This section contains recommendations and comments on specific matter relating to the investigation and prosecution of cases before the ICC.
Article 54(2)[47(1)bis]: Notification of states [parties] and informing named individuals
· Recommendation: Delete the reference in Article 54(2)[47(1)bis] to states parties informing persons within their jurisdiction referred to in a submission to the Court that an investigation is about to commence. State parties should not, in general, inform such persons of an investigation to be initiated but should be obliged to treat as confidential the information provided by the Court.
Comment: Article 54(2)[47(1)bis] provides that the prosecutor shall notify state parties of any complaint or decision of the Security Council prior to initiating an investigation and that the states shall so inform persons within their jurisdiction who are referred to by name in the submission.223
States must be informed of an investigation in order to have the opportunity to challenge the exercise of the Court's jurisdiction on the basis of complementarity. However, every effort must be taken to minimize the risk of destruction of evidence and intimidation of victims and witnesses. Measures designed to counter such risks are set out in the context of Article 54[47].
The current obligation on state parties to inform the persons, such as the suspect, who may be named in the submission should be strongly opposed, due to the obvious risk that the suspect will abscond. In practice it would severely reduce the prospect of bringing criminals to justice and may expose witnesses to risk. Rather, the state should be under an obligation not to disclose the relevant information to named individuals, unless requested to do so by the Court.
While there is logic behind the need to inform states, so that a right to challenge may be exercisable, there is no justification for informing suspects or others at this preliminary stage. Persons named in a submission to the Court as responsible for crimes within its jurisdiction are not necessarily persons who will be "suspects" within the meaning of the statute. At a certain stage a person suspected of a crime must be informed of this fact, for example prior to being questioned. This and other rights of suspects and accused persons are protected at various points in the statute, according to the highest standards of criminal justice.224 Notification prior to investigation however, is not a right that should be protected, but rather is a threat which could seriously undermine the prospects of a successful investigation and which should be strongly opposed.
PRIORITIZING INVESTIGATIONS IN THE INTERESTS OF JUSTICE
Article 54(2)(b)(ii)bis[47(1 bis)(b)(ii)bis]: The prosecutor's power to prioritize as required by the interests of justice
· Recommendation: Afford the prosecutor the flexibility to decide whether an investigation would be in the interests of justice in a particular case, taking into account the gravity of the offense.
Comment: As the ICC will have jurisdiction only over very serious crimes, it is unlikely that the Court will be inundated with cases. It is, however, almost inevitable that at some stage it will be necessary for the prosecutor to prioritize complaints received. It is appropriate that he or she have the flexibility to do so, and to pursue the cases that are clearly most in the interests of justice, such as the more egregious over the less egregious crimes.
This does not, as certain delegates suggested during the August Preparatory Committee meeting, give the prosecutor unbridled discretion to pick and chose between cases. Any decision to pursue a case would of course be subject to the approval of the Pre-Trial Chamber of the Court under new Article 12[46], just as a decision of the prosecutor not to pursue an investigation would, under Article 54(8)[47(5)], also be subject to review by the Court.225 The power of any prosecutor, domestic or international, to prioritize his or her caseload is essentialto the efficient conduct of investigations and to ensure the prosecution of the most serious crimes without delay.
Moreover, the inclusion of this provision should adequately address the concern about the potential overloading of the court preventing it from being able to function. Finally, it should quash any suggestion that a threshold limiting the court's jurisdiction to crimes committed pursuant to a plan or policy is necessary to ensure that the Court can prosecute the most serious crimes.226
Article 54(4)[47](2): The prosecutor's power to conduct on-site investigations
· Recommendation: The statute must enable the prosecutor to conduct on site investigations without requiring the consent of any state party.
Comment: Article 54(4)(c)[47](2)(c)] provides various options in respect of the power to conduct on-site investigations and the consent that one of those options proposes as a pre-requisite for the exercise of that power. The power to conduct such investigations will be essential for the proper investigation of the crimes in question, and for the Court to satisfy itself that information on which it is basing its case is reliable. As such it go to the heart of ensuring fair prosecutions. Even in circumstances where the state is cooperating fully with the Court in the gathering of evidence, on-site investigations will nonetheless be important. The prosecutor, as the person responsible for the investigation, is best placed to know the necessary scope of the investigation and nature of evidence sought in the particular case.
The consent of states parties must not be a pre-requisite to an on-site investigation. State parties should not be able to withhold consent and hamper the prosecutor's ability to execute one of essential steps in an investigation. Under Part 9 of the statute,227 state parties have a clear duty to cooperate with the investigation and prosecution of crimes within the jurisdiction of the Court. Requiring their consent implies that there is not such an obligation.228
Pre-Trial chamber's ability to review the decision of the prosecutor to carry out an on-site investigation,229 in accordance with Option 2(ii) of 54(4)(c)[47](2)(c)], would safeguard against any possible abuse by the prosecutor of the power to conduct on-site investigations. While in fulfilment of its investigatory mandate the prosecutor's office may be subject to judicial review, it should not be dependant on the consent of any state party, neither as to whether nor when an onsite visit takes place. States should not be able to cause delay, and create opportunities for the flight of suspects or destruction of evidence. Should they do so, there should be no question as to their failure to meet their treaty obligations.
Consistent with the territorial sovereignty of the state, the prosecutor would, in general, be required to seek the consent of non-state parties in order to enter on their territory.230 Any provision in this context relating to state consent should therefore relate only to non state parties.
Article 54[47]: The preservation of evidence
· Recommendation: Support the inclusion of a provision in this part empowering a prosecutor to take measures to preserve evidence, as may prove necessary for the effective conduct of ICC proceedings. This power should be available at any stage of the investigation, or where the prosecutor has deferred or suspended investigation in accordance with the statute.
Comment: The prosecutor should have the power to preserve evidence as may prove necessary for the conduct of an effective ICC prosecution. The prosecutor must ensure that where it may be necessary to conduct ICC prosecution in the future, sufficient and reliable evidence will be available to do so.231 In thisrespect, we support the proposal submitted by one delegation,232 made in the context of Article 54(3)[47](1)ter, to the effect that where the prosecutor defers to national investigations, he or she should be able to take measures to preserve evidence. This provision would operate in the circumstances to which Article 55[48] and 56 [49] relate233 as well as 16[11 bis], and potentially in other circumstances where the Court's jurisdiction is suspended.234
The prosecutor would not take such a measure as a matter of course but only if it appears necessary, for example to prevent evidence being destroyed, lost or tampered with, or where testimony may no longer be available or reliable in the absence of the measures. To provide assurance against the improper use of this power, the Pre-Trial Chamber would review any decision by the prosecutor to take such measures, as provided for in Article 57[50](2)(iii).
INFORMATION REGARDING NATIONAL PROCEEDINGS
Article 55[48]: Information on national proceedings
· Recommendation: States parties should promptly inform the prosecutor about national investigations or proceedings undertaken with respect to the alleged commission of a crime within the jurisdiction of the Court.
Comment: Consistent with the general duty to cooperate with the Court, and the fact that the ICC may often be in position to assist national investigations into the crimes within its jurisdiction, state parties should share information with the ICC in relation to investigations covered by the scope of this article. Article 55[48] complements the provisions of Article 15[11] and Article 17[12] which frame the situations where the Court may exercise its jurisdiction in lieu of a national system that is unwilling or unable to effectively pursue prosecutions. In order to enable to the Court to do this, states should be obliged to provideinformation to the prosecutor, so that he or she (or, in the event of challenge, the Court) will be able to determine whether there are, in fact, genuine national proceedings and, if so, defer to the national jurisdiction. In order for the Court to determine whether its jurisdiction should be activated, on the basis that the national jurisdiction is "unable" or "unwilling" to effectively carry out investigation and prosecution, it must be able to obtain adequate information relating to national proceedings and should be supported. Where the information as to such investigations and prosecutions points to an absence of genuine proceedings, the prosecutor must be empowered to take up the matter. Should a state object to the ICC exercising its jurisdiction, there are adequate mechanisms for challenging the exercise of jurisdiction as set forth at Article 17[12] of the statute.
Article 56[49]: Deferral of an investigation by the prosecutor
· Recommendation: Support the inclusion of a provision to the effect that, where the prosecutor defers an investigation on the grounds of complementarity, states must make available to the prosecutor information on the proceedings to enable the prosecutor to determine whether the standard of complementarity is in fact being met by those proceedings. The above article should be amended to specify the state's obligation to provide all relevant information without delay.
Comment: The prosecutor must be empowered to obtain information on the ongoing status of national proceedings where, regarding a potential investigation or prosecution, an initial decision has been made to defer to national authorities. The provision as presently drafted refers to a "request" to the state but does not make clear the obligation on the state to comply with such a request. The wording of Article 56[49] should be imperative, making clear that the state shall provide the information in response to such a request. This is consistent with the general duty to cooperate fully with the Court in Article 85[77].
As in Article 55[48], some reference should be made to the nature of the information to be provided; it should, as in the previous article, be sufficiently full as to progress made in the investigation and prosecution of the case, to enable the prosecutor to decide whether there are genuine proceedings that meet the Article 15[11] threshold. If, in light of the information provided, the prosecutor decides that the ICC should proceed with the case, the state should be notified. Sufficient safeguards then exist in the draft statute at Article 17[12] forrelevant states to challenge this exercise of jurisdiction by the Court if they wish to do so.235
Article 57[50]
· Recommendation: The statute should clarify that the Pre-Trial Chamber has the authority to issue subpoenas and to make other orders relating to the investigation, and that such orders are binding upon state parties.
Comment: Article 57[50](2) provides a nonexhaustive list of the measures that the Pre-Trial Chamber may take to facilitate investigation and to protect the rights of the suspects. In the interests of clarity and consistency, this list should correspond with the powers of the Pre-Trial Chamber set out elsewhere in the statute. For example, Article 57 should include the power to issue subpoenas, as provided for in Article 54(4)[47(2)].
State cooperation in the enforcement of orders will be essential. Part IX of the statute deals only with state cooperation and compliance with requests from the Court, and Part X deals with enforcement of the judgments of the Court. The current draft statute does not address the critical question of cooperation in the enforcement of orders, such as subpoenas. Therefore, Article 57 should fill this gap, and clarify that orders of the Pre-Trial Chamber issued under this article are binding upon state parties.
Articles 58 to 61
During the March-April 1998 Preparatory Committee session, a proposal for an alternate text to Articles 51 to 54 of the Zutphen text (Article 58 to 61 of the current text) was proposed by several states.236 This document was incorporated into the April 14, 1998 consolidated text of the draft statute237 as a "Further Option for Articles 58 to 61" (hereinafter "the Further Option"). The general approach of the Further Option, which vests authority over most preliminary matters in the Pre-Trial Chamber, as opposed to the Presidency,should be supported. Decisions regarding the indictment confirmation, arrest, detention, interim release, and pretrial orders will have a significant impact on the basic rights of defendants. Accordingly, it is more appropriate for such decisions to be made by a collegiate body, exercising judicial functions, than by the Presidency.
The following recommendations and comments are offered on specific provisions of the consolidated text and, where appropriate, the Further Option. Citations of Articles 58 - 61 [51 - 54] generally relate to the consolidated text, except where otherwise indicated.
Article 58[51](2)
· Recommendation: The standard for confirming indictments should not impose an unreasonable burden on the Prosecutor. Determining the existence of a "prima facie" case, or that there is "sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged" are more appropriate than requiring the Pre-Trial Chamber to determine that "there is sufficient evidence that could justify a conviction of a suspect, if the evidence were not contradicted at trial," as contained in the current consolidated text.
Comment: Making confirmation of the indictment dependant on the prosecutor's ability to demonstrate "sufficient evidence that could justify a conviction of a suspect, if the evidence were not contradicted at trial" requires the prosecutor to establish the guilt of the suspect, even before all the witnesses have been interviewed and all the evidence has been collected. This standard would essentially call upon the Pre-Trial Chamber to make a preliminary judgment of the guilt of the person in question, and could bring into question the pre-judgment of the case by the Court.
The statutes for the International Tribunals for the former Yugoslavia and Rwanda provide that indictments shall be confirmed if the prosecutor has established a prima facie case.238 The standard contemplated by the Further Option requires "sufficient evidence to establish substantial grounds to believethat the person committed each of the crimes charged." These standards would be sufficiently rigorous to protect the suspect from groundless charges, while imposing a reasonable burden on the prosecutor.
ORDERS REGARDING THE CONDUCT OF TRIAL
Article 58(10)[51(5)]
· Recommendation: The current text should be retained, authorizing the Pre-Trial Chamber to make orders regarding the conduct of the trial "including, inter alia, orders requiring the disclosure of evidence to the defense, or providing for the protection of the accused, victims, witnesses, and confidential information."
Comment: Article 58(10) authorizes the Pre-Trial Chamber to make orders regarding important measures that would ensure fairness and due process in the conduct of the trial, including compelling the disclosure of evidence to the defense and providing for the protection and privacy of the accused, victims, and witnesses.239 The Further Option to Articles 58 - 61 omits this provision which should be included in the final text of the statute.
· Recommendation: The statute should recognize the prosecutor's duty to disclose relevant evidence to the defense while permitting the Court to review the disclosure and make appropriate orders.
Comment: The protection of the right of the accused to an adequate defense requires statutory recognition that the prosecutor has a duty to disclose all relevant evidence to the accused. As presently drafted, the Court may make an order as to disclosure. The statute should clarify that whether or not such an order is made, all information of potential relevance to the preparation of a defense must be made available to the accused. However, only potentially relevant evidence should have to be disclosed to the accused. To impose an obligation on the prosecutor to reveal all evidence gathered in the course of a complex investigation would be simply unworkable.
The proposal in Article 58(1)[51(5)] to empower the Pre-Trial Chamber to review disclosure, acting either on its own initiative or at the request of either party, should be supported. Such review may lead to an order by the Pre-Trial Chamber that the Prosecutor disclose further evidence to the defense. However, giving due consideration to the safety and privacy of witnesses and victims, the Pre-Trial Chamber should also be able to order the redaction of information (including the identity and whereabouts of victims and witnesses), when such information is unnecessary for the preparation of a defendant's case and its disclosure would jeopardize the security and well-being of individuals.
PRE-TRIAL ARREST AND DETENTION
Article 59[52](2)
· Recommendation: Any detention without charge should be as short as possible, and subject to a maximum period. The statute should be amended to explicitly provide that the suspect has a right to be released if she or he is not charged within the specified time period.
Comment: Article 9(2) of the ICCPR establishes "[a]nyone who is arrested shall be...promptly informed of any charges against him." When a suspect has not even been charged with a crime, there should therefore be very strict limitations on the period of pre-indictment detention, and the extension of such detention should be permitted only under exceptional circumstances.
A maximum time period should therefore be established, within which the indictment must be confirmed, as set forth in the current draft of Article 59[52](2). This time period should be kept as short as practicably possible. The restriction contained in Article 52(2), which permits the Pre-Trial Chamber to extend the period of pre-indictment detention only under exceptional circumstances and subject to strict time limits, is a valuable addition to the text.
The current draft statute fails, however, to specify that the suspect must be released upon the expiry of the relevant period, and given the importance of the rights concerned, this defect should be remedied.
ISSUING AN INTERNATIONAL ARREST WARRANT
Article 59(4)
· Recommendation: The Pre-Trial Chamber should have the power to take appropriate measures when an arrest warrant, issued under Article 59, has not been executed. Specifically, such measures should include the issuance of an international warrant for the arrest of the accused,240 delivered to all states and binding on state parties, or ordering the freezing of assets of the accused without prejudice to the rights of third parties. Where the prosecutor satisfies the Court that the failure to execute a warrant was due to the failure of a state party to cooperate with the Tribunal, the Court may so communicate to other state parties.241
Comment: The Court must develop a mechanism towards ensuring that accused persons cannot escape conviction by absconding or otherwise refusing to submit to the jurisdiction of the Court. The Court should be empowered to insist that all state parties share responsibility for bringing to trial those indicted by the Court. The adoption of this recommendation would mean that, in the event of an accused person being shielded from prosecution by the State on whose territory she or he is residing, the accused could be arrested on entering the territory of another state party to the treaty, or cooperative non-state party.
Article 60(4),(7)[53(3),(6)]
· Recommendation: Applications for interim release should be determined by the Pre-Trial Chamber, not national judicial authorities. The provision allowing appeals of determinations regarding release or detention should be retained.
Comment: The current text of Article 60(4) contains bracketed options allowing either national authorities or the Pre-Trial Chamber to determine whether a person should be released pending transfer to the Court. Attributing this role to national judicial authorities would undermine the authority of the Court on the crucial questions relating to the conduct of its proceedings. Competence overthe interpretation and application of this statute should be vested solely in the Court, and, therefore, any reexamination of the criteria in Article 59[52](1) justifying arrest should be the responsibility of an organ of the Court, such as the Pre-Trial Chamber, rather than a national judicial authority.
The Court must be committed to protecting personal liberty and providing mechanisms for full due process to ensure that any deprivation of liberty is justified. The Pre-Trial Chamber's decisions regarding detention and release, including decisions on applications for interim release either prior to or following transfer, must therefore be subject to appeal by either party, as provided for in Article 60(7)[53(6)]. The Further Option to Articles 58 - 61 does not contain any comparable provision. Delegates are urged to ensure the inclusion of a right to appeal this important decision.
Article 60(7)[53(6)](b)
· Recommendation: The statute should contain strict restrictions on pretrial detention. What constitutes a reasonable period of pretrial detention will vary depending on the nature of the particular case, but should be subject to a maximum period. The Court should only grant extensions of detention under exceptional circumstances, and for good reason.
Comment: Consistent with the fundamental nature of the right to liberty and security of the person, and of the presumption of innocence, pretrial detention should occur only exceptionally, and must be restricted.242 The accused can only be held for a "reasonable time"243 pending trial, or she or he has the right to be released. While a determination of what constitutes a "reasonable" period of detention can only be made on upon full consideration of the particularcircumstances of each case, and will vary from case to case we believe that setting a maximum period of detention is essential to protect the interests of the accused.244
For these reasons, the formulation in Article 60(7)[53(6)](b) which sets a maximum period for detention and permits an extension only upon a demonstration of good cause for the delay by the prosecutor, and subject to an absolute maximum. The initial period of one year does, however, appear excessive. The Further Option to Article 60(4), which addresses restrictions on pretrial detention, is vaguely formulated and fails to establish a maximum period for detention.245
Article 61(2) [54(1 bis)]
· Recommendation: The provision allowing for nondisclosure of indictments in extraordinary circumstances should be retained.
Comment:
The Court should adhere to the principle of transparency in judicial proceedings to the greatest extent possible. However, extraordinary circumstances may call for the sealing of indictments, such as when public disclosure of the indictment is likely to prompt the flight of the accused, or pose a threat to victims and witnesses. Rule 53 of the Rules of Procedure and Evidence for the ICTY allows for the non-disclosure of evidence if it is "required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice."
Proposed Article 61(2) appropriately gives authority to the Pre-Trial Chamber to order the nondisclosure of indictments under specified conditions. Detailedprovision may be included in the Rules, provided the statute reflects the principle that sealed indictments are permissible, albeit in exceptional circumstances.
223 To be consistent with the trigger mechanisms proposed above, this article should include reference to the decision to investigate ex officio.
224 See Article 54(10)[47(6)(a)] of the statute.
225 Article 54(8)[47(5)] refers to review by the Presidency or Pre-Trial Chamber.
226 See Section A, Part 1 of this document on the definition of war crimes to come within the jurisdiction of the Court.
227 See comment at Section N of this document.
228 Article 85[77] and 86[78] of Part 9 of the statute set out the states' duty to cooperate with the Court.
229 Such a power could be added to the functions specified under 57[50](2), as set out at the relevant section below.
230 This would not apply where the referral was by virtue of a decision of the Security Council.
231 We made arguments to this effect in the context of Article 16[11 bis], but believe it would appropriate to include this important power in the context of Article 54[47] relating to the investigative powers of the prosecutor.
232 See the proposal submitted to the March/April Preparatory Committee on 27 March 1998 by the delegation of France, A/AC249/1998/WG.4/DP37. The proposal related to Article 54(3) [47](1)ter.
233 See recommendations on Article 56 [49] in the following section on information concerning national proceedings
234 Human Rights Watch opposes the power of the Security Council to suspend an investigation as set out in the context of our commentary on Article 10. However, if the statute were to provide for circumstances in which such suspension of the Court's jurisdiction would occur, this provision on the preservation of evidence should operate.
235 See Article 17[12] "Challenges to jurisdiction."
236 This proposal was issued in document A/AC.249/1998/WG.4/DP.40.
238 Statute of the ICTY (Article 98), ICTR (Article 18).
239 Note that Article 57[50], which also refers to orders by the Pre-Trial Chamber, relates only to those orders that have bearing on the investigation.
240 This procedure was adopted by the International Criminal Tribunal for the Former Yugoslavia in Rule 61(d) and invoked by the Trial Chambers I and II in several cases.
241 The Statute of the Tribunal for the former Yugoslavia, in Rule 61 (A), (B), (D) and (E), contains provisions similar, though not identical, to those proposed above.
242 Article 9(3) the ICCPR states that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or release pending trial. It shall not be the general rule that persons awaiting trial shall be detained in custody." The Human Rights Committee has interpreted this as the right to a trial which produces a final judgment without undue delay (Adolfo Drescher Caldas v. Uruguay (43/1979) Selected Decisions, vol.2 at p. 81).
244 The Human Rights Committee has indicated on one occasion that a six month period from the date of detention to the conclusion of the trial may violate the Covenant. See the Report of the Forty-fifth Session Supplement no.40 (A/45/40), para 47, concerning pretrial detention in Democratic Yemen.
245 The Further Option to Article 60(4) reads as follows: "The Pre-Trial Chamber shall assure that a person is not detained for an unreasonable period prior to trial due to unexcusable delay by the Prosecutor. If such delay has occurred, the Court shall consider releasing the person pursuant to conditions."
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