Both legal and policy reasons dictate that the relevant standard is not only whether the accused actually "knew"⁽³⁹⁾ that the disproportionate damage would result, but whether he or she recklessly failed to take feasible steps to know, that is, whether he or she failed to ascertain the nature of the target and to understand the likely consequences of attack. To allow the fact that the accused did not know to be sufficient per se to negate the mental element would undermine the duty to take all feasible precautions to avoid or minimize civilian losses.⁽⁴⁰⁾ What is 'feasible' is a question of fact for the Court that will depend on all the circumstances of the case.⁽⁴¹⁾

Statutory Language

Recommendation: In the interests of clarity, the Elements should reflect the categories of loss and damage in the Statute, namely "incidental loss of life, injury to civilians, damage to civilian objects or widespread long-term and severe damage to the natural environment ...."

Comment: The U.S. paper omits the Rome Statute's element of "incidental loss of life" to civilians drawn from Article 51(5)(b) of Protocol I of the Additional Geneva Convention of 1949.⁽⁴²⁾ It also adds reference to 'collateral' damage to civilian objects. In the interests of clarity and consistency, the statutory language should be preferred.

Article 8.2(b)(vi): Killing or Wounding a Surrendered Combatant

"...(vi) Killing or wounding a combatant who...has surrendered at discretion;"

Wounding a Combatant

Recommendation: The Elements should reflect that the crime involves "killing or wounding a combatant who, having laid down his arms or having no longer any means of defence, has surrendered at discretion."

Comment: The U.S. paper only provides that the elements of the crime of murder, contained in the grave breaches section, should also apply to the crime in Article 8.2(b)(vi). By requiring that "the accused killed or caused death", it excludes the wounding of a combatant, which is a part of the statutory definition.

Article 8.2(b)(viii): Transfer or Deportation of the Civilian Population

"...(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside the territory;".

Part of the Population

Recommendation: There should be no requirement that the transfer of part of the population be "on a large scale." It should be up to the Court in particular cases to judge whether a transfer involved sufficient persons to constitute a "part" of the population.

Comment: Article 8.2 (b)(viii) of the Statute tracks the language of Article 49 of the Fourth Geneva Convention and prohibits transfers of "part of the population." The inclusion in the U.S. paper⁽⁴³⁾ of a requirement that the transfer take place "on a large scale" is an arbitrary attempt to limit the crime further and should be opposed.

Consequence

Recommendation: There should be no required consequences beyond the transfer or deportation provided for in the Statute.

Comment: The U.S. paper imposes a substantial 'effect' requirement not found in the Rome Statute or elsewhere in international law, namely the transfer must have "worsened the economic situation of the local population and endangered their separate identity." Such consequences may result from this crime, and the wording in the U.S. paper reflects a passing observation in the Commentary to the Fourth Geneva Convention that during the Second World War transfers had this effect.⁽⁴⁴⁾ There is however nothing, in the Commentary or elsewhere, to support the view that these consequences are a necessary element of the crime.

Moreover, this approach poses an enormous hurdle to the effective prosecution of these crimes. Requiring that the prosecution prove the separate identity of the population, the endangerment of that identity, and economic disadvantage to the population, would in practice make the prosecution of illegal transfers or deportations almost impossible. Delegates are urged not to include elements that are not supported by international law and would impede the Court's ability to discharge its mandate.

Citizenship

Recommendation: There should be no reference to "occupying power citizens" or "transfer of nationals" in the definition of the war crime of transfering parts of the occupying Power's population to occupied territory.

Comment: The U.S. paper refers to "Transferring Occupying Power Citizens" and refers to the transfer of "nationals," terms that are not found in the statutory definition, which refers only to the "population" of the occupying power. Nationality of those transferred or deported is irrelevant to these crimes, and the addition of this element would unduly narrow the ambit of the offense.⁽⁴⁵⁾

Lawfulness of Residence

Recommendation: There should be no reference to a person's "lawful place of residence" in the Elements.

Comment: In Article 8.2(a)(vii), the U.S. paper prohibits the deportation of "one or more persons from their lawful place of residence." This is a significant departure from the Statute, and one that is not supported by the body of international law.⁽⁴⁶⁾

Moreover, references to 'lawfulness' raise the question as to what is the relevant law. If the intention is to apply the sources of law as set out in Article 21 of the Statute, this should be made clear. International law may not assist in this respect, yet to allow the promulgation of national laws dispossessing persons to thereby justify their transfer or deportation would be to create an unacceptable loophole. It would also be inconsistent with the fundamental principle of international law, that a state cannot invoke its own law to justify non-compliance with its international obligations.⁽⁴⁷⁾

Article 8.2(b)(ix) and 8.2(e)(iv): Attacking Protected Objects

"...(iv) Intentionally directing attacks against buildings dedicated to religion, education, art ... provided they are not military objectives;"

Buildings Dedicated to Education

Recommendation: Add "buildings dedicated to education" to the list of protected objects.

Comment: Article 8.2(b)(ix) and 8.2(e)(iv) of the Rome Statute includes buildings dedicated to education in the list of protected objects. The protection of buildings used for the purpose of educating the civilian population is essential to the well-being of that population, and of children in particular, who are entitled to special respect and protection.⁽⁴⁸⁾ The quoted statutory language should be reflected in the elements listed for these articles.

Article 8.2(b)(xvii): Employing Poison

"...Employing poison or poisoned weapons;"

Article 8.2(b)(xviii): Employing Poison or Asphyxiating or Other Gases

"...Employing asphyxiating poisonous or other gases and all analogous liquids, materials or devices;"

Definition of Poison

Recommendation: Any elaboration on the meaning of poison or poisoned weapon must be consistent with international law and standards. As such, any attempt to restrict the Court's purview to those weapons that are "specifically designed to cause death" should be rejected.

Comment: The Court's jurisdiction over prohibited weapons and substances, as provided for in Article 8 of the Statute, is extremely limited. In the final stages of the Rome conference the categories of prohibited weapons falling within the Court's purview was cut considerably, and the weapons provision relating to crimes committed in non-international armed conflict excluded entirely. Care should be taken not to further limit the Court's jurisdiction through unjustifiably restrictive definitions or elements.

In the terminology section of the U.S. paper, poison is defined as "any substance specifically designed to cause death through the toxic properties of toxic chemicals or agents which would be released as a result of the employment of munitions or devices."

To require that the substance be "specifically designed to cause death" only partially reflects existing international law. While certain early instruments prohibiting the use of these weapons provide no greater specificity than is contained in the Statute,⁽⁴⁹⁾ the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons 1993 defines "toxic chemicals" as "[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals."⁽⁵⁰⁾ These are banned by the Convention in their own right, as well as "[m]unitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals."⁽⁵¹⁾

In this regard it should also be noted that -- contrary to the exclusion in the U.S. paper -- riot control agents designed to cause only temporary incapacitation do fall within the weapons banned by this Convention and should be included in the definition of poison or poisonous weapons.⁽⁵²⁾

Article 8.2(b)(xvii): Employing Poison

Article 8.2(b)(xviii): Employing Poison of Asphyxiating or Other Gases and

Article 8.2(b)(xix): Employing Expanding Bullets

Knowledge of the Weapon's Illegality

Recommendation: There should be no element requiring that the accused was aware of the weapon's prohibited status.

Comment: Ignorance as to whether conduct is a crime within the jurisdiction of the Court is not a permissible defense under the Statute.⁽⁵³⁾ It should not be introduced as such through the elements of offenses, by allowing an accused to claim his or her lack of knowledge of the prohibited status of a particular weapon. As noted above, the list of weapons within the Court's purview is extremely limited and restricted only to weapons which have been prohibited by international instruments and customary international law for many years.⁽⁵⁴⁾ It would be particularly unjustifiable to allow reliance on ignorance of long-established prohibitions to preclude the Court's jurisdiction.

Article 8.2(b)(xxii): Crimes of Sexual Violence

"... (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

Nota Bene: It should be noted that crimes of sexual violence may be constituent acts of genocide, torture, mutilation, medical or scientific experimentation, or other crimes against persons under articles 5 through 8 of the Statute. The recommendations and comments below relate only to their definition as elements of specific war crimes in Article 8(b)(xxii).

RAPE

Recommendation: The Elements should reflect that rape is physical invasion of a sexual nature of a person under circumstances that are coercive. There should be no element requiring penetration committed by force.

Comment: The proposed element is taken directly from the case of The Prosecutor v. Akayesu.⁽⁵⁵⁾

The Elements elaborated should cover the insertion, however slight, under conditions of coercion, of any object, including but not limited to a penis, into a victim's vagina or anus; or the insertion under conditions of coercion, of a penis into any part of the body of the victim.⁽⁵⁶⁾ The degree of invasion or penetration is not considered relevant. It is suggested that the Elements should avoid the use of the term penetration, a concept rooted in social preoccupation with women's chastity and ascertaining paternity of children, that tends to shift the focus to honor rather than the integrity of the person. Consistent with the approach in the Akayesu case, the use of the term invasion, or the use of insertion, are considered preferable. It is also important that the Elements be gender neutral, providing redress for male victims of rape.

Some element of coercion is necessary for the crime of rape. Coercion should, however, be understood to cover not only circumstances in which a woman overtly resists or refuses consent, but where coercive circumstances exist that vitiate consent to any sexual act. Coercive circumstances should exist as a matter of law if (a) the victim is unlawfully detained, whether formally, e.g., rape camps, death camps, forced labor camps; or informally, e.g., under armed guard in the basement of a house; (b) the victim is unable to consent because of lack of mental or physical faculty; (c) the victim is attacked during combat; or (d) the victim is enslaved. Moreover, coercive circumstances may arise in any situation where there is "force or threats of

force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subject to violence, detention, duress or psychological oppression."⁽⁵⁷⁾

OTHER FORMS OF SEXUAL VIOLENCE

Recommendation 1: The Elements should not seek to restrict the forms of sexual violence over which the Court might exercise jurisdiction consistently with the Statute.

Recommendation 2: The Elements should reflect the approach to coercive circumstances outlined above.

Recommendation 3: There should be no reference to sexual violence having to be comparable to rape.

Comment: The ICTR in the Akayesu case defined sexual violence as "any act of a sexual nature committed on a person under circumstances which are coercive."⁽⁵⁸⁾ Sexual violence may take many forms in addition to those specifically enumerated in the Statute, including but not limited to, sexual mutilation, forced or coerced performance of sexual acts between victims, forced or coerced sexual entertainment, and forced or coerced nudity.

The U.S. paper includes a requirement that the act have "involved a level of violence comparable to that of rape," which is not justified by the Statute. The Statute does refer to "any other form of sexual violence also constituting a grave breach of the Geneva Conventions" but grave breaches are clearly a broader category than rape, including torture or willfully causing great suffering, for example.

SEXUAL SLAVERY

Recommendation: Committing the crime of sexual slavery should be defined as the exercise of any or all of the powers attaching to ownership of a person and obtaining of sexual services from the enslaved person or subjecting the enslaved person to any form of sexual violence or abuse. The Rule should apply equally to men, women and children.

Comment: The critical hallmarks of slavery for this purpose are the limitations on autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Practices of slavery have also been defined as "the extraction of work or services from any woman or the appropriation of the legal identity and/or physical person of any woman by means of violence, or threat of violence, abuse of authority or dominant position, debt-bondage, deception or other forms of coercion."⁽⁵⁹⁾

The distinction between sexual slavery and enforced prostitution (see above) may be difficult to recognize. It is likely that many, if not all, cases of enforced prostitution when committed in a conflict situation will in fact rise to the level of sexual slavery. What at first glance may appear to be enforced prostitution, in fact may rise to the level of sexual slavery, because the elements needed to prove the necessary indicia of ownership or control may be met by the specific coercive circumstances of an armed conflict, particularly where a victim is moved against his or her will into a war zone to provide sexual services. For example, in the Foca indictment issued by the ICTY, the defendants were charged with slavery for detaining nine women in a private apartment where the women were repeatedly subjected to rape and forced to work both inside and outside of the apartment. Even though the women had keys to the apartment, the indictment noted that they were not able to flee in any meaningful sense since they had nowhere to go and were surrounded by Serbs, both soldiers and civilians.⁽⁶⁰⁾

ENFORCED STERILIZATION

Recommendation: Enforced sterilization involves the accused committing an act or omission that results in a person becoming sterile without that person's informed and free consent. The accused must be aware that sterilization will result from his conduct in the ordinary course of events.

Comment: It is important to understand enforced sterilization may take the form both of an abusive medical practice and as a possible and foreseeable result of sexual violence, e.g., the cutting out of women's vaginas documented in Rwanda.⁽⁶¹⁾ The mental state should reflect Article 30 of the Statute.

Articles 8.2(b)(xxvi): Conscripting, Enlisting or Using Children in Hostilities

"... (xxvi) Conscripting or enlisting children under the age of fifteen years into [the national] armed forces [or groups] or using them to participate actively in hostilities;"

Mental Element

Recommendation: The accused, in conscripting, enlisting, or using persons under the age of fifteen to actively participate in hostilities, must have known such persons were under the age of fifteen or have recklessly failed to take feasible steps to ascertain whether this was so.

Comment: The Court's jurisdiction should not be precluded on the basis that the accused did not "know" the age of the person conscripted or enlisted, if he or she failed to take any reasonable measures to ascertain the person's age. Such a requirement would create a loophole in the Court's jurisdiction and would be out of step with legal standards on this issue. Article 77 of Additional Protocol I to the Geneva Conventions states that parties to the conflict "shall take all feasible measures" to ensure that children under the age of fifteen years do not take a direct part in hostilities. The ICRC Commentary on Additional Protocol I defines "feasible" as meaning "capable of being done, accomplished or carried out, possible, or practicable."⁽⁶²⁾ In this context, it is suggested that feasible measures to prevent the participation of children in hostilities should include ascertaining, to the maximum extent possible, the age of persons being conscripted, enlisted or used.

Material Element

Recommendation: The Rules should reflect that these crimes may be committed notwithstanding that persons who have not yet attained the age of fifteen consent or "volunteer" to join the armed forces. In each case, encouragement, acceptance or authorization may be sufficient conduct for the purposes of the commission of this crime, where this conduct results in the enlistment, conscription or use of persons under fifteen in hostilities.

Comment: The ICRC Commentary on Additional Protocol II, Article 4, states that the "principle of non-recruitment [of children under the age of fifteen years] also prohibits accepting voluntary enlistment."⁽⁶³⁾ Acceptance of a volunteer under the age of fifteen should be sufficient to constitute the material element of this crime.

There are shadows of this in the comment to the U.S. paper, which recognizes that "consent on the part of the underage person is not a defense to enlistment or conscription." The Rules should make clear that this is equally true for the "use" of child soldiers. As suggested in the U.S. paper, if the child chose to participate in a levee en masse and the accused did not accept, authorize or in any other way "use" the person in active hostilities, there is clearly no culpability under the Statute. But culpability could arise where the active participation in hostilities, or the enlistment or conscription, is accepted or authorized⁽⁶⁴⁾ by the accused and the Elements should recognize this. As this may be conveyed expressly or tacitly, the Elements should replace "act" with the broader term "conduct."

It should also be noted that the use of the term "military service" in the terminology section of the U.S. paper, in preference to "national armed forces" or "armed forces or groups" -- as provided for in Article 8.2(b)(xxvi) and 8.2(e)(vii) of the Rome Statute -- is unduly restrictive. The ICRC Commentary on Additional Protocol II to the Geneva Conventions, Article 1, states that the term armed forces "should be understood in the broadest sense" and was chosen "in order to cover all the armed forces, including those not included in the definition of the army in the national legislation of some countries (national guard, customs, police forces or any other similar force)."⁽⁶⁵⁾

These recommendations and comments apply also to Article 8(2)(e)(vii). In addition to deleting the word "international" in Element 1, the word "national" should be deleted from Elements 2 and 3, and the phrase "or groups" inserted following "armed forces.

SECTION II: VICTIMS IN THE ICC

INTRODUCTION

The interests of justice and the interests of victims are complementary. The overriding interest of victims is likely to be the interest in seeing that crimes are effectively investigated and that justice is done. Victims bring experience and perspective distinct from the other participants in the process, which can prove valuable to ascertaining the truth and critical to the impact of the International Criminal Court (ICC) on the reestablishment of the rule of law and even peace and security.

Victims of human rights violations do not have "rights" within the ICC framework to the same extent as defendants: this reflects that the rights of the accused to a fair trial are enumerated in international human rights instruments in a manner that the "rights" of victims are not.⁽⁶⁶⁾ Note however, victims have rights recognized in international standards that may be implicated in the context of proceedings of the ICC, such as the right to privacy and to security of the person, the right to truth, to access justice and to reparations. This underlies the recognition of victims' "interests" in the Statute which the Rules should protect and promote.⁽⁶⁷⁾ In establishing a framework wherein these interests can be addressed, the Rules should be governed by international standards.⁽⁶⁸⁾

The Rules should provide a mechanism to implement the Statutory provision for institutional victim support through the Victims and Witnesses Unit.⁽⁶⁹⁾ The Prosecutor's statutory duties and the interests of efficiency mandate that he or she should also represent the rights and interests of victims in the investigation and prosecution. However, given that the Prosecutor's actions most probably will be governed by the desire to gain a successful conviction it is possible that victims' interests and the interests of the Prosecutor will not coincide. For this reason, the Rules should recognize and give effect to the independent voice of victims in the process.

Furthermore, while providing for the participation of victims and the protection of their rights and interests, the Rules must ensure that the rights of the accused are not in any way infringed. To fail to protect the accused would be inconsistent with the Statute and would undermine the credibility and authority of the Court. Moreover, delegates should keep in mind that the Rules, like the Statute, will have an impact beyond the critical question of the functioning of the Court itself. The ICC Rules will make an important contribution to international standard setting, being a potential point of reference for, and influence on, national standards of justice. This underscores the need for conformity of the Rules to the highest standards of international human rights law.

The Rules should also ensure that the integrity and efficiency of investigations are not jeopardized and that proceedings are conducted fairly and expeditiously. Critically, the Rules must be consistent with the Statute at all times.⁽⁷⁰⁾

Neither the interests of victims, nor those of the efficient administration of justice will be served by detailed and restrictive Rules. The Statute enshrines these key principles: victim participation throughout the proceedings, the protection of the broad interests of victims and the right to reparations. A broad procedural framework should be established to give meaning and effect to these important statutory principles, while allowing discretion to balance competing factors in a particular case.⁽⁷¹⁾ Moreover, any procedures enshrined through the Rules should be as straightforward as possible, and should not be unduly onerous for victims or the Court.

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Unless otherwise indicated, references in this section relate to the Statute or to the text that emerged from the intercessional meeting of experts held in Paris between 25-27 April 1999 ("the Paris report"), which Human Rights Watch believes provides a helpful basis for negotiations of victims' issues at the July Preparatory Committee meeting. It deals with three areas: the participation of victims in proceedings (Workshops 1 and 2), the protection of victims (Workshop 3) and reparations (Workshop 4). It should be noted that many of the protection issues are more fully developed under Section III of this Commentary.

Public Outreach and Education

Recommendation: The Court should engage in public education and outreach concerning its work. The Rules should provide that this responsibility be discharged by the Registry.⁽⁷²⁾

Comment: Knowledge about the Court's existence, objectives and functions should reach as many people as possible, particularly in societies where the crimes under the Court's jurisdiction occur. Wide dissemination of information is key to guarantee: 1) that victims have the chance to present their cases for consideration;⁽⁷³⁾ and 2) that those victims who do not wish to directly participate or whose case will not ultimately be prosecuted, and indeed members of the society at large, can be informed of the progress of prosecutions.

During situations of violence, victims and the society as a whole suffer not only from the direct violence but also from the continued sense of fear and vulnerability caused by the impunity that often accompanies these crimes. The Court's proceedings--the investigation, public acknowledgment of atrocities and punishment of those responsible--can themselves constitute a critical form of redress for victims and the societies of which they form part, if they feel able to participate in the process and are kept sufficiently informed of it. The ICC is not a truth commission and its prime responsibility is establishing accountability for individual perpetrators of atrocious crimes. However, the important contribution that the ICC can make toward moral and psychological redress of the victims, as a natural by-product of its work, should not be ignored.

Moreover, broadly disseminated information is essential to the transparency of the institution, its credibility and ultimately its effectiveness. The void created where information is lacking provides fertile breeding ground for suspicion and for misinformation to be disseminated by those whose ends it may serve to discredit the Court. If not countered effectively, this could result in the reluctance of individuals, or of national authorities, to cooperate with the Court and could seriously impede the Court's ability to function.⁽⁷⁴⁾

The experience of the ICTY underscores the importance of broad and effective outreach. A recent ICTY "Outreach Program Proposal"⁽⁷⁵⁾ identified a gap between international justice and "its beneficiaries--victims of the conflict (…)." The document recognizes that "many feel that the International Tribunal is remote and disconnected from the population and that there is little information available about it. Such views are exploited by authorities that do not recognize or cooperate with the International Tribunal, thereby damaging efforts to foster reconciliation and impeding the work of the Office of the Prosecutor."⁽⁷⁶⁾ The document notes that "[i]t is therefore critical to the success of the International Tribunal that the populations of the region are informed about the work of the International Tribunal and understand its significance."

This role may be performed through the establishment of a public information office within the Registry, and as such will also be relevant in the context of elaboration of Rules on Part 4 of the Statute. While the Rules need not elaborate provisions on the functioning of such a scheme, they should reflect the underlying principle.

Definition of Victim

Recommendation: The definition of victim should cover all persons who individually or collectively have suffered harm as a result of crimes within the Court's jurisdiction. This should cover the family of the victim and others who have suffered harm as a result of intervening to assist victims. Harm should be understood, in accordance with international standards contained in the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power UNGA Resolution 40/34, 1985 (The Victims' Declaration), to include, "physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights."

PART A: PARTICIPATION OF VICTIMS

Introduction

The ICC Statute does not treat victims as passive objects of protection or instruments for the use of the prosecution. By fully enshrining the principle of victim participation, the ICC Statute implicitly recognizes the contribution that victims can make to the criminal process and the importance of that process to victims.⁽⁷⁷⁾

It is important to bear in mind, however, that this development does not take place in a vacuum but grows from the soil of many years of evolving international norms and state practice. The principle of greater victim involvement received international recognition through The Victims' Declaration,⁽⁷⁸⁾ and is increasingly seen in domestic criminal systems in civil and, to a lesser degree, common law countries.

In most civil law jurisdictions, victims enjoy a more active and wide-ranging role than that contemplated in the ICC treaty. In some European systems, of which the French "partie civile" system is exemplary, the victim may become a party to the proceedings,⁽⁷⁹⁾ while in others, such as that of the Netherlands, the victim is not a party but does have the right to be represented by counsel and to access certain records in the case.⁽⁸⁰⁾ In many Latin American systems, victims or their representatives can participate as private prosecutor or "querellante adhesivo"⁽⁸¹⁾ with the ability to initiate a prosecution or to attach as co-prosecutor to a case initiated by the Public Ministry.⁽⁸²⁾ Recognition of the principle in a number of common law systems, including Canada, the U.S. and the United Kingdom, that historically did not embrace victim participation, is a sign of the global trend toward greater victim involvement in criminal proceedings.⁽⁸³⁾

The experience of national systems therefore suggests that victim participation is increasingly being seen as a viable and valuable facet of the criminal justice system. This experience should assuage those who are concerned that the modest regime enshrined in the ICC Statute would present problems. In providing rules to govern the prosecution of the most serious crimes committed in the future, the role and voice of the victim should be accommodated as fully and efficiently as possible in the prosecution of the accused, with due respect for the rights of the accused.

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This sub-section deals firstly with specific rules relating to Articles 15 and 19 of the Statute and then with Rules relating to participation under other provisions of the Statute, in particular, Article 68(3). This commentary, reflecting the Paris report, treats Article 15 and 19 separately from others, based on the specific provision for victim participation contained in these two articles of the Statute. Article 68(3) is a more general provision allowing for participation at other stages, as and when the Court deems appropriate. It should be noted however, that many of the principles applicable to participation at other stages of the proceedings are also applicable in this section. In particular, the Rules on legal representation, and the Court's control over the manner in which interventions or observations may be made, apply here.

ARTICLE 15

Confidentiality of Article 15 Communications

Recommendation: Information provided to the Prosecutor by victims or others pursuant to Article 15 should be treated confidentially, subject to respect for the rights of the accused. The identity of those providing information should not be disclosed, unless he or she becomes a witness at which point the applicable rules of evidence and disclosure take effect.

Comment: The risk to those who assist the Court by reporting the commission of egregious crimes is obvious. It is important then that information can be provided in the knowledge that its source will remain confidential, unless the provider of the information decides to waive confidentiality. Like all Rules, this must however be consistent with the rights of the accused. While the principle expressed in Workshop 1, Rule A⁽⁸⁴⁾ of the Paris report should be supported, it should be clarified to ensure that the confidentiality does not affect the duty of the Prosecutor to disclose potentially exculpatory information to the accused sufficiently in advance of trial to prepare his or her defense.

Representations to the Pre-trial Chamber in Support of a Request for Authorization to Investigate under Article 15

Recommendation: In accordance with Article 15(3), victims who have provided the Prosecutor with information under Article 15(1) and (2) should, in principle, be informed of the possibility of making representations to the Pre-Trial Chamber in the event that the Prosecutor seeks authorization to proceed with an investigation.

Comment: The Statute specifically recognizes that "victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Evidence and Procedure."⁽⁸⁵⁾ The Rules must therefore seek to establish procedures to give effect to that provision.

The most essential of all victims' interests is likely to be the interest in seeing that the Court is seized with the matter and that an investigation proceeds. This decision is one on which the satisfaction of all other victims' interests depends. The Rules should therefore ensure that at least those victims who have triggered the Prosecutor's consideration by providing information to him or her be given an opportunity to explain to the Court why the investigation should be authorized.

However, at this very preliminary stage, the issue must be treated with particular sensitivity. Article 15 hearings are not public hearings, but rather ex parte hearings that take place at the very outset. Imperative reasons may exist to keep confidential even the fact that the Prosecutor's office is seeking approval to investigate, and in particular, to protect information within its possession, such as the identity of individuals who may have been identified as suspects and those who are sources of the information. This will be important not only for the ultimate effectiveness of the investigation but also for the security of other witnesses.

Notification of a Decision Not to Investigate

Recommendation: When the Prosecutor decides not to go forward with an investigation, or not to proceed with a significant aspect of it, the victims or other sources of information should be so informed.⁽⁸⁶⁾

Comment: If the Prosecutor decides not to investigate the complaints made by victims it is essential that they be so informed. Workshop 1, Rule C⁽⁸⁷⁾ of the Paris report should therefore be supported. This Rule should also apply when the Prosecutor decides to investigate certain charges and not others.

In both the Akayesu and Musema cases⁽⁸⁸⁾ before the ICTR, the Prosecutor failed to indict for rape despite strong evidence. In both cases, the indictment was amended after the trial had begun, a travesty both for the defendant and for the victims. If the Prosecutor had informed the victims of the intention not to proceed, the opportunity to present additional information or arguments would have arisen at an earlier stage. While we recognize that the Prosecutor should not have to provide a detailed explanation of the reasons behind his or her strategic prosecutorial decisions, it is important that there be some basic accounting for failure to pursue an investigation of significant aspects of the crimes complained of. When the Prosecutor goes before the Pre-Trial Chamber to seek authorization to proceed, the victims may then have the opportunity to make their views known.⁽⁸⁹⁾

ARTICLE 19⁽⁹⁰⁾

Victims' Observations on Challenges to Jurisdiction/Admissibility

Recommendation: Victims who have already participated in the investigation should be notified sufficiently in advance of Article 19 proceedings and of the possibility of making observations as determined by the Court.⁽⁹¹⁾ As far as consistent with the integrity of an investigation, and after consultation with the Prosecutor's office, such proceedings should also be publicized to give other victims the opportunity to make observations.

Comment: Article 19, similarly to Article 15, specifically recognizes that "those who have referred the situation … as well as victims, may also submit observations to the Court."⁽⁹²⁾

It should be noted that the views of victims are likely to be particularly valuable to the Court at this stage; victims may possess information as to the functioning of national systems and of the ability and willingness of relevant national authorities to genuinely investigate and prosecute. These matters may, under the statutory framework, be very difficult for the Court, or the Prosecutor, to ascertain independently. The greatest efforts to facilitate victim participation should therefore be made, in recognition both of the importance of the decision to victims and of the information victims could bring to the Court. In order to maximize the effectiveness of victim participation at this stage, the Rules should provide that adequate information be provided to the victim as to the grounds of challenge.

By the stage at which Article 19(3) takes effect--when the admissibility of the case is being challenged by a state or the accused--the existence of the proceedings is not in itself likely to be as sensitive an issue as at the stage of the Article 15 ex parte hearing. Nonetheless, the Rules should, as before, provide that where the public announcement or the provision of particular information would prejudice the integrity of investigations or the life or well-being of any person, it can be withheld by the Prosecutor, acting with the Victims and Witnesses Unit.

ARTICLE 68(3): PARTICIPATION THROUGHOUT PROCEEDINGS

Under Article 68(3), where the personal interests of victims are affected, victims may be permitted to participate at other stages that the Court deems appropriate, in a manner not prejudicial to the rights of the accused or a fair and impartial trial. The following recommendations, which correspond with Workshop 2 of the Paris report, relate to the broad provision for possible access or intervention by victims under Article 68(3).

Scope of the Rules on Article 68

Recommendation: The Rules should facilitate the fullest possible access of victims to proceedings where their interests may be affected. The Rules should not seek to identify what those interests may be or the stages at which such interests may be affected, which will be a matter for ultimate determination by the Court. Rather, they should create a broad procedural framework, establishing a mechanism that facilitates victim access and enables victims to seek to intervene when they consider their interests to be affected.

Comment: The Rules should not restrict the scope of this appropriately flexible provision, but should reflect the fact that in certain circumstances countervailing interests--in protecting the integrity of the investigation, the rights of the accused or the interests of other victims and witnesses--may prevail.

The Statute gives the Court the power to determine when such interventions are appropriate and the manner in which they may be made. Attempts in the Rules of Procedure to limit the Court's power will be inconsistent with the Statute. In any event, it would be a futile exercise to seek to determine in the abstract what "victims' interests" might be and when they might be affected. The interests of victims will vary from one situation to another and as between victims.

Moreover, as noted above, the interests of victims are potentially affected at all stages of proceedings and may arise at times other than at established stages where the Chamber of the Court would automatically be involved under the statutory procedure. For example, prior to disclosure, victims may wish to make interventions in support of non-disclosure of certain information.⁽⁹³⁾

As the nature of the victims' interests and the stages where intervention might be permitted will vary greatly, as will the potentially countervailing interests, such as justice or rights of the accused, the balancing test should be left for the Court in light of all facts and circumstances.

Initial Notice

Recommendation: The Victims and Witnesses Unit should seek to ensure that victims are made aware, as early as possible in proceedings, of the full range of possibilities for their access and intervention under the Statute and Rules. Victims should also be informed at the outset of the existence of the Victims and Witnesses Unit and the services it may provide. Outreach should be by way of broadly publicized public notice, so far as consistent with the integrity of investigations and the well-being of persons. For this purpose, the Prosecutor's Office should consult regularly with the Unit.

Comment: If the principle of victim participation enshrined in the Statute is to be meaningful, victims must know about ICC proceedings and the possibilities that exist for their involvement. In principle, this should be done as early as possible as the interests of victims may be affected from the earliest stage and delay could be seriously prejudicial to those interests.⁽⁹⁴⁾ However, the potential dangers of revealing information that would jeopardize on-going investigations must also be recognized. Therefore, the Prosecutor should enjoy a degree of discretion to control the timing of notification and the extent of it. The Rules should establish that victims be so informed, at as early a stage as possible, taking into account possible jeopardy to investigations or the security or other interests of persons. This balancing exercise should be done in consultation with the Victims and Witnesses Unit, thus providing some check on the exercise of prosecutorial discretion.

Manner of Notice

Recommendation: The outreach or notice must be done in an effective way that will reach all victims regardless of literacy, resources or social standing. For example, it should be conveyed orally and by radio, as well as by print and television media, as dictated by the social circumstances of the particular country or communities in question.

Notice must be given in a way that will not prejudice the security or other interests of victims or others, and in a way that is sensitive to their needs and difficulties.

Comment: The Rules must seek at all times to avoid creating a hierarchy of victims, with only those educationally or financially advantaged able to access the Court. The importance of this principle was discussed earlier under the "Outreach" recommendation.

The staff of the Court should be sensitive to the risks to which involvement or perceived involvement with the Court may expose victims, from direct threats to their security to the dangers of stigmatization, particularly in cases of sexual assault.

These recommendations apply at all stages, from initial outreach to providing notice and information on an on-going basis to victims who are engaged in the process. They underscore the importance of experienced personnel, including people with knowledge of the culture in question, trained to deal with traumatized individuals, including victims of sexual violence and child victims.⁽⁹⁵⁾

Notification in Advance of Key Decisions

Recommendation: Notification is an essential part of the procedural framework that should be enshrined in the Rules. Victims should be notified at all appropriate stages in a manner that makes the statutory right meaningful. Unless the Court decides that countervailing interests demand otherwise, they should be notified in a timely manner, before the decision that may impinge upon their interests takes effect. Secondly, the notification should relay an adequate degree of information that enables victims to understand the nature of proceedings, the impact they may have on their interests and to assess their potential contribution.

Comment: Timely notification is essential if victims are to take part in proceedings in a meaningful way. A system of frequent notification promotes transparency in Court proceedings and should be established to keep victims as fully engaged in the process as possible. There should be fluid communication from the Prosecutor's Office and the Victims and Witnesses Unit to the victims.

The Prosecutor's office will, in general, be the organ of the Court with the greatest knowledge of how the process is evolving and will have the greatest understanding of the dangers to the integrity of the investigation and of untimely or inappropriate revelations. The Prosecutor's office must therefore assume responsibility for notifying victims and providing them with the information on which their meaningful participation depends. However, as noted above, there may be situations in which the interests of victims will diverge from the interests of the Prosecutor's Office. It is important that there is another organ of the Court involved to safeguard the victims' interests, and the Prosecutor's Office should therefore fulfil its functions in conjunction with the Victims and Witnesses Unit. This will ensure some check on prosecutorial discretion as to when and to what extent to inform.

Legal Representation

Recommendation: Victims should, in principle, be entitled to choose their own legal representative. The Victims and Witnesses Unit should assist the victims to find, organize and, where necessary, finance their legal representation. This is, however, subject to the ultimate authority of the Court over the manner and timing of victim interventions. In particular, the Court should have the power to invite victims to choose a common representative and, where necessary, to ask the Registry to appoint one.

Comment: The Paris report contains the important principle that representatives should be chosen by the victims they represent. While clearly not on a par with the right of the accused to counsel, it should be noted that victims do have important interests at stake on which they deserve adequate advice and representation. Moreover, in order to prevent the re-traumatization of victims and to ensure their confidence in the process, it is particularly important that they be represented by someone chosen by them and in whom they have absolute trust.

The advantage of providing specifically for legally qualified representation is, firstly that it seeks to ensure a certain quality of advice and representation for the benefit of victims. Secondly it may serve the interests of efficiency, in ensuring that the persons likely to be addressing the Court or examining witnesses have the legal skills and experience necessary to do so effectively and in accordance with the Rules of the Court. Victims should be allowed to represent themselves if they so desire. In accordance with the Paris report, the Rules should not make legal representation mandatory. Rather, the Court should allow for greater flexibility to determine what would be the appropriate manner of intervention in a particular case. Moreover, the selection of a representative should not mean that the victim may not also attend or participate directly at relevant stages of proceedings.

The Court must retain authority over its own proceedings. The Rules should therefore reflect the Court's power, in exceptional circumstances, to restrict forms of representation which would be incompatible with an effective, fair and impartial trial.⁽⁹⁶⁾ While the Victims and Witnesses Unit should facilitate the coordination of representation among multiple victims, the Court itself should make any decision with binding effect on this matter.⁽⁹⁷⁾

It is broadly recognized that an essential component of providing access to justice is removing barriers, including economic barriers, that make the exercise of rights illusory. Affording access by victims to the ICC should involve providing such assistance as may prove necessary to ensure that victims can participate and be represented. Absent provision for legal support, including of a financial nature, the Rules will create a hierarchical system that effectively excludes many victims or jeopardizes their ability to effectively protect their essential interests. Making access to international justice contingent on ability to pay is unacceptable, particularly given the context of victimization, the circumstances in which many may find themselves, exacerbated by the economic detriment that they will have suffered as a result of the crimes in question.⁽⁹⁸⁾

Role of the Victims and Witnesses Unit and Participation

Recommendation: The Victims and Witnesses Unit should have a role in facilitating the participation of victims, their organization and their representation, particularly where there are multiple victims, as will often be the case given the egregious and massive nature of many of the crimes within the ICC's jurisdiction. The Unit should be responsible for registering victims and noting their interests when they first come into contact with the Court. This will facilitate future notification and communication with victims who want to participate throughout the proceedings. They should be responsible for working with the Prosecutor's Office to ensure that victims or their elected representatives are notified of decisions that may have an impact on their interests, in advance of those decisions taking effect, to allow them to ask if they may make their views known to the Court.

Comment: Workshop 2, Rule X of the Paris report should be supported. It provides for the Registry to keep victims fully informed of their rights, including advising them of decisions that may affect their interests before they take effect, notifying them of decisions and assisting them in their participation and legal representation. Human Rights Watch suggests that these functions should be carried out within the established structure of the Victims and Witnesses Unit⁽⁹⁹⁾ within whose mandate this assistance falls comfortably, to avoid the creation of unnecessary new structures.

Manner of Participation/Intervention

Recommendation: Consistent with the Statute, the Rules should allow for intervention in any manner the Court deems appropriate in the particular case. In principle, a victim's representative should be able to question the accused, witnesses and experts, so far as the Court determines that this is appropriate. We therefore support the Rule contained in Rule C(2) of the Paris report, provided it is made clear that it does not preclude any other possible form of intervention as permitted by the Court.

PART B: THE PROTECTION OF VICTIMS AND WITNESSES

The Duty of the Court to Protect Victims and Witnesses

Recommendation: The Rules should reflect the duty of the Court to take all reasonable steps to protect those who assist the Court as witnesses, come before the Court in their capacity as victims, or are otherwise put at risk as a result of the Court's proceedings. The Court should have power to take such measures as prove necessary, whether before, during or after trial. They must be consistent with the rights of the accused as provided for in the Statute.

Comment: Providing effective protection to witnesses and victims is critical to the success of the ICC. Victims choosing to participate and witnesses voluntarily submitting to the Court should not have to jeopardize their security to do so. Every effort must be made to avoid endangerment of victims, witnesses or others as a result of ICC proceedings. They should be provided with the necessary support to minimize their trauma or promote their expeditious recovery.

The existence of effective protective measures may have direct consequences on the willingness of witnesses to come forward and ultimately on the ability of cases to proceed or to be appropriately prosecuted. Numerous women have refused to participate in the proceedings of the Rwandan and Yugoslav Tribunals, in large part because of a fear of reprisals against them or their families.⁽¹⁰⁰⁾

As will be noted below, the sort of protective measures that the Court should adopt are many and will vary from one situation to another. They may, moreover, be necessary at any stage and some of them should, in principle, be available before, during and after the trial.⁽¹⁰¹⁾

The Rules should establish guidelines but they should not seek to be exhaustive. Rather, they should allow the necessary flexibility to respond to the particular interests, needs or personal circumstances of the victims, witnesses or other persons involved. It is essential that the Court treat victims with compassion and sensitivity, particularly given the egregious crimes which they will have suffered.

The Rules should make clear that any protective measure taken by any organ of the Court or ordered by a Chamber must be consistent with the rights of the accused under the Statute and international law. This is critical to ensure consistency with the Statute,⁽¹⁰²⁾ the credibility of the Court's proceedings and the realization of the ultimate goal of ensuring that the interests of justice are served.

The Role of the Victims and Witnesses Unit

Recommendation: The Victims and Witnesses Unit, established as part of the Registry,⁽¹⁰³⁾ should be empowered to take measures for the protection of the integrity, privacy, and physical and psychological well-being of all victims and witnesses,⁽¹⁰⁴⁾ consistent with the rights of the accused. The Rules should ensure that basic support services be provided by the Victims and Witnesses Unit, in confidence, which should include as a minimum the following: confidential trauma counseling by appropriately qualified staff, including those experienced in dealing with victims of sexual abuse; medical care; arranging transportation to the seat of the Court as necessary; legal counseling for trial preparation; assistance in facilitating the presentation, organization and representation of victim's interests or rights before the Court;⁽¹⁰⁵⁾ and assistance with relocation of victims, witnesses, and their families, if they so desire. The Rules should not, however, seek to enumerate an exclusive list of functions or powers of the Unit.

Comment: The Victims and Witnesses Unit has, under Article 43(6), a specific mandate to "provide, in consultation with the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses." The Rules should not seek to limit the sort of assistance that may be appropriate in a particular case.

The Rules may however indicate the scope of the services that may be required of the Victims and Witnesses Unit. These cover the support and protection of witnesses as well as the facilitation of their participation in proceedings, as noted in the previous section. The inclusion of any minimal list in the rules must be clearly illustrative and not exhaustive, to allow the necessary flexibility to respond to the particular situation and the interests, needs or personal circumstances of the victims, witnesses or other persons involved.

Victims must be assured that their dealings with the Unit are confidential and the Rules should specify this. While the discharge of its mandate and the effectiveness of the system of victim participation and protection requires close coordination with the Prosecutor's Office, it should be clear, particularly in the event of any conflict of interest, that the Unit serves the interests of victims and witnesses independently of the Prosecutor's Office.

Nota Bene: for other recommendations dealing with the protection of victims and witnesses, please see Section III which, in the context of disclosure and evidence, deals with issues essential to the protection of victims and witnesses.

PART C: REPARATIONS TO VICTIMS

Introduction

The making of reparations from perpetrator to victims can play a critical role in the healing process of victims, of societies as a whole and of the perpetrators themselves, and as such can be a factor in preventing future violations. The International Criminal Court treaty provides a unique opportunity to give effect to victims' right to reparations. In part, it will occur through the effective functioning of the Court and the punishment of the perpetrators, which is itself a crucially important form of reparation. Under Article 75, the Court has the power to grant other reparatory measures, including restitution, compensation and rehabilitation, which may range from some form of objective recognition that atrocities were committed, to direct acts of restitution or indemnification.⁽¹⁰⁶⁾

The treaty grants the Court a flexible power to order that perpetrators make appropriate reparations to victims. The Preparatory Commission need not agree on the meaning of "reparations," or what measures might constitute meaningful or appropriate forms of reparation. These are challenges that the treaty mandates for the Court itself in developing and applying its own principles.⁽¹⁰⁷⁾ The challenge for the Preparatory Commission then is to draft workable rules of procedure that are consistent with the Statute and that ensure that the important principles embodied in it can have real effect. In doing so they should ensure that the voice of the victims is heard and that the rights of the accused to respond to and contest allegations that may affect his or her rights are respected. The Rules should allow the Court the flexibility to carry out its mandate as the interests of justice require in a particular case, having regard to international standards.⁽¹⁰⁸⁾

The Duty of the Court

Recommendation: The Rules should not restrict the Court's flexibility to determine the nature of reparations that may be appropriate in any particular case.

Comment: The Statute enshrines a necessarily flexible regime. It gives the Court the authority "to establish principles relating to reparations" (Article 75(1)) and to determine "appropriate reparations" in making an order against a convicted person (Article 75(2)). Article 75(2) provides that those measures include but are not limited to "restitution, compensation and rehabilitation," allowing the Court to award any other type of reparations it deems appropriate in the particular case. Rules of procedure that have the effect of restricting the Court's exercise of its statutory authority would be inconsistent with the Statute and would not best serve the interests of justice. Reparations may take many forms. What is appropriate, feasible and in the interests of the particular victims will vary vastly from one case to another and one situation to another. The Rules should not endeavor to preempt the Court's decision or to restrict its flexibility.

Timely Protective Measures

Recommendation: The Rules should provide for the Court to request protective measures that may be necessary to give effect to a future reparations order. These measures should include the freezing of assets or provisional forfeiture of the property of the accused, without prejudice to third party rights and in accordance with the Statute. It should be able to make such a request immediately following the issuance of an arrest warrant or summons or at any moment thereafter, either upon the request of victims or proprio motu. Finally, the Rules should clarify that the Court can use assets frozen or goods provisionally forfeited toward satisfaction of a reparations order.⁽¹⁰⁹⁾

Comment: The satisfaction of many forms of reparations will depend on the ability to access the accused's assets and property. A financial award from perpetrator to victims, constituting restitution or compensation, is the most obvious. This remains an extremely important form of reparation, particularly where, as is often the case, the perpetrator of serious crimes has benefited financially from those wrongs, and the victims have suffered great economic hardship. If the Court is to be able to give real effect to its power to make reparations orders, it must take steps to ensure that the assets of the accused are not disposed of or transferred. This risk exists from the moment a suspect or an accused person knows that he or she is under investigation and will be particularly acute once a warrant of arrest is issued. The recent indictment in the case of the Prosecutor v. Slobodan Milosevic and others is an example in which the importance of simultaneous indictment and the freezing of assets was recognized.⁽¹¹⁰⁾ We suggest that the Rules must allow for provisional measures such as freezing of assets to be taken immediately following the issuance of an arrest warrant or summons.

This recommendation is entirely consistent with Article 57(3)(e) of the Statute, which allows the Pre-Trial Chamber "to take protective measures for the purpose of forfeiture in particular for the ultimate benefit of victims." This provision applies "where a warrant of arrest or summons has been issued." While it would therefore appear that no "protective measure" could be taken before then, at least under this provision, the Rules should make clear that they can be taken immediately upon the grant of the warrant or issuance of summons. If the power to grant protective measures is to be meaningful, the Rules must provide for its application in a timely manner. The Rules should explicitly provide for protective measures to be issued together with such a warrant or summons, so as to preclude any intervening period during which steps may be taken by the accused to put his or her property or assets beyond the reach of the Court.

Timely Presentation of Victims' Claims

Recommendation: Victims must be able to present their claim to the Court at the earliest opportunity. Consistent with the above proposal, victims must be able to do so prior to the issuance of a warrant of arrest or summons to appear, in order to request that upon issuance of such a warrant or summons, an order for the freezing of assets be obtained. The Court may take these claims into account in deciding whether to request provisional measures. The Court should not, however, be required to respond to any claim or request at this preliminary stage where doing so might prejudice the integrity of investigations.

Comment: Victims' views should be taken into account in the determination of whether to grant protective measures upon issuance of a warrant or summons. This is perhaps the key decision that will determine whether their right to reparations can be enforced. It is clearly, therefore, a moment at which victims' interests are directly and seriously affected and at which their views should be taken into account.⁽¹¹¹⁾

However, this is also a preliminary and extremely sensitive stage of proceedings and no rule should prejudice the ability of the Prosecutor or the Court to discharge their primary mandate of seeing that suspects are arrested and brought to justice. It would be nonsensical to require that an imminent arrest warrant be publicized in order to give an opportunity for victims to make representations to the Court as to possible monetary awards in their favor.

Our recommendation strikes a balance between these two considerations. It provides for victims to make their claim to the Court and for the critical information they possess as to potential reparations orders to be taken into account by the Court in deciding whether to take protective measures and what measures might be appropriate. As an exception to the principle of close communication between the Court and victims, relevant at later stages, there should not be any obligation on the Prosecutor or Chamber to respond to these claims at the pre-arrest warrant or summons stage. In this way, the risk of revealing aspects of investigative and prosecutorial strategy, or indeed revealing whether any investigation is underway which could itself be prejudicial, is avoided.

We recommend that the Paris text (Workshop 4, Rule A.1) be amended accordingly, to allow for claims to be presented at any stage, prior to or after warrants or summons have been issued, while making clear that the formal process of engagement with the Court, should take effect only after the warrant or summons to appear has been issued.

Form of Presentation of Claims

Recommendation: There should be few formal requirements for the presentation of a claim to reparations; the procedure should not be unduly onerous for victims or the Court. Formalities and unnecessary procedural hurdles should be avoided. The Victims and Witnesseses Unit should have the responsibility for assisting victims in this process and keeping them informed of their rights, in consultation with the Prosecutor's Office. Where the victims so desire, or the Court so requires, it should facilitate their access to legal representation, in line with the recommendation made above in the context of participation and representation.

Comment: In elaborating Rules, the circumstances in which victims may come before the Court should be borne in mind. They may have been seriously financially disadvantaged by the crimes for which they seek reparations and they may be entirely without resources. They may be without independent support, assistance or representation at the outset.

It is therefore critical that they are provided with adequate assistance from the Victims and Witnesses Unit. The proposals made in the context of participation apply here as well. These provide a role in facilitating the presentation of their claims and their representation and, in conjunction with the Prosecutor's Office, ensuring that victims are notified of their rights and provided information as to proceedings in a timely manner,⁽¹¹²⁾ so far as consistent with the integrity of proceedings. This will further serve the interests of efficiency for the Court, particularly where there are large numbers of victims.

Appointment of an Expert Advisor

Recommendation: The Court should be able to appoint an expert on an ad hoc basis either to provide advice as to the elaboration of the applicable "principles" relating to reparations or in relation to the Court's determination of appropriate reparations in any particular case. The decision must ultimately lie with the Court, but it should be informed by those with relevant experience and expertise.

Comment: The powers of the Court to award appropriate reparations are suitably wide-ranging. In exercising its power to determine and award the most appropriate form of reparation, the Court should consider among other things, the potentially varying interests of the different victims. The expertise from which the Court may benefit in making these determinations could range from technical economic assessments to socio-cultural evaluations as to the significance and impact of one form of reparation over another. The range of expertise that may be required would support the ability to seek advice on an ad hoc basis as the Court sees fit.

While this responsibility must rest with the Court, it may require the advice of an independent expert or experts to assist it. This would ensure that persons with the relevant expertise are involved in an advisory capacity before these decisions are taken, which are of the utmost importance for victims. It would also ease the burden on the Court.

Rights of the Accused and Reparations

Recommendation: In recognition of the impact that a decision to order reparations has on the fundamental rights of the convicted person, the Rules should guarantee the protection of those rights. Specifically, orders for reparations should only be made when the convicted person has been given an adequate opportunity to consider the evidence against him or her and to be heard by the Court.

Comment: Orders for reparations should only be made when the accused has had the opportunity to consider the evidence on which such an order might be made, to refute it and present evidence in support of his or her case. A hearing on reparations is not a criminal hearing. The standard of proof is lower, as are the stakes from the perspective of the convicted person, as his or her liberty is not in question. Nevertheless, the person against whom an order is sought does have a right to a fair and public hearing in the determination of his or her obligation to pay reparations.⁽¹¹³⁾ This should not open the door to a second trial, but should be an opportunity to put before the Court issues of specific relevance to the determination of reparations. Consistent with its general authority over its own proceedings, the Court can control the mode and manner of these proceedings, consistent with respect for the rights of the accused and due regard for the interests of victims.

SECTION III: DISCLOSURE AND TRIALINTRODUCTION

Issues of disclosure and evidence are among the most important for the protection of the interests of victims and witnesses. They are also essential in determining whether the ICC will guarantee a fair trial to those accused of the most serious international crimes. Human Rights Watch reiterates its suggestion that delegates avoid rigid rules that may not serve the interests of justice in any particular case.

As pointed out in Section II. B above, many of the following recommendations on disclosure and evidence are relevant to the question of the protection of victims and witnesses, and should also be considered in that context.

Documents referred to in this section are the Discussion Paper on Part 5 of the Rome Statute, PCNICC/1999/WGRPE-RT.4 [hereafter RT4], circulated at the conclusion of February session of the Preparatory Commission, the Coordinator's Discussion paper that emanated from the Siracusa meeting in June [hereafter the Coordinator's Discussion paper] and the proposal by the delegation of Australia PCNICC/1999/DP.1 [hereafter DP1].

A: DISCLOSURE

Unless otherwise indicated, the following recommendations are based on Discussion Paper RT4.

THE STANDARD FOR DISCLOSURE

Recommendation: The Rules should provide for the Prosecutor to disclose 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.

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 determining guilt or innocence. The ICC Statute states in 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 tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence."

The formula set out in the recommendation above replicates the standard in place at the ICTY.⁽¹¹⁴⁾ It reflects the ICC statutory standard, with the simple advantage of clarifying that evidence which "in any way" shows or tends to show innocence or mitigate guilt ought to be disclosed. Given the importance of disclosure to safeguarding the rights of the accused, this clarification would be helpful. As currently drafted, Draft Rule 5.16 of RT4, which refers to "material to the preparation of the defense or which are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial or were obtained from or belonged to the person," falls significantly short of the statutory standard.

TIMING OF DISCLOSURE

Recommendation: Issues of disclosure should, as far as possible, be dealt with in the pre-trial phase. In accordance with the Statute, disclosure should be made "as soon as practicable,"⁽¹¹⁵⁾ having due regard for the interests of victims and witnesses. Disclosure must take place sufficiently in advance of the commencement of trial to allow for the adequate preparation of the defense.

Comment: The requirement of Article 67 of the Statute to disclose relevant information "as soon as practicable," reflects Rule 66 of the ICTY Rules of Evidence and Procedure [hereafter ICTY Rules]. 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 RT4 Rule 5.16 with respect to witness statements, similar wording is required with respect to other forms of disclosure.

THE DUTY TO DISCLOSE

Recommendation: The Rules should clarify that the Prosecutor has a duty to disclose information or material falling within the standard set out in the previous recommendation. This duty, while subject to practical constraints, is proactive in nature and does not depend on the defense requesting the material or the Court ordering that it be disclosed.

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 à vis the disclosure of witness statements, the duty is clearly expressed in Draft Rule 5.15. However, there is no rule clearly enshrining the obligation to disclose other material to which the accused may be entitled.⁽¹¹⁶⁾ Rather, Draft Rule 5.16 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 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 a 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 indicates that gender stereotyping can result in the testimony of women witnesses, particularly in cases of sexual assault, being treated 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, color, language, religion or belief, political or other opinion, national ethnic or social origin, wealth, birth or other status.⁽¹¹⁷⁾

DUTY OF THE PROSECUTOR IN CASES OF DOUBT

Recommendation: The Rules should elaborate on Article 67 of the Statute to make explicit the obligation of the Prosecutor, at any stage of proceedings, to seek the determination of the Court where there is any doubt whatsoever as to whether evidence in his or her possession ought to be disclosed.

Comment: Article 67(2) of the Statute concludes by providing that "[i]n case of doubt as to the application of this paragraph, the Court shall decide." This provision would be more meaningful if accompanied by an obligation on the Prosecutor to go to the Court when any doubt arises as to disclosure, at any stage of proceedings.⁽¹¹⁸⁾

AUTOMATIC REVIEW MECHANISM TO SAFEGUARD RIGHT TO DISCLOSURE

Recommendation: The Rules should establish a mechanism which gives the Pre-Trial Chamber a role in ensuring that the requirements of the Statute and Rules of Procedure regarding disclosure are satisfied. We recommend an automatic ex parte hearing, prior to disclosure, at which the Prosecutor shall provide a basic account of his or her decision regarding disclosure or non-disclosure. This would provide the Chamber with a forum to raise questions and, where necessary, to make orders as to disclosure.

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

It is suggested that these potentially competing human rights interests would be better protected if decisions as to disclosure were not left entirely to the Prosecutor, but involved a limited supervisory role for the Pre-Trial Chamber. 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 Prosecutor's 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.

While, as noted in the previous recommendation, it is important that the Prosecutor go before the Court at any stage when a doubt arises as to whether material should be disclosed, we suggest that this is in itself insufficient. It must be accompanied by the routine review mechanism 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 Prosecutors 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 as to whether it raises any question deserving of judicial consideration.⁽¹¹⁹⁾ 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, as noted below, victims or witnesses should be notified sufficiently in advance of disclosure where their interests may be adversely affected. With the consent of the Court, this hearing would provide the opportunity to make representations as to non-disclosure, which have not been previously resolved with the Prosecutor's office. The interests of efficiency would be served by combining judicial consideration of all matters relevant to pre-trial disclosure in one ex parte hearing.

PROTECTION OF VICTIMS AND WITNESSES AND DISCLOSURE

Recommendation 1: The Prosecutor should have due regard to the protection of the interests of victims and witnesses in making any determination as to disclosure. Measures should be taken not to disclose information, or to delay disclosure, where victims' or witnesses' interests would be adversely affected, so far as consistent with the rights of the accused. Those interests may include safety, physical and psychological well-being, dignity and privacy.⁽¹²⁰⁾

Recommendation 2: Victims and Witnesses should be notified in advance of decisions relating to disclosure that may have a bearing on the protection of their interests. The Prosecutor may do so through consultation with the Victims and Witnesses Unit. Victims or witnesses, or the Unit on their behalf, can then make representations, in accordance with the Statute, to the Prosecutor. If necessary, where issues remain unresolved, the affected persons may request a hearing before the Court, or may be allowed to attend part of the exparte hearing for this purpose.

Comment: The Court has a general power under Article 68 to take measures to protect the interests 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 as part of a document containing both relevant and irrelevant information.

Moreover, Article 68 gives the Court the discretionary power to allow victims to intervene where their interests are affected. Unnecessary or untimely disclosure of information relating to identity and whereabouts could have seriously harmful consequences for victims, witnesses and others. As such, they should be notified prior to disclosure to enable representations to be made to the Prosecutor, and where necessary to the Court, in accordance with the Statute and the Rules of Procedure relating to participation.

DISCLOSURE OF WITNESS IDENTITY TO THE ACCUSED

Recommendation: Where the circumstances so require, the Court should be able to delay disclosure to the defense of a witness's identity, provided always that it must be disclosed sufficiently in advance of trial to allow for the preparation of the accused's defense.

Comment: In principle, full disclosure should take place at an early stage, pursuant to the statutory duty to disclose as soon as practicable.⁽¹²¹⁾ However, every effort must be made to avoid the grave jeopardy to the security of witnesses, and the damage to their other essential interests, that may result from pre-mature disclosure to the defense of witness identity. Where the Court is satisfied that there are legitimate interests which would be adversely affected by the disclosure of identity at that stage, and that the accused's rights under the Statute and international law would not be prejudiced, it should be empowered to delay disclosure of identity.⁽¹²²⁾ For example, this may involve delay until a witness is brought within the protection of a Court witness protection scheme, which may help minimize the risks for victims, witnesses or others.

However, the rights of the accused to prepare his or her defense, and to examine witnesses against him or her, necessitate that identity is disclosed with sufficient time to prepare a defense. At the trial stage, the emphasis must be on other mechanisms that should be developed to protect victims and witnesses.⁽¹²³⁾

Delegates are urged to ensure that victims and witnesses are protected so far as compatible with the absolute respect for the rights of the accused. If these rights are compromised there will be inconsistency with the Statute and a potentially damaging effect on international human rights law and national standards.

DISCLOSURE BY THE DEFENSE

Recommendation: The defense should not be obliged to disclose inculpatory evidence within its possession or control.

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 à vis the process are necessarily 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 exist.

B: THE TRIAL - EVIDENCE

The following is based on proposal DP1, submitted by the delegation of Australia, or the Coordinator's Discussion Paper from the Siracusa meeting as indicated.

ADMISSIBILITY OF EVIDENCE

In principle it is proposed that the Rules should allow the Chambers of the Court a measure of flexibility, consistent with Article 69(4) of the Statute, to determine the admissibility of evidence, rather than setting out in great detail how such a determination is to be made. However, in certain circumstances rules do need to be elaborated in the interests of clarity and predictability, or where national or international experience indicates the need for particular guidance to be given to the Court, such as in relation to the treatment of evidence of crimes of sexual violence.

PRIVILEGE

(Coordinator's Discussion Paper, Rule 6.4)

Recommendation: The ICC Rules of Procedure should recognize that certain information is of a privileged nature and not subject to disclosure absent an order of the Court. The privilege should cover information communicated for the purpose of providing confidential legal, medical or psychological services which further the objectives of the Statute and Rules. The Court may order disclosure of such information only where it determines that the potential prejudice that may result from disclosure is outweighed by the prejudice to the interests of justice that would result from non-disclosure in the particular case.

Comment: 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 help of a legal, medical or psychological nature.⁽¹²⁴⁾ While lawyer/client privilege is essential to the preparation of the accused's defense and the most widely recognised, there are strong public policy reasons that justify the protection of other categories of relationship.⁽¹²⁵⁾

The Statute recognizes certain fundamental interests and corresponding duties of the Court, among them the duty to protect "the safety, physical and psychological well-being, dignity and privacy of victims and witnesses."⁽¹²⁶⁾ Article 43(6), which outlines the role of the Victims and Witnesses Unit in this respect, specifically mandates that "[t]his Unit shall provide ... counseling and other appropriate assistance to victims and witnesses." Consistent with this, the Rules should ensure that a person is able to confide in a counselor, whether within the Registry or outside, without the content of those confidences being subject to disclosure. Victims and witnesses of egregious crimes should be encouraged to seek the full range of physical and mental health services required for their healing. If the defense is allowed unchallenged access to such private materials as counseling records, the chilling effect on the willingness of witnesses to seek this sort of professional help, or on their willingness to assist the Court as witnesses, is potentially severe.⁽¹²⁷⁾

The Rules should empower the Court to order the disclosure of information that falls into a privileged category only where there has been a judicial evaluation that the importance of disclosure outweighs any prejudice that disclosure may cause to the beneficiary of the privilege. Allowing the Court the flexibility to balance the interests of justice in the particular case would allow it to take into account factors such as whether the information was already in the public domain due to prior disclosure by the beneficary of the privilege.

MEANS OF GIVING EVIDENCE PRIOR TO TRIAL

Recommendation: The Rules should allow the Pre-Trial Chamber to authorize depositions to be taken for the subsequent submission as evidence at trial, where a unique opportunity exists to gather the evidence in accordance with Article 56 of the Statute. The Rules should clarify, however, that such measures should be used only when strictly necessary. Either party should be able to make an application. Reasonable notice must be given to the other party, who has a right to be present and to cross-examine the witness being deposed. This process should be possible by way of video link, if the exigencies of the situation so require. Depositions should, where possible, be video recorded.

Comment: Article 56(1)(b) of the Statute provides that where a unique investigative opportunity exists that may not be available at trial, the Pre-Trial Chamber may "take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence." The Rules that expand upon this article should, in particular, 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. This would reflect Rule 71(c) of the ICTY Rules which similarly provides 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." Where the video link mechanism is invoked, the guidelines specified in the next recommendation should apply.

EVIDENCE DURING TRIAL

VIDEO LINK TESTIMONY

Recommendation: The Rules should provide that, where exceptional circumstances and the interests of justice so require, evidence can be given during trial by way of video-link. Such measures should be allowed where the witness is unable to attend the Court, and his or her testimony is considered to be sufficiently important to the case. An officer of the Court should be in attendance with the witness when he or she is giving evidence. Critically, the right to cross-examination must not be compromised.

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 witnesses may be unable 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,⁽¹²⁸⁾ 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 a decision of the ICTY in the Delalic case.⁽¹²⁹⁾ 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."⁽¹³⁰⁾

REPETITIVE TESTIMONY

Recommendation: Where one individual is a witness in several trials in respect of which his or her testimony is the same, the Court should be able to rely on a recording of that testimony rather than requiring the witness to recount the same, often traumatic evidence, repeatedly. However, the right of each defendant to cross-examine must be specifically enshrined.

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, successive 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 interests 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.

CONTROLLING THE MODE AND MANNER OF QUESTIONING

Recommendation: The Rules should reflect that one of the objectives of having the Trial Chamber exercise control over the mode and manner of interrogating witnesses is to avoid harassment or intimidation of witnesses.

Comment: One of the inherent functions of the Chamber is 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.

THE RIGHT AGAINST SELF-INCRIMINATION

(Rule 6.9 of the Coordinator's Discussion Paper)

Recommendation: The right of witnesses not to incriminate themselves should be enshrined in the Rules.

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. The principle enshrined in Rule 6.9 of the Coordinator's Discussion Paper should therefore be supported.

MEASURES OF CONFIDENTIALITY AND CLOSED HEARINGS

Recommendation: The ICC rules of procedure should reflect the power of the Court to take protective measures in exceptional circumstances to preserve the confidentiality of victims and witnesses. In particular, it should recognize the following measures, among others: the removal of names and identifying information from public records; non-disclosure to the public of any records identifying the victim; the use of image- or voice-altering devices or closed circuit television; and the assignment of pseudonyms.

The Rules should additionally give Chambers of the Court the discretion to hold closed sessions where they deem it strictly necessary for the purpose of protecting those interests recognized in the Statute.⁽¹³¹⁾ The ICC Rules of Procedure should ensure that no protective measures will be ordered without the fully informed and freely given consent of the victim/witnesses and that no one shall be forced to relocate against his or her will.

Where an application is made by or on behalf or victims and witnesses to have proceedings conducted in camera, or other special measure designed to protect their interests under Article 68(2), any hearing to determine this matter should itself be held in camera.

Comment: Confidentiality for the purposes of this document should be understood to mean withholding information from the press or public.⁽¹³²⁾ Full public access to ICC proceedings and to information regarding such proceedings is an important safeguard against injustice and should be supported in principle. However, the Court must also take into account genuine concerns for the well-being of witnesses. It should therefore have the power to grant the specific measures recommended above or other comparable measures of confidentiality, where exceptional circumstances so require.

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 are urged to refrain from attempts to draw up exhaustive lists of any such measures. The Rules should, however, make clear that any protective measure taken by any organ of the Court or ordered by a Chamber must be consistent with the rights of the accused. In particular, the right to cross-examine witnesses as an essential component of the right to a fair trial must be respected. The Rules should also make clear that where such measures are sought, the hearing to determine whether or not such measures are necessary should be held in camera.

This recommendation takes into account the flexible provision providing for measures for the protection of victims and witnesses in Rule 75 of the Rules of the ICTY⁽¹³³⁾ and the provision for closed session hearings in Rule 79 of the ICTY Rules.

PENALTIES FOR CONTRAVENTION OF AN ORDER AS AN OFFENSE AGAINST THE COURT

Recommendation: The Rules must ensure that where an order for special measures is made, disclosure in contravention of such an order is an offense against the Court and punishable by adequate penalties.

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 offense 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,⁽¹³⁴⁾ or for the protection of other interests such as privacy.⁽¹³⁵⁾

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

EVIDENCE IN CASES OF SEXUAL VIOLENCE

(Coordinator's Discussion Paper, Rule 6.5)

Recommendation 1: No corroboration of a victim's testimony should be required in cases of sexual violence.

Comment: Prejudicial attitudes frequently lead to the testimony of a victim of sexual violence being treated as per se less reliable, and corroboration being required as a result. Corroboration is not necessary as a matter of law for any crime within the jurisdiction of the Court, as noted at Rules 6.1© of the Coordinator's discussion paper. However, given the reality of court practice in this area, it should be specifically noted that corroboration is not required in cases of sexual violence. This can be done by specific provision in Rules 6.5, or in the general provision, as in 6.1(c).⁽¹³⁶⁾

Recommendation 2: Before any evidence of consent in cases of sexual violence is admitted, the Trial Chamber must be satisfied by the defense, in camera, that the evidence is relevant and credible.

Comment: Given the prospect for harassment and intimidation of witnesses, a higher threshold should apply to the admissibility of evidence of "consent" than to other evidence. The Court should therefore be satisfied that the evidence is both relevant and credible.⁽¹³⁷⁾ The Rules should ensure that the Court make the prior determination of admissibility of such evidence in camera.

It should be noted that Rule 6.5(a) sets out coercive circumstances where consent cannot exist. In such circumstances, the Court may determine that evidence as to consent is therefore irrelevant and inadmissable.⁽¹³⁸⁾ Human Rights Watch supports the view that coercive circumstances should be reflected in the Elements document.⁽¹³⁹⁾

Recommendation 3: Evidence relating to the prior sexual conduct of the victim should not be admissible save in the most exceptional circumstances where the Trial Chamber, sitting in camera, so decides. In no circumstances should evidence of prior sexual conduct be admitted where it is presented for the sole purpose of attacking the character of the victim. Before admitting evidence, the Chamber should be satisfied that the evidence is highly relevant and credible, and is essential for a fair trial.⁽¹⁴⁰⁾

Comment: The ICC rules of evidence relating to rape and other crimes of sexual violence should categorically reject sexual stereotyping and discrimination associated with the public disclosure of victims' sexual history and the introduction of sexual innuendo into the fact finding process. It is essential to specify evidentiary rules for gender-based crimes that ensure their effective adjudication, safeguards against undue invasions of victims, privacy and insulates proceedings from invidious notions that women's mode of dress or lifestyle implies consent to sexual relations, or is relevant to the determination of her credibility. It also essential that the ICC ensure that the accused's right to prepare a defense is unequivocally protected.

Prior sexual conduct will almost never be relevant to the defense case. Such evidence has often been used to intimidate and stigmatize victims of sexual violence. There should therefore be a general presumption that evidence as to prior sexual conduct is inadmissible. The Court should, however, have the power to admit such evidence in specific exceptional circumstances, where it is highly relevant, credible, essential to the accused's defense, and is not being submitted for the purpose of attacking the character of the victim.

For example, the narrow circumstances where evidence of prior sexual conduct may be potentially admissible include (i) specific instances of sexual conduct by the victim, essential to prove that a person other than the accused was the source of semen, injury or other physical evidence, or (ii) so far as evidence of consent is relevant,⁽¹⁴¹⁾ specific instances of sexual conduct with the accused, closely related in time to the alleged offence, offered by the accused to support a defense of consent or mistake of fact as to consent.

With regard to exception (ii) proposed above, it should be recalled that the existence of prior consensual relations does not itself prove the existence of consent on later occasions, nor does it per se justify the presumption by the accused as to consent by the victim on the later occasion. However, where the Court considers that prior sexual relations between the victim and accused is an essential element of proof that, in light of all the facts of the particular case, is relevant to establishing consent or mistake of fact as to consent, it should have the power to admit the evidence on an exceptional basis. It should be noted that evidence of prior sexual conduct with persons other than the accused is entirely irrelevant to the question of consent.

The added safeguard that the defense must satisfy the Court in camera before any evidence is admitted, provides protection for the victim from potential re-traumatization or emotional distress, while safeguarding the accused's right to present an effective defense.

Finally, it should be noted that even in circumstances where such evidence is deemed admissible, the Court should hear the evidence in camera, and order that the record of proceedings not be made public.⁽¹⁴²⁾

CONDUCT OF PROCEEDINGS

(Coordinator's Discussion Paper Rule 6.18)

Recommendation: The Rules should establish a procedure by which proceedings will ordinarily be conducted before a Chamber of the Court. This should govern, in particular, the questioning of witnesses. Consistent with a fair trial, the defense should be able to question any witness testifying on behalf of the prosecution immediately after the prosecution has completed its questioning, and equally the prosecution may question any witness testifying on behalf of the defense immediately after the defense has completed its questioning. The Chamber of the Court should be able to direct questions to the witnesses at any time during the giving of their testimony.

Comment: An important aspect of a fair trial is predictability and consistency as to the manner in which the proceedings will be conducted. This allows both the defense and the prosecution to prepare adequately and appropriately for the trial, maintains the integrity of the Court and ensures that trials can proceed efficiently and expeditiously.

The Rule elaborated should respect the rights of the accused, including the statutory right to "examine or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her."⁽¹⁴³⁾ Proposals that would have, for example, allowed the Prosecutor to question witnesses requested by the defence before the defence has an opportunity to do so run counter to this right.⁽¹⁴⁴⁾

Allowing the Chamber of the Court or the parties to deviate from the basic rule provides a measure of flexibility which, in certain circumstances, may also be necessary for an expeditious hearing. However, this flexibility must be tempered with predictability in order not to jeopardize the rights of an accused or efficiency of proceedings. In failing to establish any parameters for the conduct of proceedings -- beyond agreement by the parties or direction by the Presiding Judge -- Rule 6.18 in the Coordinator's Discussion Paper lacks sufficient specificity to meet these concerns.

1. See The Statute of the International Criminal Court: Some Preliminary Reflections, Antonio Cassese, EJIL1999, 144, p.156, where the author notes that Articles 6,7 and 8 of the Statute "do not confine themselves to indicating in summary fashion the classes of offenses that they do not define: rather, they provide a detailed description of the main elements of the crimes envisaged therein." The author also notes that "many crimes have been defined with the required degree of specificity, and the general principles of criminal liability have been set out in detail." p. 170.

2. See the Summary of proceedings of the first session of the Preparatory Commission, 16-26 February, PCNICC/1999/L.3/Rev.1, p.21, which states "...the elements presume that the conduct is not otherwise legally justified under applicable law referred to in Article 21, paragraph 1(b) and (c) of the Statute. Hence, the element of 'unlawfulness' that exists in the jurisprudence of many of these offences has not been repeated in the elements of crimes."

3. The U.S. paper explains, in the terminology section, that the requirement of knowledge as to the absence of any lawful justification or excuse "permits a defense, especially in the case of obedience to a directive or fulfillment of a duty, when an accused may reasonably believe the excuse or justification was lawful."

4. These provisions do not create an exhaustive list as Article 31 (3) gives the Court the residual power to consider other defenses at trial. The Elements document cannot expand the list of available defenses, to do so would be beyond its mandate.

5. Article 32 entitled "Mistake of Fact or Mistake of Law" provides, inter alia, that "[a] mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may however be a ground for excluding criminal responsibility if it negates the mental element required by such crime … ."

6. Note the comment below in relation to attacks against the civilian population, for example, where there can be no such justification.

7. See Article 21 of the ICC Statute, which provides that the Court shall also apply where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.

8. Preamble to the Rome Statute of the International Criminal Court.

9. According to the terminology section of the U.S. paper, lawful justification or excuse means "justification based on security, military or operational considerations or other imperative reasons of public welfare or other specific lawful authorization or requirement."

10. As such it would mean lawfulness under the Statute, Elements, Rules, international law and, where necessary, general principles of law.

11. While the U.S. paper was proposing an international as opposed to national law standard, a number of delegations expressed concern during the February Preparatory Commission session that these provisions may lead to national law being used as a 'justification or excuse' for criminal conduct.

12. Article 30 of the ICC Statute.

13. George P. Fletcher, Rethinking Criminal Law, Little, Brown and Co; Boston, Toronto, 1978, p. 421, para. 6.4.1.

14. ICTY Judgment, The Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as "Pavo", Hazim Delic, Esad Landzo also known as "Zenga", [hereinafter "Delalic Case"], IT-96-21-T, para 437, 439.

15. IT-97-24-PT, para.12. The Prosecutor's pre-trial brief states "[W]here an accused or a subordinate acts with the intent to inflict grievous bodily harm, the accused or subordinate possesses the requisite mens rea for a willful killing if death in fact results, as one who intends to inflict serious bodily injury necessarily acts in reckless disregard of the possibility that death might result."

16. ICTR-96-4-T, para.589 where the Trial Chamber held that it was sufficient that the accused or subordinate was "reckless whether death ensures [sic] or not."

17. Delalic case, para.424, p.155.

18. Delalic case, ibid.

19. Article 21 of the Statute provides that after applying the Statute, the Elements of Crimes and Rules of Procedure and Evidence, the Court shall apply, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.

20. G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.

21. Article 1(1) of the Convention against Torture provides: "[f]or the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

22. Delalic Case, para. 459, p.167.

23. Drawing upon the definition in the Convention Against Torture, the ICTY has concluded that "torture is the most specific of those offences of mistreatment constituting 'grave breaches' and entails acts or omissions, by or at the instigation of, or with the consent or acquiescence of an official, which are committed for a particular prohibited purpose and cause a severe level of mental or physical pain." Delalic case, para. 442, p.161. See also, The Prosecutor v. Furundzija, IT-95-17/1-T, 10 December 1998.

24. Delalic case, para. 470, p.171.

25. Delalic case, para. 470, p.170.

26. Delalic case, para. 459, p.167.

27. "The Trial Chamber is of the view that cruel treatment involves serious mental or physical injury or a serious attack on human dignity," Delalic case, para. 551, p.195.

28. See Jean Pictet (ed.) Commentary to the IVth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 597 (1958) ("Commentary IV"), p.598.

29. Delalic case, para. 532, p.189.

30. Delalic case, para. 543, p.193.

31. See comments above in the context of Violence Against Life and Person.

32. The U.S. Paper contains such a requirement.

33. See Article 57(2)(a)(i) of Protocol I.

34. See Article 57(2)(a)(ii) and (iii) of Protocol I.

35. Fletcher, Criminal Law, p.445-447. The test for dolus eventualis is described at p. 446 as including variously "being 'indifferent' to the result" and "being 'reconciled' with the result." At p. 447 reference is made to the characterization of recklessness as "manifesting extreme indifference" in theU.S. Model Penal Code.

36. See William J. Fenrick, Symposium: Justice in Cataclysm Criminal Trials in the Wake of Mass Violence. Comment: Attacking the Enemy Civilian as a Punishable Offense, 7 Duke J.Comp & Int'l L.539, p.34.

The author notes that "[t]hose who plan an attack would wilfully launch a deliberate attack on civilians or civilian objects if they were aware of the presence of civilians or civilian object and intentionally attacked or if they recklessly failed to have such information gathered. If good faith efforts are made to gather information but the available information is wrong, no criminal liability should be assigned." (emphasis added)

37. Case No. IT-95-11-I, Decision (March 8, 1996), paragraph 15.

38. Article 51(5)(b) of Protocol I prohibits attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (emphasis added). See also Article 22 of ILC Draft Code of Crimes Against the Peace and Security of Mankind which refers to "methods or means of warfare which are intended or may be reasonable expected to cause...".

39. The high threshold in the U.S. paper is reinforced by the qualification in the U.S. comments section that the evaluation of the accused's knowledge should be "based on the perspective of the accused in planning and conducting the attack, based on what was known at the time of the attack, and with appropriate consideration of the exigent circumstances."

40. See Article 57(2)(a)(ii) and (iii) of Protocol I.

41. The Commentary to Article 51(4)(a) of Protocol 1 states that " most frequently those who give the order or take the decision to attack will do so on the information provided by the competent services of the army. In the majority of cases they will not have the opportunity to check the accuracy of such information; they should at least make sure that the information is precise and recent, and that the precautions laid down in Article 57 are observed. In cases of doubt, additional information must be requested." (p.620, para 1952).

42. Article 51(5)(b) prohibits any "attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

43. The part of the U.S. paper to which these comments relate covers transfers into occupied territory. See Article 8.2(b)(viii)-1 of that paper.

44. According to the Commentary IV, p.283 "this para. [Art. 49(6)] was included to 'prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political or racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.'"

45. The U.S. position appears to derive from misconstruction of an illustrative comment in the ICRC Commentary IV, p.283: "The paragraph provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words 'transfer' and 'deport' is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power." The plain intent of this passage is to distinguish protected persons from the population of the occupying Power, and not to distinguish nationals from non-national members of the occupying Power's population. In any event, the statutory language, and not a passing reference in the Commentary, should be controlling.

46. It should be noted that this provision is even more restrictive than the definition of "deportation or forcible transfer of population" in the crimes against humanity provisions of the Statute, Article 7(2)(d), which refers to forced displacement from "the area where they are lawfully present."

47. Article 27, Vienna Convention on the Law of Treaties.

48. See for example, Article 77 and 78(2) of Protocol I, that makes special provision to ensure that children are "the object of special respect" (Article 77(1)).

49. See for example Article 23(a) of the Regulations annexed to the Convention respecting the Laws and Customs of War on Land 1907, and the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare (Geneva 1925). Both are reprinted in L.Friedman de, The Laws of War: A Documentary History, (1972) p. 204, 270.

50. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris 13 January 1993, [hereafter Chemical Weapons Convention] Article II(2).

51. Article I(1)(b). Also banned is equipment specifically designed for use directly in connection with such munitions and devices, Article I(1)(c).

52. Such weapons are explicitly banned by Article I(5) of the Chemical Weapons Convention. Article I(5) states: "Each State Party undertakes not to use riot control agents as a method of warfare." See Also Article II(7) which states: "'Riot Control Agent' means: Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure."

53. See Article 30(2).

54. Article 8.2(b)(xvii) is based on the Regulations annexed to the Convention respecting the Laws and Customs of War on Land,1907, Article 8.2(b)(xviii) is based on the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare (Geneva 1925). Reprinted in L. Friedman de, The Laws of War: A Documentary History, 1972. p. 204, 270.

55. The ICTR Trial Chamber stated that "[r]ape is a physical invasion of a sexual nature of a person under circumstances that are coercive." The Prosecutor v. Akayesu, para. 688.

56. This follows closely the approach of the ICTY in The Prosecutor v. Furundzija, IT-95-17/1-T, 10 December 1998, para. 185.

57. The Prosecutor v. Furundzija, para. 174. See also Rule 6.5 of the "Discussion Paper proposed by the Coordinator," resulting from the Siracusa Meeting, June 1999.

58. The Prosecutor v. Akayesu, para. 688.

59. Marjan Wijers and Lin Lap-Chew, Trafficking in Women, Forced Labour and Slavery-like Practices in Marriage, Domestic Labour and Prostitution, Summary of the Preliminary Report (Bangkok: Global Alliance Against Traffic in Women; and Utrecht: Foundation Against Trafficking in Women,1996), p.3.

60. Indictment of Gagovic and Others, Case IT-96-23-I (26 June 1996).

61. See Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (New York, Human Rights Watch, 1996), pp.62-65.

62. Ibid., p.895, para. 3170, cited with reference to Article 77 at p.900, para. 3184.

63. Ibid., p.1380, para. 4557.

64. In the comments section, the U.S. paper accepts that "any act yielding causation is sufficient including authorizing an enlistment or conscription."

65. International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff, 1987), p.1352, para. 4462.

66. Note however that victims have rights recognized in international standards that may be implicated in the context of proceedings of the ICC, such as the right to privacy and to the security of person, the right to truth, to access justice and to reparations. This underlies the recognition of victims' interests in the Statute.

67. See for example, Article 68 of the Statute.

68. See in particular the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power UNGA Resolution 40/34, U.N. GAOR 3d Comm., 40th Sess., Annex at 213-215, U.N. Doc. A/40/53, 1986 ("The Victims Declaration").

69. Article 43(6): "The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence."

70. Article 51(4) states that "[t]he Rules of Evidence and Procedure shall be consistent with this Statute."

71. The need for restraint in drawing up the Rules is particularly pertinent given the degree of detail already enshrined in the Statute, unlike the relatively skeletal Statutes of the ICTY and the ICTR.

72. While relevant to the issue of victims in the ICC, this recommendation should also be considered in the context of negotiations on Composition and Administration of the Court

73. Article 15 establishes the ex officio power of the Prosecutor, which provides that the Prosecutor can investigate upon receipt of information from any reliable source, including victims, non governmental organizations and others. Proposals as to specific outreach to victims who may be entitled to participate in proceedings before the Court are dealt with below.

74. Developing a culture of understanding and cooperation between national authorities and the Court is particularly important given the dependence of the ICC on those authorities for the carrying out of its investigations. The ICC, in contrast to the ICTY, enjoys only very limited independent investigative powers and will rely on state cooperation and compliance with its requests for assistance.

75. "Outreach Program Proposal" dated March 31, 1999.

76. The document identified as a contributor to this gap, the lack of "an institutional framework that supports the conduct of criminal proceedings." It further states that it was "exacerbated by the International Tribunal's physical location far from the former Yugoslavia." These problems, in particular the physical dislocation of justice and victims, will be particularly challenging for the ICC which may be investigating cases in many parts of the world, without links to one particular area or region. In this case, the importance of culturally sensitive outreach efforts becomes all the more acute.

77. See Articles 15, 19, 68, and 75.

78. G.A. Res. 40/34, U.N. GAOR 3d Comm., 40th Sess., Annex at p. 213-215, U.N. Doc. A/40/53 (1986).

79. In the French system, the "partie civile" enjoys, among others, the following: the right to disclosure of information from the Prosecutor (Art. 197), right of interrogation of the accused and witnesses (Art. 312), right to submit briefs to court (Art. 315), right to address the court and reply to submissions made on behalf of the defense (Art. 346 & 460), right to receive notice of judicial orders (Art. 183), right to appeal against the orders of the examining magistrate (Art. 186), right to re-open the case (Art. 493). Code de Procedure Penale, 1959 (as translated by J.F. Fergus Belanger).

80. See Dutch Code of Criminal Procedure, Royal Decree of December 4, 1925, Stb. 465, Art. 12f-^{1 and}