to assess the reasonableness of the detention, it is particularly important to assess the complexity of the case". The Pre-Trial Chamber rejected the Defence request for interim release. After 120 days PTC I, reviewed its ruling in Prosecutor v. Lubanga, ICC PT. Ch. I, Review of the "Decision on the Application for the Interim Release of Thomas Lubanga Dyilo", ICC-01/04-01/06-826, 14 February 2007, and decided that Thomas Lubanga Dyilo should continue to be detained.
    In Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", ICC-01/05-01/08-1019, 19 November 2010, para. 51, the Appeals Chamber clarified that while the Prosecutor does not have to re-establish circumstances that have already been established, he must show that there has been no change in those circumstances. In light of the above, a Chamber carrying out a periodic review of a ruling on detention under article 60 (3) of the Statute must satisfy itself that the conditions under article 58 (1) of the Statute, as required by article 60 (2) of the Statute, continue to be met (para. 52). The Appeals Chamber observed that the Trial Chamber did not refer to the circumstances underpinning the ruling on detention and indicate whether these circumstances persist or whether there has been a change. (para. 55) For the reasons stated above, the Appeals Chamber concluded that the Trial Chamber erred when, in carrying out a periodic review under article 60 (3) of the Statute, it failed to revert to the ruling on detention in the manner outlined above at paragraph 52 and, instead, restricted itself to only assessing the alleged new circumstances presented by Mr Bemba. (para. 57) As a consequence, tthe Appeals Chamber reversed the Impugned Decision. The matter was remanded to the Trial Chamber for a new review in light of paragraphs 40 to 56 of the judgment. Until, and subject to, that review, Mr Bemba was ordered to remain in detention. (para. 95)

Crossreference:
Article 60(2) and (3)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp.  408-409 and 412.
2. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 204-205.
3. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 517-518.
4. Karim A. A. Khan, "Article 60", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1479-1481.

Author:
Mark Klamberg

Updated:
21 June 2018

[210] 1. The Pre-Trial Chamber may set one or more conditions restricting liberty, including the following:

(a) The person must not travel beyond territorial limits set by the Pre-Trial Chamber without the explicit agreement of the Chamber;

(b) The person must not go to certain places or associate with certain persons as specified by the Pre-Trial Chamber;

(c) The person must not contact directly or indirectly victims or witnesses;

(d) The person must not engage in certain professional activities;

(e) The person must reside at a particular address as specified by the Pre-Trial Chamber;

(f) The person must respond when summoned by an authority or qualified person designated by the Pre-Trial Chamber;

(g) The person must post bond or provide real or personal security or surety, for which the amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber;

(h) The person must supply the Registrar with all identity documents, particularly his or her passport.

2. At the request of the person concerned or the Prosecutor or on its own initiative, the Pre-Trial Chamber may at any time decide to amend the conditions set pursuant to sub-rule 1.

3. Before imposing or amending any conditions restricting liberty, the Pre-Trial Chamber shall seek the views of the Prosecutor, the person concerned, any relevant State and victims that have communicated with the Court in that case and whom the Chamber considers could be at risk as a result of a release or conditions imposed.

4. If the Pre-Trial Chamber is convinced that the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person.

5. When the Pre-Trial Chamber issues a summons to appear pursuant to article 58, paragraph 7, and intends to set conditions restricting liberty, it shall ascertain the relevant provisions of the national law of the State receiving the summons. In a manner that is in keeping with the national law of the State receiving the summons, the Pre-Trial Chamber shall proceed in accordance with sub-rules 1, 2 and 3. If the Pre-Trial Chamber receives information that the person concerned has failed to comply with conditions imposed, it shall proceed in accordance with subrule 4.
General remarks
Pursuant to article 60(2)-(4) of the Rome Statute the Pre-Trial Chamber may as an alternative to pre-trial detention release the person with conditions. Such conditions may also be imposed when a summons to appear before the Court is issued pursuant to article 58(7). Rule 119 covers all cases when the Court may impose conditions restricting liberty.
   By using the words "including the following", rule 119 provides a non-exhaustive list of restrictions in relation to a conditional release.
  Sub-rule 3 provides that the Pre-Trial Chamber shall, before imposing or amending any conditions restricting liberty, seek the views of the Prosecutor, the person concerned, any relevant State and victims that have communicated with the Court in that case and whom the Chamber considers could be at risk as a result of a release or conditions imposed. In Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 27 June 2011 entitled "Decision on Applications for Provisional Release", ICC-01/05-01/08-1626-Red, 19 August 2011, para. 1, the Appeals Chamber found that "[i]f a Chamber is considering conditional release and a State has indicated its general willingness and ability to accept a detained person and enforce conditions, the Chamber must seek observations from that State as to its ability to enforce specific conditions identified by the Chamber."
  Sub-rule 4 clarifies that if the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person.
  Sub-rule 5 underpins article 58(7) and sets out procedures for handling of conditions for a summons to appear and the relationship between the Court and the State receiving the summons (Friman, 2001, p. 520).

Crossreference:
Article 58(7) and 60

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp.  181, 402, 409, 412, 647.
2. Håkan Friman, "The Rules of Procedure and Evidence in the Investigative Stage", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 206.
3. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 519-520.
4. Christopher K. Hall and Cedric Ryngaert, "Article 58", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1456.
5. Karim A. A. Khan, "Article 60", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1477.

Author:
Mark Klamberg

Updated:
21 June 2018

[211] Personal instruments of restraint shall not be used except as a precaution against escape, for the protection of the person in the custody of the Court and others or for other security reasons, and shall be removed when the person appears before a Chamber.
General remarks
Measures such as the use of instruments of restraint may be necessary to provide security and order in a custodial setting: to protect persons deprived of their liberty from inter-prisoner violence; for self-defence, to prevent selfharm and suicide; and to prevent escape (Penal Reform International and Association for the Prevention of Torture, Fact-sheet: Instruments of restraint, Addressing risk factors to prevent torture and ill-treatment, 2nd Edition, 2013).
   The European Committee for the Prevention of Torture holds that the resort to instruments of physical restraint involve "high risk situations insofar as the possible ill-treatment of prisoners is concerned, and as such call for specific safeguards." European Committee for the Prevention of Torture (CPT), 2nd General Report on the CPT’s activities 1 January – 31 December 1991, [CPT/Inf (92) 3], 13 April 1992, para. 53.
   Prohibitions and limitations of use, as well as the manner in which instruments of restraint may be applied, derive from the prohibition of torture and cruel, inhuman or degrading treatment or punishment, and from the obligation to respect and protect the human dignity of persons deprived of their Liberty (Penal Reform International and Association for the Prevention of Torture, Fact-sheet: Instruments of restraint, Addressing risk factors to prevent torture and ill-treatment, 2nd Edition, 2013).
   The use of restraints should be prescribed by law, and be restricted by the principles of necessity and proportionality, Article 3, Code of Conduct for Law Enforcement Officials; Rule 48 of the revised Standard Minimum Rules, UN General Assembly Resolution 70/175, United Nations Standard Minimum Rules for the Treatment of Prisoners, A/RES/70/175, 17 December 2012; for the application of these guiding principles on restraints see Report of the Special Rapporteur on Torture, 23 December 2003, E/CN.4/2004/56, paras. 45-46. 

Crossreference:
Article 60

Author:
Mark Klamberg

Updated:
21 June 2018

[212] General remarks
Rules 121 and 122 concern proceedings before and at the confirmation hearing. The rules were developed during several meetings and based upon detailed French proposals (Friman, p. 523).
   Rule 121 provides for procedural steps relating to disclosure, submission of charges and evidence that should take place before the confirmation hearing. Each step is accompanied by specific times limits in sub-rules 3-6 and 9.

Author:
Mark Klamberg

Updated:
29 June 2018

[212] General remarks
Rules 121 and 122 concern proceedings before and at the confirmation hearing. The rules were developed during several meetings and based upon detailed French proposals (Friman, p. 523).
   Rule 121 provides for procedural steps relating to disclosure, submission of charges and evidence that should take place before the confirmation hearing. Each step is accompanied by specific times limits in sub-rules 3-6 and 9.

Author:
Mark Klamberg

Updated:
29 June 2018

[213] 1. A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67. At this first appearance, the Pre-Trial Chamber shall set the date on which it intends to hold a hearing to confirm the charges. It shall ensure that this date, and any postponements under sub-rule 7, are made public.
One the person is surrendered to the court, he or she shall "promptly" appear before the Pre-Trial Chamber. In Prosecutor v. Lubanga, ICC PT. Ch. I, Order Scheduling the First Appearance of Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-38 17 March 2006, PTC I decided to hold a public hearing. Sub-rule 1 grants the rights under article 67 to a person subject to a warrant of arrest or a summons at the moment of the first appearence before the pre-trial chamber. 
  The rule adds upon article 61(1) which provides that Pre-Trial Chamber shall set the date oof the confirmation hearing "within a reasonable time after the person's surrender or voluntary appearance before the Court". This softened by sub-rule 7 which allows the Pre-Trial Chamber to postpone the date of the confirmation hearing.
   Important factors in setting the date for confirmation hearing is: i) the rights of the suspect to have adequate time to prepare for the confirmation hearing and to be tried without undue delay; ii) the particualrities of the case, including the need for the Prosecutor to prepare the case for the hearing; the number of suspects of the holding of paralellel pre-trial proceedings; the completeness of the Prosecutor's investigation (Schabas, Chaitidou and El Zeidy, pp. 1492-1493).

Author:
Mark Klamberg

Updated:
29 June 2018

[214] 2. In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure:

(a) The person concerned may be assisted or represented by the counsel of his or her choice or by a counsel assigned to him or her;

(b) The Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions. For each case, a judge of the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her own motion, or at the request of the Prosecutor or the person;

(c) All evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the Pre-Trial Chamber.
Sub-rule 2 deals with disclosure and status conferences. Rules 76-84 on disclosure apply to the pre-trial stage as well as the trial stage. The Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions.
   During the discussions leading to rule 121 it was agreed that evidence disclosed inter partes for the purpose of the confirmation hearing would also be communicated to the Pre-Trial Chamber. Brady describes that the purpose of this arrangement was that the Pre-Trial Chamber would better understand the issues, enhancing its abilities to make appropriate orders for disclosure, for the production of additional evidence and expediting the confirmation hearing. Delegations felt comfortable that no “infection” would arise since no finding of guilt results from the confirmation hearing (Brady, p. 424).
   The notion “all evidence” in sub-rule 2(c) may be interpreted either in a broad sense, i.e. all evidence disclosed or in a more narrow sense, i.e. all evidence on which the prosecution intends to rely at the confirmation hearing. In Lubanga Judge Steiner upheld the later interpretation. She also decided that exculpatory evidence and books, documents, photographs and other tangible objects in the possession or control of the prosecutor material to the Defence’s preparation for the confirmation hearing should not be communicated to the Pre-Trial Chamber (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, p. 5f and paras. 41, 50-51. See also Prosecutor v. Lubanga, ICC PT. Ch. I, Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information on Electronic Version for their Presentation During the Confirmation Hearing, ICC-01/04-01/06-360, 28 August 2006. In Katanga and Ngudjolo, Judge Steiner decided to follow the practices on disclosures that were set out for the purpose of the confirmation hearing in Lubanga (Prosecutor v. Katanga and Ngudjolo, (Case No. ICC-01/04-01/07), ICC PT. Ch. I, Transcript, 14 December 2007, 4 lines 14–22 making references to Lubanga, ICC PT. Ch. I, 15 May 2006, Lubanga, ICC PT. Ch. I, 19 May 2006 and Lubanga, ICC A. Ch., 13 October 2006). The majority in Abu Garda also opted for a narrow interpretation when it decided that the parties were not requested to communicate to the Chamber those materials subject to disclosure on which they do not intend to rely at the confirmation hearing. The majority emphasized the limited scope of the confirmation hearing, namely “not to find the truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued, but, rather, to determine whether sufficient evidence exists to establish substantial grounds to believe that the person committed each of the crimes charged (Prosecutor v. Abu Garda, ICC PT. Ch. I, 15 July 2009, paras. 9 and 1) 
   In comparison with Judge Steiner of PTC I in Lubanga, PTC III in Bemba chose to put much more emphasis on the objective of truth during disclosure prior to the confirmation hearing. Thus, PTC III in Bemba came to a different conclusion on the scope of communication to the Chamber, making it significantly wider in ordering the Prosecutor "to disclose to the defence through the Registry all evidence in the Prosecutor's possession or control under article 67(2) of the Statute as soon as practicable and on a continuous basis" (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. 11, 16 and 18 and page 24). Judge Trendafilova, a member of the Bemba Pre-Trial Chamber, repeated the same approach in Ruto et al. and Muthaura et al (Prosecutor v. Ruto et al., ICC PT. Ch. II, 6 April 2011, paras. 4 and 6; Prosecutor v. Muthaura et al., ICC PT. Ch. II, 6 April 2011, paras. 5 and 7).
   For the interim system established in the Lubanga case, see Prosecutor v Lubanga, ICC PT. Ch. I, Decision Requesting Observations of the Prosecution and the Duty Counsel for the Defence on the System of Disclosure and Establishing an Interim System of Disclosure, 23 March 2006, PTC I established an interim system of disclosure. In Prosecutor v Lubanga, ICC PT. Ch. I, Decision Requesting further Observations from the Prosecution and the Duty Counsel for the Defence on the System of Disclosure, 27 March 2006, PTC I considered that any request by the defence pursuant to articles 61 (3) and 67 (2) and rules 76, 77 and 121 of the Rules must be channelled through the Registry.

Author:
Mark Klamberg

Updated:
29 June 2018

[215] 3. The Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing.

4. Where the Prosecutor intends to amend the charges pursuant to article 61, paragraph 4, he or she shall notify the Pre-Trial Chamber and the person no later than 15 days before the date of the hearing of the amended charges together with a list of evidence that the Prosecutor intends to bring in support of those charges at the hearing.

5. Where the Prosecutor intends to present new evidence at the hearing, he or she shall provide the Pre-Trial Chamber and the person with a list of that evidence no later than 15 days before the date of the hearing.

6. If the person intends to present evidence under article 61, paragraph 6, he or she shall provide a list of that evidence to the Pre-Trial Chamber no later than 15 days before the date of the hearing. The Pre-Trial Chamber shall transmit the list to the Prosecutor without delay. The person shall provide a list of evidence that he or she intends to present in response to any amended charges or a new list of evidence provided by the Prosecutor.

7. The Prosecutor or the person may ask the Pre-Trial Chamber to postpone the date of the confirmation hearing. The Pre-Trial Chamber may also, on its own motion, decide to postpone the hearing.

8. The Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired.

9. The Prosecutor and the person may lodge written submissions with the Pre-Trial Chamber, on points of fact and on law, including grounds for excluding criminal responsibility set forth in article 31, paragraph 1, no later than three days before the date of the hearing. A copy of these submissions shall be transmitted immediately to the Prosecutor or the person, as the case may be.

10. The Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the person and victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.
Sub-rule 3 serves the purpose of guaranteeing the person adequate time and facilities for preparation of his or her defence. The Document Containg the Charges (DCC) need not "strictly follow the factual and legal Foundations" of an arrest warrant or summons to appears, since the Prosecution can continue its investigation and thus amend the charges (In Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the confirmation of charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 88; http://www.legal-tools.org/doc/264e1c/Ambos, p. 349). For an example of a submission of DCC, see Prosecutor v. Lubanga, Submission of the Document Containing the Charges pursuant to Article 61(3)(a) and of the List of Evidence pursuant to Rule 121(3), ICC-01/04-01/06-356, 28 August 2006 and Prosecutor v. Lubanga, Document Containing the Charges, Article 61(3) (a), ICC-01/04-01/06-356-Anx2, 28 August 2006.
     In Prosecutor v. Mbarushimana, Decision on the "Defence request to exclude the Prosecution's amended document containing the charges and amended list of evidence", 22 July 2011, the Prosecutor filed an "Addendum to the "Prosecution's document containing the charges and List of Evidence submitted pursuant to Article 61(3) and Rule 121(3)" 5 days after the expiry of the Deadline set in accordance with rule 121(3) of the Rules. At the first request of the defence, the Pre-Trial Chamber excluded the Prosecution's amended document containing the charges and amended list of evidence. However, the Pre-Trial Chamber considered it disproportionate to follow the second request of the defence to decline to receive the altered document containing the charges. Instead it ordered the Prosecutor to re-file the document containing the charges filed on the deadline set in accordance with rule 121(3), together with a version of this document containing tracked Changes.

Author:
Mark Klamberg

Updated:
29 June 2018

Crossreference:
<link cmn-knowledge-hub icc-commentary-clicc rome-statute internal-link internal link in current>Article 58, <link cmn-knowledge-hub icc-commentary-clicc rome-statute internal-link internal link in current>60 and 61
Rules 76-84

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Vol. III, Oxford University Press, Oxford, 2016, pp.  69, 143, 344, 346-347, 349, 354, 357-358, 385, 408, 418-420, 511-512, 521-524, 526-527, 529, 538, 540-541, 547.
2. Helen Brady, "Disclosure of Evidence", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 424.
3. Håkan Friman, "Investigation and Prosecution", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 521-525.
4. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 108, 277, 318-324.
5. Peter Lewis, "The Rules of Procedure and Evidence of the International Criminal Court: confirmation Hearing to Trial", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 220-223.
6. William A. Schabas, Eleni Chaitidou and Mohamed M. El Zeidy, "Article 61", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1492-1493.

Author:
Mark Klamberg

Updated:
29 June 2018

[216] Proccedings at the confirmation hearing in the presence of the person charged
General remarks
Rule 122 details the different phases of confirmation proceedings held in the presence of the suspect. In this regard, this rule provides for the consideration of jurisdiction or admissibility challenges, and of objections or observations prior to consideration of the merits pursuant to article 61 of the Rome Statute. Rule 122 also clarifies the evidentiary regime applicable during confirmation hearings.

Purpose of the proceedings
There must be consistency between the hearing itself and, in the eventuality of the confirmation of the charges, the proceedings held before the Trial Chamber. Hence, the procedural activities carried out for the purpose of the confirmation hearing must also aim at facilitating the preparation for trial in the event that the charges are confirmed [Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, para. 7].

Author:
Enrique Carnero Rojo

Updated:
6 September 2017

[217] 1. The Presiding Judge of the Pre-Trial Chamber shall ask the officer of the Registry assisting the Chamber to read out the charges as presented by the Prosecutor. The Presiding Judge shall determine how the hearing is to be conducted
Broad judicial discretion
Rule 122(1) confers broad discretion on the Presiding judge to determine how a confirmation hearing is to be conducted, including inter alia, how a witness shall be examined [Lubanga, ICC PT. Ch. I, 7 November 2006, p. 3].

Closed sessions
For the adequate protection of certain witnesses the confirmation hearing may be held partly in closed session [Lubanga, ICC PT. Ch. I, 7 November 2006, pp. 5 and 7].

Questions by judges
Additionally, rule 140(2)(c) also applies mutatis mutandis to pre-trial proceedings. Thus, in accordance with rule 140(2)(c), the Chamber may put questions to a witness before, during or after his/her examination by the Prosecution and the Defence [Lubanga, ICC PT. Ch. I, 7 November 2006, pp. 3 and 7].

Author:
Enrique Carnero Rojo

Updated:
6 September 2017

[218] and, in particular, may establish the order and the conditions under which he or she intends the evidence contained in the record of the proceedings to be presented
Communication of evidence to the Chamber
The rules on communication of certain evidence to the Pre-Trial Chamber aim at placing the Pre-Trial Chamber in a position to properly organise and conduct the confirmation hearing, which is best achieved by the Chamber having advance access to the evidence to be presented at the hearing [Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 34]. Moreover, access to all documents, materials and evidence filed in the record of the case is inherent to the jurisdictional functions of the Pre-Trial Chamber [Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 35]. The introduction of additional evidence by victims authorised to participate on which neither the Prosecution nor the Defence intend to rely (and that therefore is not part of the record of the case kept by the Registry) would i) distort the limited scope, as well as the object and purpose, of the confirmation hearing as defined by article 61 of the Statute and rules 121 and 122 of the Rules, and ii) inevitably delay the commencement of a confirmation hearing that, pursuant to article 61(1) of the Statute, must be held within a reasonable period of time after the suspect’s surrender or voluntary appearance before the Court. The introduction of additional evidence by victims would also infringe upon the Defence’s right not to rely on such materials for the purpose of the confirmation hearing [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 101-103].

Author:
Enrique Carnero Rojo

Updated:
6 September 2017

[219] 3. Before hearing the matter on the merits, the Presiding Judge of the Pre-Trial Chamber shall ask the Prosecutor and the person whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing.
The Pre-Trial Chambers usually request the Prosecution and the Defence to indicate before the confirmation hearing whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings pursuant to rule 122(3) of the Rules [Mbarushimana, ICC PT. Ch. I, 02 August 2011, p. 3].

Author:
Enrique Carnero Rojo

Updated:
6 September 2017

[220] 4. At no subsequent point may the objections and observations made under sub-rule 3 be raised or made again in the confirmation or trial proceedings
General rule: conduct of the proceedings not discussed later
Rule 122(3) and (4) of the Rules stipulates that objections and observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing shall be raised by the parties at the beginning of the confirmation hearing and such objections and observations shall, at no subsequent point, be raised or made again [Lubanga, ICC PT. Ch. I, 24 May 2007, para. 31].

Exceptions: admissibility and relevance of evidence
However, issues relating to the admissibility and relevance of evidence can always be raised by either party pursuant to article 64 of the Statute and rule 63 of the Rules according to which the Trial Chamber “shall have, inter alia, the power [to] rule on the admissibility or relevance of evidence”, and may therefore reassess Pre-Trial Chamber rulings on admissibility and relevance of evidence tendered at the pre-trial stage by the parties [Lubanga, ICC PT. Ch. I, 24 May 2007, para. 32].

Author:
Enrique Carnero Rojo

Updated:
6 September 2017

[221] 9. Subject to the provisions of article 61, article 69 shall apply mutatis mutandis at the confirmation hearing.
Power of the Chamber to assess the evidence
The Pre-Trial Chamber must evaluate the contested evidence and resolve any ambiguities, contradictions, inconsistencies or doubts as to credibility introduced by the contestation of the evidence inter alia because rule 122(9) of the Rules of Procedure and Evidence redirects to article 69(4) of the Statute, which states in particular that the Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence. These provisions all reflect a general authority on the part of the Pre-Trial Chamber to assess the evidence [Mbarushimana, ICC App. Ch., 30 May 2012, para. 41].

Free assessment of evidence by the Chamber
Pursuant to rule 122(9), the paramount principle of free assessment of evidence as enshrined in article 69(4) of the Statute and rule 63(2) of the Rules is equally applicable at the pre-trial and trial stages of the proceedings [Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 59] [Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 79].

Cross-references
Articles 61(5)-(6), 69
Rule 58

Doctrine
1. Håkan Friman, The Pre-Trial Phase – Part 5 of the Statute, in Lee, Roy S., et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, 520-525, Transnational Publishers, Ardsley, 2001.
2. M. Marchesiello, Proceedings before the Pre-Trial Chambers, Antonio Cassese, Paola Gaeta and John R.W.D. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, pp. 1242-1246, Oxford University Press, 2002, Vol. II.
3. Kuniji Shibahara, and William Schabas, "Article 61: Confirmation of the charges before trial", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, p. 1178, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, 2008.
4. Leïla Bourguiba, "Article 61: Confirmation des charges avant le procès", in Julian Fernandez and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, pp. 1395-1402, Pedone, Paris, 2012, Vol. II.
5. Enrique Carnero Rojo, "Rome Statute of the International Criminal Court – Article 61: Confirmation of the charges before trial", in Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, pp. 266-267, Larcier, Brussels, 2013.
6. Håkan Friman et al., "Charges", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, pp. 404-408, Oxford University Press, 2013.

Author:
Enrique Carnero Rojo

Updated:
6 September 2017

[222] Measures to ensure the presence of the person concerned at the confirmation hearing
General remarks
The confirmation hearing must, in principle, take place after the suspect has surrendered to the Court or been arrested. However, the suspect who has surrendered or been arrested is entitled to waive his right to be present during the confirmation hearing, pursuant to article 61(2)(a). Moreover, the charges against a suspect who has not appeared before the Court may be confirmed in his or her absence without a waiver (article 61(2)(b)). Rule 123 entitles the suspect to know about the occurence of the confirmation hearing and strengthens the suspect’s right to be represented by counsel during said hearing. In this regard, several procedural safeguards must be adopted pursuant to this rule in order to inform the suspect of the charges before the confirmation hearing, and to secure the suspect’s presence during said hearing. Said guarantees reinforce the understanding that confirmation hearings may be held in absentia, but only exceptionally.

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[223] 1. When a warrant of arrest or summons to appear in accordance with article 58, paragraph 7, has been issued for a person by the Pre-Trial Chamber and the person is arrested or served with the summons,(i) the Pre-Trial Chamber shall ensure that the person is notified of the provisions of article 61, paragraph 2.
i) Rule 123 – Presence of the suspect at the confirmation hearing
The presence of the accused is judged essential at every stage of the proceedings and a prerequisite for the holding of the trial (article 63(1) of the Statute). Although the confirmation hearing may in the circumstances specified in article 61(2) of the Statute (see also rule 125 of the Rules of Procedure and Evidence) be held in the absence of the person against whom the charges are levelled, such course must in the nature of things be an exceptional one. The arrest of a person is not intended as an aid to the investigation of a case but as a means of securing his/her appearance before the Court in proceedings sequential thereto [Lubanga, ICC App. Ch., 13 February 2007, paras. 2-3].

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[224] 2. The Pre-Trial Chamber may hold consultations with the Prosecutor, at the request of the latter or on its own initiative, in order to determine whether there is cause to hold a hearing on confirmation of charges under the conditions set forth in article 61, paragraph 2 (b).(ii) When the person concerned has a counsel known to the Court, the consultations shall be held in the presence of the counsel unless the Pre-Trial Chamber decides otherwise.
ii) Rule 123 – Cause to hold the confirmation hearing in absentia
In Kony et al., when one of several co-suspects was arrested, after consulting the Prosecutor on whether or not “there is cause to hold a hearing on confirmation of charges under the conditions set forth in article 61, paragraph 2(b)”, as dictated by rule 123(2) of the Rules, the Single Judge noted the reservations expressed by the Prosecutor and decided that there was no cause to proceed with the confirmation of charges proceedings against the other co-suspects in absentia because (i) the Court lacked the necessary resources to proceed against the other co-suspects in absentia; (ii) this course of action would have significant but unjustified budgetary implications; and (iii) should the charges be confirmed, and accordingly, the case proceed to trial, then only those victims linked to the charges against Mr. Ongwen would participate in trial, whereas victims linked to the charges concerning the other co-suspects who remain at large would not continue to participate in any trial proceedings [Kony et al., ICC PT. Ch. II, 6 February 2015, para. 7].

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[225] 3. The Pre-Trial Chamber shall ensure that a warrant of arrest for the person concerned has been issued and, if the warrant of arrest has not been executed within a reasonable period of time after the issuance of the warrant, that all reasonable measures have been taken to locate and arrest the person.

Cross-references
Articles 58(7), 61(2)(b)

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 525-528.
2. Håkan Friman et al., "Charges", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, p. 404.
3. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, 2016, p. 359.
4. William Schabas, The International Criminal Court: A Commentary on the Rome Statute, 2nd edition, Oxford University Press, 2016, pp. 929-930.

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[226] Waiver of the right to be present at the confirmation hearing
General remarks
The confirmation hearing must, in principle, take place after the suspect has surrendered to the Court or been arrested. However, the suspect who has surrendered or been arrested has the right to waive his or her right to be present during the hearing and may be allowed to observe it from outside the courtroom. The Pre-Trial Chamber retains full discretion to accept such waiver, although it must be satisfied that the suspect understands his or her right to be present at the hearing and the consequences of waiving this right.

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[227] 1. If the person concerned is available to the Court but wishes to waive the right to be present at the hearing on confirmation of charges, he or she shall submit a written request to the Pre-Trial Chamber,(i) which may then hold consultations with the Prosecutor and the person concerned, assisted or represented by his or her counsel.
i) Rule 124(1) – Written request for waiver
In order for the Pre-Trial Chamber to decide on whether the confirmation hearing may be held in absentia, the Chamber shall receive the written request on the basis of which it must satisfy itself that the suspects are fully aware of i) the rights they are entitled to pursuant to article 67 of the Statute; ii) the right to be present at the confirmation hearing; iii) the content of the Joint Submissions; iv) the consequences of waiving their right to attend the confirmation hearing as well as of the facts agreed between the Defence and the Prosecution [Katanga and Ngudjolo Chui, ICC PT. Ch. I, 11 July 2008, pp. 23-24; Banda and Jerbo, ICC PT. Ch. I, 22 October 2010, para. 10; Banda and Jerbo, ICC PT. Ch. I, 17 November 2010, paras. 1-4]. The written request must be personally executed by the suspect intending to waive his or her right to be present at the confirmation of charges and, as such, cannot be delegated to the Defence Counsel [Banda and Jerbo, ICC PT. Ch. I, 27 October 2010, para. 6].

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[228] 2. A confirmation hearing pursuant to article 61, paragraph 2 (a), shall only be held when the Pre-Trial Chamber is satisfied that the person concerned understands the right to be present at the hearing and the consequences of waiving this right.(ii)
ii) Rule 124(2) – Consequences of the waiver
While article 61(2)(a) of the Statute together with rules 124 and 125 of the Rules entitle a suspect, in principle, to waive his right to be present at the confirmation of charges hearing, they do not support a suspect picking and choosing the days he wishes to attend. On the contrary, rule 124(1) of the Rules speaks of “the person [who] wishes to waive the right to be present at the hearing on confirmation of charges [...]'', which entails the entire hearing and not part of it. This is equally true if one reads the plain wording of rule 125(1) of the Rules, which makes clear that once a decision is taken to hold a hearing in the absence of the person concerned, this will be for the entirety of the confirmation proceeding. Thus, nowhere in the text of these provisions is it stated that the person could skip parts of the hearing and attend the other. It follows that a suspect must either decide to be present during the whole proceeding or he may waive his right to be present throughout the entirety of the hearing [Ruto et al., ICC PT. Ch. II, 29 August 2011, para. 12].

3. The Pre-Trial Chamber may authorize and make provision for the person to observe the hearing from outside the courtroom through the use of communications technology, if required.

4. The waiving of the right to be present at the hearing does not prevent the Pre-Trial Chamber from receiving written observations on issues before the Chamber from the person concerned.

Cross-references
Article 61(2)(a)

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S. Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 529.
2. M. Marchesiello, "Proceedings before the Pre-Trial Chambers", Antionio Cassese, Paola Gaeta, and John R.W.D. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, pp. 1242-1246.
3. Kuniji Shibahara, and William Schabas, "Article 61: Confirmation of the charges before trial", Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, 2008, p. 1175.
4. Leïla Bourguiba, "Article 61: Confirmation des charges avant le procès", in Julian Fernandez and Xavier Pacreau, (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, pp. 1389-1394.
5. Enrique Carnero Rojo, "Rome Statute of the International Criminal Court – Article 61: Confirmation of the charges before trial", De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, pp. 260-262.
6. Håkan Friman et al., "Charges", Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, p. 406.
7. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, 2016, p. 359.

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[229] Decision to told the confirmation hearing in the absence of the person concerned
General remarks
The confirmation hearing must, in principle, take place after the suspect has surrendered to the Court or been arrested. However, said hearing may be held in the absence of the suspect if the latter has waived his or her right to be present during the hearing, has fled or cannot be found and all reasonable measures have been taken to locate and arrest the person. In these circumstances, unless the Chamber decides otherwise, the suspect may be represented by counsel during the confirmation hearing held in his or her absence. The suspect will be notified of the decision to hold the confirmation hearing in his or her absence unless the person is not available to the Court. Moreover, this rule expressly provides that if the Pre-Trial Chamber decides not to hold a confirmation hearing in the absence of the person concerned, and the person is not available to the Court, the confirmation of the charges may not take place until the person is available to the Court. However, criteria justifying holding confirmation proceedings in absentia could not be agreed during the negotiations of the Rules of Procedure and Evidence.

Author:
Enrique Carnero Rojo

Updated:
2 January 2018

[230] 1. After holding consultations under rules 123 and 124, the Pre-Trial Chamber shall decide whether there is cause to hold a hearing on confirmation of charges in the absence of the person concerned,(i) and in that case, whether the person may be represented by counsel. The Pre-Trial Chamber shall, when appropriate, set a date for the hearing and make the date public.
Rule 125 – Cause to hold the confirmation hearing in absentia
The Pre-Trial Chamber decides on whether the confirmation hearing may be held in absentia on the basis of (i) the written request personally executed by the suspect intending to waive his or her right to be present at the confirmation of charges hearing [Katanga and Ngudjolo Chui, ICC PT. Ch. I, 11 July 2008, pp. 23-24; Banda and Jerbo, ICC PT. Ch. I, 22 October 2010, para. 10; Banda and Jerbo, ICC PT. Ch. I, 27 October 2010, para. 6; Banda and Jerbo, ICC PT. Ch. I, 17 November 2010, paras. 1-4] and/or (ii) its consultations with the Prosecutor on whether there is a cause to proceed with the confirmation of charges proceedings against co-suspects in absentia [Kony et al., ICC PT. Ch. II, 6 February 2015, para. 7].

2. The decision of the Pre-Trial Chamber shall be notified to the Prosecutor and, if possible, to the person concerned or his or her counsel.

3. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is not available to the Court, the confirmation of charges may not take place until the person is available to the Court. The Pre-Trial Chamber may review its decision at any time, at the request of the Prosecutor or on its own initiative.

4. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is available to the Court, it shall order the person to appear.

Cross-references
Article 61(2)(b)
Rules 123, 124

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", Roy S. Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 529.
2. Håkan Friman et al., "Charges", Göran Sluiter (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, p. 404.
3. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, 2016, p. 359.

Author:
Enrique Carnero Rojo

Updated:
28 December 2017

[231] Confirmation hearing in the abscence of the person concerned
1. The provisions of rules 121 and 122 shall apply mutatis mutandis to the preparation for and holding of a hearing on confirmation of charges in the absence of the person concerned.

2. If the Pre-Trial Chamber has determined that the person concerned shall be represented by counsel, the counsel shall have the opportunity to exercise the rights of that person.

3. When the person who has fled is subsequently arrested and the Court has confirmed the charges upon which the Prosecutor intends to pursue the trial, the person charged shall be committed to the Trial Chamber established under article 61, paragraph 11. The person charged may request in writing that the Trial Chamber refer issues to the Pre-Trial Chamber that are necessary for the Chamber’s effective and fair functioning in accordance with article 64, paragraph 4.
General remarks
The procedural rules on confirmation hearings held in the presence of the suspect apply mutatis mutandis to confirmation hearings in absentia. Moreover, persons whose charges have been confirmed in their absence may request the Trial Chamber to refer said charges to the Pre-Trial Chamber in order to have them examined once again, this time in their presence.

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S.Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001,pp. 529-530.
2. Håkan Friman et al., "Charges", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, p. 404.

Author:
Enrique Carnero Rojo

Updated:
3 January 2018

[232] Procedure in the event of different decisions on multiple charges
General remarks
The charges filed by the Prosecution may be confirmed only in part. In said cases, the Pre-Trial Chamber may decide to refer the confirmed charges to the Trial Chamber and, instead of declining to confirm the remaining charges, continue working on them. As a consequence, the Pre-Trial Chamber may issue more than one decision on the charges submitted by the Prosecution. Alternatively, the Chamber may request the Prosecution to consider providing further evidence, conducting further investigations and/or amending the remaining charges within a given deadline. In these circumstances, the Chamber may decide not to commit the suspect for trial on the charges for which it has found sufficient evidence until it decides on the remaining charges.

Analysis
If the Pre-Trial Chamber is ready to confirm some of the charges but adjourns the hearing on other charges under article 61, paragraph 7 (c), it may decide that the committal of the person concerned to the Trial Chamber on the charges that it is ready to confirm shall be deferred pending the continuation of the hearing.(i) The Pre-Trial Chamber may then establish a time limit within which the Prosecutor may proceed in accordance with article 61, paragraph 7 (c) (i) or (ii).

Rule 127 – Continuation of the hearing
As to the phrase "with respect to a particular charge" in article 61(7)(c)(i) of the Statute, this phrase does allow for the Chamber to adjourn the Hearing with respect to one or more charges, including any element within the charge(s) in question. This interpretation also reconciles article 61(7)(c)(i) of the Statute with rule 127 of the Rules of Procedure and Evidence, which contemplates the possibility of adjourning the Hearing under article 61(7)(c) of the Statute with respect to multiple charges […] For these reasons, the Chamber, by majority, a) decides to adjourn the hearing, b) requests the Prosecutor to consider providing further evidence or conducting further investigation with respect to all charges […] g) decides that the 60-day period required for the issuance of the decision on the confirmation of charges will start running anew as of the date of receipt of the last written submission [L. Gbagbo and Blé Goudé, ICC PT. Ch. I, 3 June 2013, para. 14 and pp. 22, 24].

Cross-references
Article 61(7)(c)

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 531.
2. Leïla Bourguiba, "Article 61: Confirmation des charges avant le procès", in Julian Fernandez and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, p. 1411.
3. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, 2016, p. 362.

Author:
Enrique Carnero Rojo

Updated:
3 January 2018

[233] Amendment of the charges
General remarks
The charges confirmed by the Pre-Trial Chamber are specific crimes for which the Prosecution intends to bring a person to trial. However, investigations may continue after the charges have been confirmed and, as a consequence, the Prosecution may seek to modify the confirmed charges or add further charges thereto before the start of the trial [Lubanga, ICC App. Ch. I, 13 October 2006, para. 51]. The participants may be requested to make observations in this regard. If the Chamber determines that the suggested amendments amount to additional charges or more serious ones, a new confirmation hearing – with or without the presence of the person concerned – must be held before the Pre-Trial Chamber to decide whether said charges will proceed to trial. It is clear that new charges deserve an additional confirmation hearing. However, there is no indication in the Statute and the Rules of Procedure and Evidence as to the comparative seriousness of the crimes. In these circumstances, the preservation of the fair trial rights of the accused (especially the right to be informed promptly and in detail of the charges) may serve as guidance for the application of this rule. 
 

Author:
Enrique Carnero Rojo

Updated:
3 January 2018

[234] 1. If the Prosecutor seeks to amend charges already confirmed before the trial has begun, in accordance with article 61, the Prosecutor shall make a written request to the Pre-Trial Chamber, and that Chamber shall so notify the accused.

2. Before deciding whether to authorize the amendment, the Pre-Trial Chamber may request the accused and the Prosecutor to submit written observations on certain issues of fact or law.(i)Observations on requested amendment of the charges

Observations of the accused
Before deciding on whether or not to grant the permission requested by the Prosecution or to authorize the amendment sought under article 61(9) of the Statute, it may be appropriate to request the accused person(s) to submit written observations on the Prosecutor’s request, pursuant to rule 128(2) of the Rules [Kenyatta and Muthaura, ICC PT. Ch. II, 29 January 2013, para. 8]. 

Views of victim participants
Pursuant to rule 93, for some issues, such as the amendment of the charges (rule 128), the Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 [Kenyatta and Muthaura, ICC PT. Ch. II, 29 January 2013, para. 11].

3. If the Pre-Trial Chamber determines that the amendments proposed by the Prosecutor constitute additional or more serious charges, it shall proceed, as appropriate, in accordance with rules 121 and 122 or rules 123 to 126.

Cross-references
Article 61(9)
Rules 93, 121, 122, 123, 124, 125, 126

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 532.
2. M. Marchesiello, "Proceedings before the Pre-Trial Chambers", in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, pp. 1242-1246.
3. Kuniji Shibahara and William Schabas, "Article 61: Confirmation of the charges before trial", in Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, 2008, p. 1180.
4. Enrique Carnero Rojo, "Rome Statute of the International Criminal Court – Article 61: Confirmation of the charges before trial", in Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, p. 271.
5. Håkan Friman et al., "Charges", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, p. 422.
6. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, , Oxford University Press, 2016, pp. 418-419.

Author:
Enrique Carnero Rojo

Updated:
3 January 2018

[235] Notification of the decision on the confirmation of charges
General remarks
The decision on the confirmation of charges must be notified to the Prosecutor, the suspect and the suspect’s counsel. Since the confirmation hearing may also be held when the suspect is not available to the Court, the notification of the decision to the latter may not always be possible. Other participants in the confirmation hearing, such as victims and amici curiae, are notified as well. The decision and the record of the pre-trial proceedings are sent to the Presidency, which will in turn transmit them to the Trial Chamber assigned for conducting trial.

Analysis
The decision of the Pre-Trial Chamber on the confirmation of charges and the committal of the accused to the Trial Chamber shall be notified, if possible, to the Prosecutor, the person concerned and his or her counsel. Such decision and the record of the proceedings of the Pre-Trial Chamber shall be transmitted to the Presidency.

Cross-references
Article 61(11)

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 532.
2. Enrique Carnero Rojo, "Rome Statute of the International Criminal Court – Article 61: Confirmation of the charges before trial", in De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, p. 273.
3. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, 2016, pp. 362, 513.

Author:
Enrique Carnero Rojo

Updated: 
4 January 2018

[236] Constitution of the trial chamber
General remarks
The charges confirmed against a person are transmitted to an existing or a newly established Trial Chamber, which will decide on said charges.  For this purpose, the Trial Chamber receives from the Presidency the decision whereby the Pre-Trial Chamber confirmed the charges against the accused, as well as all the evidence previously communicated to the Pre-Trial Chamber. The Presidency only transmits to the Trial Chamber the evidence and the decision on the confirmation of charges after said decision becomes final, namely when no leave to appeal the decision has been granted or when all interlocutory appeals against it have been decided

Author:
Enrique Carnero Rojo

Updated: 
4 January 2018

[237] When the Presidency constitutes a Trial Chamber and refers the case to it, the Presidency shall transmit the decision of the Pre-Trial Chamber and the record of the proceedings to the Trial Chamber.(i) The Presidency may also refer the case to a previously constituted Trial Chamber.
Rule 130 – Transmission of the record of the proceedings to the Trial Chamber

Purpose of the transmission of the record
The transmission of the decision on the confirmation of charges is necessary to ensure that there is a complete understanding of the “statement of facts” underlying the charges confirmed by the Pre-Trial Chamber [Bemba, ICC T. Ch. III, 21 June 2010, para. 29]. The decision on the confirmation of charges is the only document than can serve as a reference during the trial proceedings and binds the Trial Chamber to the factual allegations in the charges [Katanga and Ngudjolo, ICC T. Ch. II, 29 October 2009, para. 16] [Bemba, ICC T. Ch. III, 21 June 2010, paras. 32-33]. Nonetheless, when the confirmation decision does not provide a readily accessible statement of the facts that underlie each confirmed charge, the confirmed document containing the charges must also be provided for the purposes of the trial [Bemba, ICC T. Ch. III, 21 June 2010, para. 30] or a summary of the changes confirmed may have to be prepared by the Prosecution [Katanga and Ngudjolo, ICC T. Ch. II, 29 October 2009, paras. 12-13 and 17]. Moreover, the transmission of the record includes all pending applications before the Pre-Trial Chamber, considering that there can be no gap in the proceedings nor can the proceeding be delayed [Lubanga, Presidency, 5 June 2007]. 

Responsibility for the transmission of the record
Responsibility for the transmission of the record lies with the Presidency in pursuance of the administrative or other functions entrusted to the Presidency as foreseen in article 38(3) of the Statute. As such, it is to the Presidency, and not to the Appeals Chamber, that any application to stay the transmission of the record should be made [Lubanga, ICC App. Ch., 9 March 2007, para. 8]. The duty to set up a Trial Chamber and to transmit the decision and record of the proceedings thereto placed upon the Presidency is mandatory and “cannot be the subject of judicial proceedings”, as well as the duty established by rule 130 of the Rules to transmit the record of the proceedings before the Pre-Trial Chamber to the Trial Chamber [Lubanga, ICC App. Ch., 9 March 2007, para. 9]. Consequently, there is no power conferred upon the Appeals Chamber to stop the Presidency as an organ of the Court established under the Statute from doing what the Statute mandates it to do.

Cross-references
Article 61(11)

Doctrine
1. Håkan Friman, "The Pre-Trial Phase – Part 5 of the Statute", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 532.
2. M. Marchesiello, "Proceedings before the Pre-Trial Chambers", in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, pp. 1242-1246.
3. Kuniji Shibahara and William Schabas, "Article 61: Confirmation of the charges before trial", in Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, 2008, p. 1181.
4. Leïla Bourguiba, "Article 61: Confirmation des charges avant le procès", Julian Fernandez and Xavier Pacreau, (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, pp. 1403, 1406.
5. Enrique Carnero Rojo, "Rome Statute of the International Criminal Court – Article 61: Confirmation of the charges before trial", De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, p. 273.
6. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, 2016, pp. 362, 513.

Author:
Enrique Carnero Rojo

Updated: 
4 January 2018