Human Rights Watch
Commentary To The Preparatory Commission
Rules Of Evidence And Procedure For The International Criminal Court

Part 1

February 1999


The elaboration of principled and practical Rules of Evidence and Procedure (The Rules) is critical to the functioning of the International Criminal Court (ICC). The Rules must ensure that the Court can operate efficiently and effectively. They must protect the interests of witnesses who may put themselves at risk by cooperating with the Court, while guaranteeing respect for the rights of suspects and accused persons.

A: Investigation And Prosecution
B: Disclosure
C: The Trial
D: Evidence

While some guarantees should be specifically provided for in the Rules, delegates are urged not to unduly restrict the Court through exhaustively detailed Rules. A degree of judicial flexibility is essential to deal with the unforeseeable issues that will inevitably arise in the course of the Court's operation, and to ensure that justice is done in the circumstances of each particular case. The need for restraint in drawing up the Rules is particularly evident in light of the degree of detail already enshrined in the Rome Statute of the International Criminal Court (the statute), unlike the relatively skeletal statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).

Delegates should be aware of the impact that the Rules, like the statute, will have beyond the critical question of the functioning of the Court itself. The ICC's Rules will make an important contribution to international standard setting, being a potential point of reference for, and influence upon, national standards of justice. This underscores both the significance of the enterprise and the importance of conforming to international human rights law.

This paper provides recommendations and comments on parts 4, 5, 6 and 7 of the draft Rules of Procedure prepared by the delegation of Australia, which forms the basis of negotiations at the first meeting of the preparatory commission. While we recognize that the French delegation has also prepared a helpful paper, the references to the Draft Rules in this commentary are to the Australian draft. This document does not address the important issue of victim participation in proceedings, and reparations to victims. This is based on the understanding that consideration of such issues will not be addressed until the July preparatory commission session.




Article 60(4) of the ICC statute states 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." When this text went to the drafting committee of the Rome diplomatic conference on 24 June 1998 (a/conf183/c.1/wgpm/L.2) it was accompanied by a footnote that stated that "this time frame should be addressed in the Rules of Evidence and Procedure".

Comment: Consistent with the fundamental nature of the right to liberty and the presumption of innocence(2), pre-trial detention should be an exception(3) and as short as possible. It is well established that an accused person can only be held for a "reasonable time"(4) prior to conviction(5) or he or she has the right to be released(6). This should be reflected in the Rules, which should clarify that pre-trial detention should be no longer than strictly necessary and subject to a maximum specified period.

The Rules should also recognize the seriousness of the crimes that come within the ICC's jurisdiction, the complexity of the matters likely to be under investigation and the corresponding need for a degree of flexibility. On this basis, the Rules should reflect that exceptional circumstances may justify an extension of the time limit in the interests of justice. Such an extension should, however, be an exceptional measure, taken so far as the interests of justice strictly demand, and never exceed a reasonable period of time. The importance of the basic rights at stake demand that the accused be afforded the opportunity to challenge the decision to extend this period.

The time limits imposed in this section will clearly have to be matched by strict time limits on the obligations of states to provide the evidence upon which the Prosecutor may depend, and appropriate provisions on enforcement in the event of failure, under Part 9 of the statute.


Draft Rule 64; Article 61

Article 61(1) of the statute provides that "...within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial."

Comment: As noted above in the context of pre-trial detention, the fundamental nature of the rights at stake require that detention prior to conviction should be an exception and as short as possible. These underlying principles apply with all the more force in circumstances where the detained person has not even been charged with a crime. It is important that the period of pre-confirmation indictment detention be strictly limited as a safeguard against the arbitrary deprivation of liberty in circumstances when the prosecutor does not yet have sufficient evidence to justify the charges against the detainee.

What constitutes a "reasonable time"(7) under Article 61(1) should therefore be construed particularly narrowly. In this respect, regard should also be had to Article 9(2) of the International Covenant on Civil and Political Rights (ICCPR), which mandates that "[a]nyone who is arrested shall be informed, at the time of the arrest, of the reasons for his arrest(8), and shall be promptly informed of any charges against him (emphasis added)." In the ICC context, the moment at which the accused is informed of the 'charges' against him or her is the confirmation of the indictment; until that time there are no charges as such. In circumstances in which the suspect has been arrested, or is detained, confirmation of the indictment should therefore follow promptly upon arrest or detention.

It is important that the Rules clarify that the period of pre-indictment detention should be no longer than strictly necessary and subject to a maximum specified period. The specified period must be short, subject to the possibility of extension in exceptional cases where the interests of justice so demand. The Rules should attribute to the Court itself, not the prosecutor's office, the role of determining whether the interests of justice demand an extension in the particular case. The onus would therefore be on the Prosecutor to petition the Court for an extension, and both prosecutor and detainee should have the opportunity to make representations to the Court.


Rule 64; Article 61(3)(b)

Article 61(3) (b) provides that "within a reasonable time before the hearing, the person shall:

... Be informed of the evidence on which the Prosecutor intends to rely at the hearing."

Comment: This recommendation simply clarifies the purpose of the 'reasonable' time requirement in the statute, being reasonable time to prepare to respond to the charges against him or her. This would bring this rule into line with, for example, Draft Rule 67 which frames the duty to disclose information "sufficiently in advance of the trial to enable the adequate preparation of the defense."




Comment: Disclosure is essential to ensure that the accused has access to all information that may be relevant to the preparation of his or her defense, and that the Court, in turn, has before it all material relevant to its determination of guilt or innocence.

This recommendation is consistent with the ICC statute which states at Article 67(2) that the Prosecutor shall, as soon as possible, disclose to the defense "evidence in the Prosecutor's control which he or she believes shows or intends to show the innocence of the accused, or mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence." The recommended formula, which this instance replicates the standard in place at the ICTY(9), has the simple advantage of clarifying that evidence which "in any way" shows or tends to show innocence etc, ought to be disclosed. Given the importance of disclosure, this clarification is helpful. As currently drafted, Draft Rule 68, which refers to 'material to the preparation of the defense or which are intended to be used at trial', falls short of the statutory standard.

Legitimate concerns about the disclosure of information being seriously detrimental to ongoing investigations, or to the interests of victims or witnesses, can and should be addressed through specific rules to protect certain categories of information, as explained below.


Comment: It is essential to establish that the Prosecutor has a proactive duty to disclose. This duty corresponds with the accused's statutory right under Article 67(2) of the statute. Vis a vis the disclosure of witness statements, the duty is clearly expressed in Draft Rule 67. However, there is no rule clearly enshrining the obligation to disclose other material to which the accused may be entitled.(10) Rather, Draft Rule 68 envisages material being made available "on request".

The Rules should specify the duty incumbent upon the Prosecutor to bring to the attention of the accused the existence of material falling to be disclosed. As a practical matter the information may then be made available to the defense for inspection, rather than saddling the prosecutor with the onerous task of providing copies of potentially quite voluminous material. What is critical is that the Rules reflect that proper disclosure is a matter of prosecutorial obligation and defendant's right. The onus should not therefore be on the defense to trigger disclosure by asking about the existence of material that may be critical to his or her defense.

It is imperative that the obligation to disclose information that may affect the credibility of prosecution evidence is applied in a non-discriminatory manner. For example, experience in many national jurisdictions and recently at the ICTY indicates that gender-stereotyping can result in the testimony of women witnesses, particularly in cases of sexual assault, being questioned as per se less credible. As with all the Rules, potential problems of this nature can be avoided by ensuring that they are applied without distinction of any kind, such as gender, age, race, colour, language, religion or belief, political or other opinion, national ethnic or social origin, wealth, birth or other status(11).


Article 67 of the statute concludes by providing that "....In case of doubt as to the application of this paragraph the Court shall decide".

Comment: The non-disclosure of information could have serious detrimental consequences on the rights of the accused, while deciding to disclose notwithstanding concerns of victims or witnesses, for example, could be seriously harmful to their essential interests.

It is suggested that these potentially competing human rights interests would be better protected by a mechanism that endows the Pre-trial Chamber with a limited supervisory role. Clearly, a balance must be struck between the need for a check on the exercise of prosecutorial judgment as to disclosure, and the risk of over-burdening an already much utilized Pre-trial Chamber. The Chamber should not, therefore, be given the onerous duty of reviewing all material disclosed, or withheld from disclosure. Rather, we believe that a routine ex parte review, at which the prosecutors office is required to provide a brief account as to the nature of material it intends to disclose or withhold, and an explanation thereof, strikes the appropriate balance.

It is important that the prosecutor's obligation to go to the Court when any doubt arises as to disclosure be made express. The need for this rule (set out at recommendation 1 above) is not obviated by the establishment of the routine review mechanism (recommendation 2 above), as questions may arise at any stage of proceedings, including after the routine review has taken place. Clearly if questions arise before the routine review, the review will provide a mechanism by which to raise those concerns.

While recommendation 1, providing for an express prosecutorial duty to go before the Court is important, we suggest that it is in itself insufficient. It must be accompanied by the routine review mechanism (recommendation 2) to ensure that triggering the involvement of the Court does not depend entirely on a doubt arising in the mind of the Prosecutor. Inevitably, even capable and experienced prosecutor's acting in good faith will, on occasion, have different views as to whether or not information within their possession ought to be disclosed, or even raises any question as to disclosure(12). An automatic review by the Court, while no guarantee that problems will be detected, does provide some safeguard. It would, in practice, oblige the prosecutor to give careful consideration to what had and had not been disclosed, and may elicit questions on the part of the Pre-Trial Chamber as to the propriety of disclosure, on the basis of which appropriate orders can be issued.

Finally, it would provide a mechanism for representatives of victims and witnesses to make their representations to the Court, prior to disclosure. This is clearly an appropriate stage for such representations to be heard;(13) after disclosure, their representations may be futile. The prosecutor should keep the Victim and Witness Unit informed of developments throughout the pre-trial and trial period. Specifically, he or she should inform them, sufficiently in advance of the review mechanism, of the issues relating to disclosure that may have a bearing upon the interests of victims and witnesses. While such matters will often be able to be resolved between the Prosecutor and the witnesses' representatives, outstanding matters may need to be raised with the Court and orders sought under Article 68 of the statute. Witnesses or their representatives could attend the relevant part of the automatic review, allowing the Court to hear their representations and those of the prosecution. We suggest that the interests of efficiency would be served by combining judicial consideration of all matters relevant to pre-trial disclosure in one ex parte hearing.


Draft Rule 68; Article 67

Comment: The requirement of Article 67 of the statute to disclose relevant information "as soon as practicable," reflects Rule 66 of the ICTY. It is clear that the Prosecutor has a duty to disclose sufficiently in advance of trial to allow for the adequate preparation of the defense. While this is explicit in ICC Draft Rule 67 in respect of witness statements, similar wording is required in respect of other forms of disclosure.


Rule 67

Comment: The Court has the general power under Article 68 to take measures to protect the interest of victims and witnesses. While the Prosecutor must disclose all evidence of potential relevance to the defense, he or she should take into account questions of confidentiality in assessing the manner and timing of disclosure. For example, information could be withheld or redacted which is not itself subject to disclosure but would otherwise be disclosed alongside information which is, for example because it is part of a document containing both relevant and irrelevant information. Particular regard should be had to the non-disclosure of counseling or medical records containing sensitive information that would unduly infringe the privacy interests of witnesses, and may not be relevant to the accused's case.

Disclosure of the identity of witnesses is dealt with separately in the Rules, and is a matter of particular concern. Every effort must be taken to avoid jeopardizing the security of witnesses or damaging other essential interests as might result from pre-mature disclosure to the defence, or unnecessary public disclosure, of witness identity. For example, witness protection schemes, prior to, during and after trial, can help to minimize these risks. Consideration should therefore be given to delaying disclosure of identity until the witness is brought within the protection of the Court, provided witness identity, and all witness statements, are disclosed to the accused sufficiently far in advance of the evidence being introduced to allow adequate preparation of the defense. Moreover, measures of confidentiality can minimize the risks to and harm to the witness. Such measures should be imposed and be enforceable with strict penalties in the event of violation(16).


Draft Rule 69

Comment: Full and early disclosure serves the interest of the efficient and speedy administration of justice at trial. This applies to disclosure by the defense, as it does to prosecutorial disclosure. However, the Rules must reflect that the rights and duties of accused persons vis a vis the process are necessarily quite different from those of the Prosecutor, and in particular must not undermine the accused's human rights. Of particular relevance is the defendant's internationally respected right against self incrimination, enshrined in Article 14(2)(g) of the ICCPR. The Prosecutor has no such right. The defense must not therefore be obliged to disclose inculpatory evidence to the Prosecutor in contravention of this right. In this regard, it is worthy of note that the Prosecutor's duty to disclose relevant material is enshrined in the statute, whereas no such duty on the defense does or should exists.


Comment: As explained above, witness protection measures relevant to disclosure may be essential to the security and well-being of witnesses. The Rules must clarify that it is an offence to disclose, directly or indirectly, matters covered by an order of non-disclosure by the Court, on the basis of the grave endangerment to a witness(18), or for the protection of other interests(19).

The ICTY recently recognized the importance of such a rules, and amended it rules to provide that "any person who discloses information in knowing violation of an order of the Chamber...commits a contempt of the [Court]." (Sub-Rule 77(A)(iii) and (v))




Draft Rule 88: Video-link testimony

Comment: It is important that, in general, evidence be given in person at the seat of the Court, where witnesses, the defense and judges can all interact face to face. However, it is foreseeable that key witness may be unable or unwilling to attend. In this respect, the experience of the ICTY, which points to the viability of testimony-taking by video conference, is instructive. In their original incarnation, the ICTY Rules did not so provide, but in the light of jurisprudence that developed in response to the need for such measures, the Rules were duly amended. Rule 90(A) of the current ICTY Rules provide for testimony to be given by video link in exceptional circumstances and in the interests of justice, where the Chamber has so authorized.

In the Tadic case(20), the Trial Chamber set the following conditions: "...that the testimony of a witness is shown to be sufficiently important to make it unfair to proceed without it and that the witness is unable or unwilling to come to the International Tribunal." The Chamber went on to set out guidelines, which we suggest should assist delegates in the formulation of the relevant Rule for ICC purposes. They provided for an agreement to be reached between the parties as to an appropriate location, the appointment of a presiding officer to attend with the witness and ensure that the testimony is given freely and voluntarily, the use of technology that allows the witnesses to see his or her questioner, the judges and the defense, and vice versa, and that the rules relating to the solemn oath and perjury apply.

This rule should apply equally to witnesses for the prosecution and the defense. Fundamentally, the right to cross examination is essential and must not be compromised. This was emphasized in the Decision on the Motion to Allow Witnesses K, L, And M to Give Their Testimony by Means of Video-Link Conference, 28 May 1997, in the Delalic et al case(21). Applying the Tadic criteria, they added a third condition, that the accused must not be prejudiced in his or her right to confront the witness.

The ICTY has drawn attention to the fact that evidence given in this manner "may detract from the reliance placed upon his or her evidence", while noting that "it is a matter for the assessment of the Chamber when evaluating the evidence as a whole, to determine how credible each witness is."(22)

Draft Rule 88: Repetitive testimony

Comment: The experience of recalling their experiences of the atrocious crimes that fall within the Court's jurisdiction will often be a traumatic experience for witnesses, particularly where they are required to give the same testimony repeatedly, in relation to different defendants. Given the likelihood that, for example, multiple rape may be prosecuted before the ICC, account should be taken of the need to spare witnesses the trauma of having to testify against numerous defendants in the same or separate proceedings. This could be achieved by affording the judges discretion to admit witnesses' direct testimony in subsequent proceedings. The interest of justice are not compromised by allowing the prosecution, instead of examining in chief, to submit a recording of the testimony given before the Court in relation to other cases, so far as the facts are the same as those in issue in the present case. This should not infringe on the accused's ability to cross-examine these witnesses or the ability of either party to elicit new testimony.


Comment: Article 56 of the statute provides a role for the Pre-Trial Chamber where a unique investigative opportunity exists that may not be available at trial. The Rules that expand upon this article should, however, make clear that, where the taking of a deposition is authorized by the Pre-Trial Chamber, both parties have a right to attend and cross examine. Rule 71(c) of the ICTY Rules similarly provide for depositions to be authorized by the Tribunal. Rule 71(c) states that the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the person whose deposition is being taken."


Draft Rule 89; Article 68

Comment: Article 68 provides an essential power to the Court to take measures that may prove necessary to protect the interests of victims and witnesses. These measures may include in camera hearings, confidentiality to protect the identity of the witness form public disclosure, the use of pseudonyms etc. The statute establishes an important degree of flexibility to determine what measures may be necessary and appropriate, so far as consistent with the rights of the accused, and delegates should refrain from attempts to draw up exhaustive lists of any such measures. It should be made clear, however, that where such measures are sought, the hearing to determination whether or not such measures are necessary should be held in camera.


Draft Rule 90

Comment: The current draft of Rule 90 correctly states that the trial chamber "shall exercise control over the mode and manner of as to... make the interrogation effective for ascertaining the truth and to avoid the needless consumption of time." It is, however, also an essential function of the Chamber to intervene to protect witnesses from hostile cross examination amounting to harassment or intimidation. This is particularly important given the often traumatic nature of the experiences which the witnesses will have to recount to the Court in the course of testifying, and will be a particular concern in cases involving sexual violence or where the witness is a child. Ultimately this very basic measure of witness protection is essential not only to ascertaining the truth and to preventing traumatization of the witness in question, but also to securing the cooperation of future witnesses, upon whom the Court will depend for its ability to administer justice. In exercising this power, of course, the Court should demonstarte full regard for the accused's right to rigourous cross-examination.


Draft Rule 91

Comment: Witnesses should not be bound to answer questions that would incriminate themselves. The right not to testify against oneself is enshrined in Article 14(2)(g) of the ICCPR, a basic right which should be reflected in the Rules.




Draft Rule 99

Comment: The presumption of innocence is one of the most basic human rights, enshrined in many human rights instruments, including Article 11 of the Universal Declaration of Human Rights. Admitting evidence of prior criminal activity of the accused, even with a view to demonstrating a consistent pattern of behavior puts in serious jeopardy this fundamental principle and should be opposed. Such considerations may be brought to bear at the sentencing stage, but conduct not connected to the commission of the crime with which the person is charged must not be introduced as a factor to determine guilt or innocence in respect of their crime.


Draft Rule 108

Draft Rule 108 is identical to ICTY Rule 97 in only recognising the lawyer client privilege. However, the footnote that went to the drafting committee in Rome stated that other privileges should be considered and that "these may include privileges relative to doctor-patient, lawyer-client and priest-penitent relationships and other similar privileges."

Comment: Many of the same considerations that compel the inclusion of a legal professional privilege call for recognition of other types of relationship. Many legal systems recognize the need for privileges to protect the right of people to confide freely and fully, without fear of repercussions, in people offering certain categories of professional, psychological or spiritual help.(23) A person should be able to confide in his or her counselor, for example, without the content of those confidences being subject to disclosure. This privilege may be waived by the accused person.

The right to private and family life necessitates that a degree of privacy should surround familial communication, and that one spouse should not be obliged to testify against another, just as parents against children and vice versa. The right to refuse to testify attaches to the potential witness, and it is he or she who choses to exercise or to waive the right.

1. 1 Article 60(4) of the statute

2. 2 The Inter-American Commission of Human Rights, in the case of Jorge A. Gimenez (11.245 (1996)), noted that Argentina's pre-trial detention of a suspect for more than four years violated, inter alia, the fundamental right to the presumption of innocence.

3. 3 Article 9(3) of the ICCPR states that A[i]t shall not be the general rule that persons awaiting trial shall be detained in custody...."

4. 4 Article 9(3) the ICCPR states that "[A]nyone arrested or detained on a criminal charge ... shall be entitled to trial within a reasonable time or to release." What constitutes a reasonable time will depend on the circumstances of the case. See for example, the report of the Forty fifth session Supplement no.40 (A/45/40), vol para 47, concerning pre-trial detention in Democratic Yemen, and Fillastre v.Bolivia, Communication number 336/1988 (1991).

5. 5The Human Rights Committee has interpreted Article 9(3) 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).

6. 6 Note that article 9(3) provides for the right to trial within a reasonable time or release.

7. 7 Article 61(1) of the Statute

8. 8The requirement to inform the accused of the reasons for his or her arrest are met in Article 60(1) of the statute, which provides for the accused to be informed of the crimes which he or she is alleged to have committed

9. 9 ICTY Rule 68, entitled " the disclosure of exculpatory evidence, states that "[t]he prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or which may affect the credibility of prosecution evidence."

10. 10 See Article 67(2) and the Rule recommended above

11. 11 Article 21(3) of the statute states that the application of law must be consistent with internationally recognized human rights, and be without adverse distinction on grounds such as those set out above.

12. 12 See the decision of the Trial chamber of the ICTY in the case of The Prosecutor v. Anto Furundzija, 16 July 1998, IT-95-17/1-T

13. 13 Article 68(3) empowers the Court to permit the views of victims to be heard, when their personal interests are directly affected.

14. 14Article 67

15. 15Article 68(1) of the statute states that "[t]he Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses."

16. 16 See recommendation below concerning offences against the Court

17. 17 Articles 70 and 71 , dealing with such offences and penalties may not be dealt with until Part 6 of the Draft Rules are considered, in which case this issue should be flagged for future consideration.

18. 18 See Article 68(5) of the statute

19. 19 See Article 68(1) of the statute

20. 20 The Tadic case, IT-94-1-T. Decision on the Defence Motion to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link, 25 June 1996.

21. 21 The Delalic et al case, IT-96-21-T. Decision on the Motion to Allow Witnesses K, L And M to Give Their Testimony by way of Video-Link Conference.

22. 22 Delalic et al, Decision on the Motion to Allow Witnesses K, L And M to Give Their Testimony by way of Video-Link Conferenc, supra, at paragraph 18

23. 23 In the United States, attorney-client, physician-patient, psychotherapist -patient, spousal and religious privileges are widely applicable, while the parent-child privilege is recognized in a few jurisdictions. (See Michael Martin, Basic problems of Evidence, sixth edition). In the Federal Republic of Germany recognizes broad categories of privilege including but going beyond all of those covered by the recommendation. (See the German Code of Criminal Procedure ("Strafprozessordnung"), Section 52.