Human Rights Watch Commentary to the Second
Preparatory Commission on Rules of Procedure and
Elements of Crimes
SECTION I: ELEMENTS OF OFFENSES
Article 9 of the Statute provides that "Elements of Crimes shall assist the Court in the
interpretation and application of articles 6, 7 and 8."
Unduly detailed Elements are more likely to hamper than to assist the Court. The ICC must be
able to interpret its Statute in the light of the particular case, and respond to developments in
international law. The need for restraint is particularly clear given the degree of specificity
enshrined in the Rome Statute, both in respect of the elaboration of the crimes and of the general
principles of criminal law.(1) This stands in contrast to the Statutes of the ICTY and the ICTR
which, like the International Military Tribunal at Nuremberg before them, operate on the basis of
skeletal statutes and without any elements document. Yet by applying existing law to the cases
before them they have made an enormous contribution to the development of international
criminal law. As a result, there is now far greater certainty as to this area of law than existed at
the time of their inception.
Delegates should ensure that the elements of crimes are consistent with international law,
including the jurisprudence that these ad hoc tribunals have developed in relation to many of the
crimes within the Court's purview. However, it is important that, in creating an institution for the
future, they should not seek to freeze definitions by reference to existing jurisprudence in
particular cases, no matter how favorable the definitions contained therein may appear to be.
Finally, as delegates overwhelmingly recognized during the first session of the Preparatory
Commission, consistency between the Elements and the Statute is of paramount importance. The
Elements should of course be consistent with Article 8, but also with the provisions relating to
the general principles of criminal law.
The paper submitted by the U.S. delegation to the February/March Preparatory Commission
(PNICC/1999/DP4) was, together with other proposals, recognized as a basis for negotiations
during that session. At the time of writing this report, Human Rights Watch had not yet seen any
other proposal in relation to Article 8(2)(b), (c) and (e) of the Statute. On this basis, and on the
assumption that U.S. proposal (PNICC/1999/DP4Add.2, hereafter the U.S. paper) will again play
an important role in the debate at the July/August session, much of this commentary addresses
specific points raised in that paper.
This Commentary makes recommendations and explanatory comments in relation to selected
crimes enumerated in Article 8(2) (b), (c) and (d). It does not purport to be exhaustive of the
important issues to be resolved in the debate on elements of crimes.
POINTS COMMON TO SEVERAL OFFENSES
Lawful justification or excuse
Recommendation: There should be no element requiring that the accused's conduct must have
been "without lawful justification or excuse," or that the accused must have known this. So far as
any reference to 'lawfulness' appears in the Elements document, it must be clear that lawfulness
is to be determined in accordance with Article 21 of the Statute.
Comment: The U.S. paper requires, in numerous articles, that the offense was committed
"without lawful justification or excuse" and that the accused knew there was no such justification
or excuse. Consistent with the approach adopted at the first session of the Preparatory
Commission, such requirements should be considered superfluous and omitted.(2)
The Court will not be assisted by provisions that are either redundant in the light of the statutory
provisions or, to the extent that they go beyond those provisions, inconsistent with them. In this
regard it should be noted that the U.S. paper acknowledges that it creates a defense "when an
accused may have reasonably believed the excuse or justification was lawful."(3) Yet permissible
defenses are set out in the Rome Statute, at Article 31, as refined by Articles 32 and 33.(4)
Likewise, a requirement that the accused must have known that there was no lawful justification
appears inconsistent with the principle that ignorance of the law should not be an excuse for the
serious crimes falling within the Court's jurisdiction. This principle is reflected in the Statute.(5)
Human Rights Watch maintains that the extent to which there may be a lawful justification for
conduct that would otherwise be criminal is reflected in the formulation of the crimes
themselves.(6) For example, the Court will assess overall military advantage anticipated before
deciding that an attack affecting civilians was disproportionate. Furthermore, it is unnecessary
and confusing to provide boilerplate language as to specific lawful justifications and excuses
when the Statute specifically refers the Court and litigants to other sources of law to supplement
the Statute, Rules and Elements.(7)
It should also be noted that the inclusion of these defenses as 'elements' of the crime shifts the
burden to the Prosecutor to prove them beyond reasonable doubt. It is suggested that it would
impose an impossibly onerous burden on the Prosecutor to prove, for example, that "the accused
knew there was no lawful justification or excuse."
Policy reasons further dictate that knowledge or belief as to the unlawfulness of conduct should
not be an essential element of crimes which "shock the conscience of humanity."(8) If the ICC is to
have a deterrent impact, military personnel must be encouraged to learn about international law,
not dissuaded from doing so in order to protect themselves from criminal responsibility.
Finally, the lack of clarity as to what would constitute a 'lawful justification or excuse' should be
noted. The formulation in the terminology section of the U.S. paper is overly wide reaching,
given that "security, military or operational considerations or other imperative reasons" could be
invoked to justify the commission of almost any war crime within the Court's jurisdiction.(9)
Indeed the use of the term 'lawfulness' is itself problematic in the absence of clear specification
as to what is the applicable law. If any reference to 'lawfulness' is retained in the Elements, it
should be clear that it is governed by Article 21 of the Statute.(10) It is essential that the Elements
do not contain any provision that might suggest that national law could justify or excuse conduct
that would be criminal under international law.(11)
Act or Omission
Recommendation: Where the crime in question can be committed by act or omission this should
be reflected in the Elements document. This may be done by changing the references to "acts" to
"acts or omissions," or by referring to "conduct."
Comment: Many of the crimes within the Court's jurisdiction may be committed by act or
omission. As noted below, this can be demonstrated by reference to international jurisprudence.
If the Elements are framed solely in terms of "acts," commission by omission is thereby
excluded. The ICC Statute addresses this issue by referring to "conduct."(12) As "both acts and
omissions may be brought under the general rubric conduct,"(13) the Statute allows for the crimes
within its jurisdiction to be committed by act or omission. It is suggested that the Elements
document might track the Statute and simply refer to "conduct," leaving it for the Court to
determine whether the material element is satisfied in any particular case.
ARTICLE 8 (2)(c): VIOLATIONS OF COMMON ARTICLE 3
Article 8 (2)(c)(i) Violence to Life and Person
"...(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
Nota Bene: Article 8 (2)(c)(i) of the Statute covers violence to life and person, in particular
murder, mutilation, etc. It should be recognized therefore that the elements elaborated in relation
to any one form of violence to person do not preclude the possibility that other forms of violence
to life and person might be prosecuted consistent with the Statute. The following comments
relate to the three specific groups of conduct for which elements are proposed in the U.S. paper.
Scope of Persons Protected
Recommendation: The Elements should reflect that violations of common Article 3 are
committed against "persons taking no active part in hostilities."
Comment: Article 8(2)(c) of the Statute, consistent with common Article 3 of the Geneva
Conventions, provides that the crimes set out in Article 8(c) apply to "persons taking no active
part in hostilities, including members of armed forces who have laid down their arms and those
placed hors de combat(. . .)." However, the proposal on "murder" in the U.S. paper applies only
to murder of "one or more soldiers placed hors de combat." This fails to include even the other
specific example contained in the Statute, namely members of the forces who have laid down
arms. It is suggested that the quoted statutory language be used in the Elements paper.
Recommendation: The Elements should reflect that murder involves killing or causing the death
of another, whether with the intention to kill or cause death or in reckless disregard for human
Comment: The U.S. paper's definition of the intent requirement deviates from the mental element
recognized for this crime under existing international law. In the U.S. paper, the accused must intend
"to kill or cause death." However, in The Prosecutor v. Zejnil Delalic, the ICTY found that "the
necessary intent, meaning mens rea, required to establish the crimes of willful killing and murder,
as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the
part of the accused to kill, or inflict serious injury in reckless disregard of human life." (emphasis
added).(14) This is supported by the pre-trial brief in The Prosecutor v. Milan Kovacevic(15) and by the
jurisprudence of the ICTR in the case of The Prosecutor v. Jean Paul Akayesu.(16)
Recommendation: The Elements should reflect that the crime of murder may be committed by
act or omission.
Comment: For murder or homicide of all kinds it is clear that death must result, and that the
conduct of the accused "must be a substantial cause of the death of the victim."(17) The U.S. paper
correctly reflects this. However, death may result from either an act or an omission on the part of
the accused, provided, of course, it is accompanied by the appropriate mental element. In relation
to "willful killing and murder" the ICTY has stated that "omissions as well as concrete actions
can satisfy the actus reus element."(18)
Therefore, the Rules should not be framed solely in terms of "acts," as in the U.S. paper. As
proposed above, this could be dealt with by reference to "conduct," as in Article 30 of the
Statute, which would encompass acts or omissions.
Lawful justification or excuse
Recommendation: There should be no reference to lawful justification or excuse and knowledge
Comment: The reasons underlying this recommendation are fully set out above. Insertion of
lawful justification or excuse as an element of the crime is redundant where it is intended to
supplement the Elements, and is inappropriate where it is designed to shift a defense to the
Prosecutor's burden of proof. General defenses are already provided in the ICC Statute at
Articles 31, 32 and 33. Where additional elements are relevant to proving a crime in a specific
factual situation, international law is available as a source to the Court and to litigants.(19)
Using the illustration in the U.S. paper in respect of murder, it should be noted that it is not
permissible under all circumstances to kill escaping prisoners of war. Article 42 of the Third
Geneva Convention of 1949, provides "[T]he use of weapons against prisoners of war, especially
against those who are escaping or attempting to escape, shall constitute an extreme measure,
which shall always be preceded by warnings appropriate to the circumstances." A guard who
summarily executed an escaping prisoner without giving warnings normally would not be
justified, and ignorance of the law should not be an excuse. Applicable treaties, such as the Third
Geneva Convention, are available to supplement the Elements for the Prosecutor's case in such a
situation: namely, that the prisoner of war was escaping, and the warnings appropriate to the
circumstances were not given.
Recommendation: The Elements should be consistent with the definition of torture enshrined in
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment ("The Convention against Torture"), requiring that severe pain or suffering, whether
physical or mental, be intentionally inflicted on a person for a particular purpose.(20)
Comment: Article 1 of the Convention against Torture sets out a definition of torture(21) that
reflects customary international law.(22) The Elements document should adhere to that definition.
The Elements should also reflect the jurisprudence of the ICTY on this question. That Tribunal
has found that torture "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."(23) It should be noted that in relation to the 'prohibited
purpose' requirement, the Tribunal has pointed out that "there is no requirement that the conduct
must be solely perpetrated for a prohibited purpose." (emphasis added).(24) There should be no
attempt to specify the prohibited purposes as the list set out in the Convention Against Torture is
not exhaustive but "should be regarded as merely representative."(25)
Act or Omission
Recommendation: The Elements should reflect that torture may be committed by act or
Comment: Limiting torture, as the U.S. paper does, to "acts" of torture would be a departure
from international legal standards. Torture may be committed by act or omission, as recognized
by the ICTY in the Delalic case.(26)
NB: These recommendations apply also to Art 8.2(c)(i) relating to the war crime of Inhuman
Recommendation: The Elements should reflect that cruel treatment involves serious mental or
physical injury or a serious attack on human dignity.
This recommendation again follows the approach of the ICTY in the Delalic case.(27)
The Elements should not establish a threshold higher than that applied by the ICTY or that
envisaged in the Commentary to the Geneva Conventions.(28) As such, it can include "a serious
attack on human dignity" (emphasis added).(29)
Act or Omission
Recommendation: The Elements should recognize that cruel treatment can occur by act or
Comment: The ICTY has explicitly included omissions within the scope of cruel or inhuman
treatment. In the Delalic Case, it noted that "inhuman treatment is an intentional act or
Article 8(2)(c)(ii) and Article 8(2)(b)(xxi): Outrages on Personal Dignity
"...(ii) Committing outrages upon personal dignity, in particular humiliating and degrading
Nota Bene: The Statute covers "outrages upon personal dignity, in particular humiliating and
degrading treatment." The U.S. paper treats humiliating and degrading treatment as exhaustive
of the statutory definition, which it is not. As noted above, any Elements that seek to elaborate
on humiliating and degrading treatment as particular manifestations of the crime of "outrages on
personal dignity" cannot preclude the Court exercising jurisdiction over other conduct it deems to
fall within the statutory language.(31)
Custody and Control
NB: This recommendation applies also to Art 8.2(b)(xxi) relating to the crime of Degrading
Recommendation: There should be no requirement of custody and control.
Comment: There is no basis for the requirement that "the accused had custody of or control over
such person or persons at the time of the offense"(32) in the Geneva Conventions or Protocols, nor
in the Statute.
ARTICLE 8(2)(b) and where applicable (e):Other War Crimes
Article 8.2(b)(i) and Article 8.2(e)(i): Attacking Civlians
"...(i) Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities;"
Recommendation: The Elements should reflect that culpability for attacking a civilian
population arises where the accused intentionally attacked knowing that the targets were civilians
or, being someone who planned or decided upon the attack, the accused intentionally or
recklessly failed to take feasible steps to verify the nature of the target.
Comment: The protection of the civilian population, in international and non-international armed
conflicts, is perhaps the most fundamental objective of humanitarian law. "Making the civilian
population the object of attack" is a grave breach of Protocol I, as set out in Article 85(3) of that
Protocol. Article 51(2) of Protocol I specifically states that the civilian population shall "not be
the object of attack," as does Article 13 of Protocol II in relation to non-international conflicts.
This prohibition is accompanied by a duty incumbent on "those who plan or decide upon an
attack" to "do everything feasible to verify that the objectives to be attacked are neither civilians
nor civilian objects but are military objectives."(33) Separate duties relate to avoiding and
minimizing civilian losses and refraining from launching disproportionate attacks.(34)
It is suggested that the mens rea requirement could be satisfied by the extreme indifference
characteristic of recklessness or dolus eventualis in national systems.(35) Regarding direct attacks,
the Elements document should therefore reflect that the crime may be committed not only when
an attack is carried out knowing that the target is civilian, but also when the person planning or
deciding upon the attack recklessly failed to take the required feasible steps to verify the nature
of the target.(36)
Lawful Justification or Excuse
Recommendation: There should be no reference to lawful justification or excuse.
Comment: There can be no lawful justification or excuse for intentionally attacking civilians and
such a requirement should be omitted. In this regard, the ICTY in its decision in The Prosecutor
v. Milan Martic stated: "[t]he opinion of the great majority of legal authorities permits the Trial
Chamber to assert that no circumstances would legitimise an attack against civilians even if it
were a response proportionate to a similar violation perpetrated by the other party."(37) See also the
overriding concerns as to including any reference to 'without lawful justification or excuse'
Article 8.2(b)(iv): Causing Disproportionate Damage
"...(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental
loss of life or injury to civilians or damage to civilian objects or widespread, long term and
excessive damage to the natural environment which would be clearly excessive in relation to the
military advantage anticipated;"
Concrete and Direct
Recommendation: The link between any incidental loss of life, injury or damage in this
provision and the military advantage anticipated must be concrete and direct.
Comment: The "concrete and direct" terminology of the Statute, which reflects Articles 51(5)(b)
and 57(2)(iii) of Protocol I, should also appear in the Elements document.
"Overall" military advantage
Recommendation: Delegates should oppose the remark in the commentary on this element in the
US paper that "the focus on 'overall' military benefits admits for legitimate military benefits that
may or may not be temporally or geographically associated with the specific attack in question or
Comment: The remark in the comments section of the U.S. paper that the legitimate "overall"
military benefits "may or may not be temporally or geographically associated with the specific attack
in question or its object" gives some cause for concern.
While the doctrine of "overall" military advantage does not necessitate an extremely close temporal
or geographic nexus between the attack and the anticipated gain, it is wrong to suggest there need
be no connection whatsoever. Such an interpretation would render meaningless the important
requirement that the advantage must be "concrete and direct."
The broad interpretation in the U.S. comment is potentially all encompassing and provides ample
scope for abuse. An attack that causes civilian loss of life cannot be justified by a military advantage
many months or even years later.
Recommendation: The Elements should specify that the accused launched the attack knowing or
in reckless disregard that civilian losses or injury would be disproportionate.
Comment: The Statute provides that the attack be launched "in the knowledge that such attack"
would cause incidental loss of life or injury to civilians, damage to civilian objects or
environment that would be excessive in relation to the anticipated military advantage.
"Knowledge" should be understood to have the meaning attributed to it in Article 30 of the
Statute, namely "awareness that a circumstance exists or a consequence will occur in the ordinary
course of events." This approach conforms to existing international law, which prohibits attacks
"which may be expected to cause" excessive incidental losses.(38)
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)
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.
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.
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
Lawfulness of Residence
Recommendation: There should be no reference to a person's "lawful place of residence" in the
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
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
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
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
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).
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
Recommendation 3: There should be no reference to sexual violence having to be comparable to
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
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)
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
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;"
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.
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
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
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
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
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
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.
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
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
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
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.
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
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
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)
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
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
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.
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
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
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.
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
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
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
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
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
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
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].
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
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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).
Questions & Answers Factsheet Action Alert Commentary-Feb 1999 Links
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
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
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
12f-2. Germany's use of "Nebenklager" for some crimes elevates the victim to co-prosecutor. Cited in Sue Anna
Moss Cellini, "The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the
Door of the Criminal Justice System to the Victim," 14 Arizona Journal of International and Comparative Law 839.
81. "Querellante adhesivo" means essentially, "adhering complainant," and gives the victim, or his or her
representative, broad participatory rights. See below footnote 15.
82. See for example, the Guatemalan judicial system, wherein the victim or his or her representative can
serve as co-prosecutor. As such, the victim has the right, among others, to receive all judicial communications,
present and cross-examine witnesses and present parallel motions at all proceedings up to sentencing. There is a
right to judicial recourse when the co-prosecutor disagrees with the Prosecutor's decision. (Articles 116, 316, 317,
337 Criminal Procedure Code of Guatemala).
83. In Canada, amendments to the Criminal Code have been drafted that will strengthen victims'
participation in the criminal justice system. In the U.S., more than half the States have a Victims' Rights
Amendment to the State Constitution and several federal laws have been enacted, and a Constitutional Amendment
proposed, to protect victims rights. In Britain, a Victims' Rights Charter was issued by the Home Office in 1990
"officially acknowledging that crime victims are entitled to receive information on their cases, on their right to seek
compensation, on volunteer victims' support groups and on certain rights related to their presence in court." Cited in
Moss Cellini, supra note 15.
84. "In the event of information submitted under Article 15(1), or of oral and written testimony pursuant to
Article 15(2), the Prosecutor shall preserve the confidentiality of any information or take any other necessary
measures pursuant to his or her duty under Articles 68(1) and 54(3)(f) of the Statute. Where appropriate, the
Prosecutor shall seek the intervention of the Victims and Witnesses Unit."
85. Article 15(3).
86. Article 15(6): "If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor
concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall
inform those who provided the information. This shall not preclude the Prosecutor from considering further
information submitted to him or her regarding the same situation in the light of new facts or evidence."
87. Rule C of the Paris Report: "(1) In the event of a decision taken pursuant to Article 15(6), the
Prosecutor shall ensure that notice is provided in a manner that prevents any danger to the safety, well-being and
privacy of those who provided information to him or her under Article 15(1) and (2), or the integrity of
investigations or proceedings. (2) The notice shall also advise of the possibility of submitting further information
regarding the same situation in the light of new facts and evidence. (3) When the original information has been
provided by victims, notice shall be made without unnecessary delay and with compassion and respect for their
88. The Prosecutor v. Jean Paul Akayesu , ICTR-96-4-T; The Prosecutor v. Alfred Musema, ICTR-96-13-I.
89. These rules should also apply if the Prosecutor decides not to pursue an investigation or prosecution at a
90. Article 19 deals with challenges to the jurisdiction of the Court or the admissibility of a case.
91. Victims may have already participated by virtue of having registered an interest following the initial
notification to victims, as recommended below, or because they have provided information pursuant to Article 15 of
92. Article 19(3): "The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or
admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation
under Article 13, as well as victims, may also submit observations to the Court."
93. Note that while Human Rights Watch proposes that there should be an automatic ex parte hearing on
disclosure, this is not contained in the current draft texts. See below.
94. A specific right to intervene at early stages is identified in Articles 15 and 19 and specifically provided
for in the Paris report, as noted above. But other interests also take effect from an early stage. For example, a victim
may wish to ask for protective measures for the security of him/herself or a family member, or to prevent disposal
of assets pursuant to a reparations claim, before an arrest warrant is issued.
95. This will be relevant to the elaboration of Rules in relation to Part 4 of the Statute.
96. The criteria is where it would be "prejudicial to or inconsistent with the rights of the accused and a fair
and impartial trial."
97. Akayesu decision, ICTR-96-4. The facts of the case were particularly troubling as the issue was
representation of a convicted person on appeal, not that of a victim. Nevertheless, even in the case of a victim, the
importance of legal representative is real, as noted above, and the sort of arbitrariness evident in the Akayesu case
must be avoided.
98. It should be noted that assistance may also take other forms, such as keeping a list of counsel that may
assist the victims.
99. The Unit is established by Article 43 of the Statute.
100. In the Tadic case before the ICTY, (IT-94-1) for example, three rape counts were dropped because
certain victims refused to testify.
101. Relocation programs are one such example. Other measures that come into force during the trial, such
as confidentiality, should continue to have effect after the trial when the risks to witnesses continue.
102. See in particular Article 67 of the Statute, which provides for the "rights of the accused." See also,
Article 21(3) that requires consistency with internationally recognized human rights law.
103. Article 43(6) of the Statute.
104. Article 68(1).
105. As provided for in our recommendations on victim participation.
106. See the "Basic Principles and Guidelines on the Right to Reparation for the Victims of Gross
Violations of Human Rights and International Humanitarian Law," by the former special rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Professor Theo van Boven, pursuant to
U.N. Commission on Human Rights resolution 1997/27, adopted on April 11, 1997 (The Van Boven Principles).
This document mentions symbolic reparations such as commemoration of victims or apology and public
acknowledgment of the facts surrounding the crimes as well as other forms of reparation.
107. See Article 75(1) and Article 75(2).
108. See in particular the Van Boven Principles.
109. It is clear that such assets may also go toward satisfaction of the penalty of fine or forfeiture, in
accordance with Article 77(2).
110. Prosecutor v. Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko
Stojilkovic, IT 99 37-I. In that case, the Trial Chamber pointed out that freezing the assets of an accused may be
done for two reasons: for the purpose of granting restitution after conviction and for the purpose of preventing an
accused from using those assets to evade arrest. Decision of Judge Hunt at para 27. IT 99 37-I.
111. See Article 68(3) of the Statute.
112. In accordance with principle 8 of the Van Boven Principles, which provides for the right to be
informed of available procedures for reparations, it is essential that victims are sufficiently informed to be able to
effectively defend their interests.
113. Article 14 of the International Covenant on Civil and Political Rights; UN General Assembly
Resolution 2200 A (XXI); Article 8(1) American Convention on Human Rights; Article 6(1) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
114. ICTY Rule 68, " The Disclosure of Exculpatory Evidence," states that "[t]he prosecutor, shall as soon
as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to
suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence."
115. Article 67.
116. See Article 67(2).
117. Article 21(3) of the Statute states that the application of law must be consistent with internationally
recognized human rights and be without adverse distinction on grounds such as those set out above.
118. Note therefore that the need for this Rule is not obviated by the establishment of a routine pre-trial
review mechanism (see the recommendation below). Questions may arise at any stage of proceedings, including
after the routine review has taken place. Clearly if questions arise before the review, the Rule will provide a forum
in which those concerns can be raised.
119. Such a problem has arisen at the ICTY in relation to the disclosure of a victim's counseling records.
See the decision of the Trial Chamber of the ICTY in the case of The Prosecutor v. Anto Furundzija, 16 July 1998,
120. Article 68(1) of the Statute states tha "[t]he Court shall take appropriate measures to protect the safety,
physical and psychological well-being, dignity and privacy of victims and witnesses."
121. Article 67(2) of the Statute states that the Prosecutor shall "as soon as practicable, disclose to the
defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the
innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution
122. The automatic review mechanism proposed above may facilitate and provide a forum for the Court's
consideration these matters, and provide an opportunity for witnesses to be heard, as the Court deems appropriate.
123. See for example, the recommendations relating to measures of confidentiality, below, and in particular
orders that can be made to the accused as to non-disclosure of witness identity, subject to serious penalties for non-compliance. The provision of effective relocation where the witness so requires must also be available.
124. In the United States, attorney-client, physician-patient, psychotherapist -patient, spousal and religious
privileges are widely applicable, while the parent-child privilege is recognized in a few jurisdictions. (See Michael
Martin, Basic Problems of Evidence, sixth edition). The Federal Republic of Germany recognizes broad categories
of privilege, including and going beyond all of those covered by the recommendation. (See the German Code of
Criminal Procedure ("Strafprozessordnung"), Paragraph 52.
125. Delegates to the Rome conference and the Siracusa intercessional meeting supported recognition of a
broader category of privileges. A footnote that was sent to the Drafting Committee during the Rome Diplomatic
Conference noted that "doctor-patient, lawyer-client and priest-penitent and other similar privileges" should be
considered for the Rules of Evidence and Procedure. See also the Coordinator's Discussion Paper, Rule 6.4.
126. Article 68(1) of the Statute.
127. It gives some cause for concern, therefore, that in the Furundzija case before the ICTY, that Tribunal
allowed the defense full access to Witness A's counseling records without making any prior determination as to the
potential relevance of the record.
128. The Tadic case, IT-94-1-T. Decision on the Defense Motion to Summon and Protect Defense
Witnesses, and on the Giving of Evidence by Video-Link, 25 June 1996.
129. The Delalic et al case, IT-96-21-T. Decision on the Motion to Allow Witnesses K, L and M to Give
Their Testimony by way of Video-Link Conference.
131. Article 68(1).
132. Note that the power to grant confidentiality does not cover withholding information from the accused,
which is dealt with below.
133. Rule 75 provides that "(A) A Judge or a Chamber may, proprio motu or at the request of either party,
or of the victim or witness concerned, or of the Victims and Witnesses Unit, order appropriate measures for the
privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the
accused. (B) A Chamber may hold an in camera proceeding to determine whether to order:(i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness,
or of persons related to or associated with a victim or witness…; (ii) closed sessions, in accordance with Rule 79; (iii)
appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit
134. Article 68(5) of the Statute.
135. Article 68(1) of the Statute.
136. 136 Rule 6.1.(c)) provides that "corroboration is not required for proof of any crime within the jurisdiction of
the Court, including crimes of sexual violence."
137. 137 This reflects the standard in Rule 96 of the ICTY Rules.
138. Rule 6.5 (b) provides that "[n]o consent exists where the victim:
(I) has been subject to or threatened with or has reason to fear violence, duress, detention, or psychological
oppression, abuse of power, or other coercive circumstances, or
(ii) reasonably believed that if the victim did not so submit, another person might be so subjected, threatened or put
139. Delegates are referred to the recommendation on Crimes of Sexual Violence in the Elements section of
140. The right of an accused person to a fair trial is enshrined in Article 67 of the statute.
141. Note the recommendations made on crimes of sexual violence in the Elements section of this
commentary. Consent may not be relevant where the Court is satisfied that coercive circumstances, direct or
indirect, existed at the time of the alleged crime.
142. Article 68(2) provides, in relation to in camera proceedings, that "such measures shall be implemented
in the case of a victim of sexual violence ... unless otherwise ordered by the Court, having regard to all the
circumstances, in particular the views of the victim or witness"
143. Article 67(1)(e).
144. The proposal of the French delegation to the meeting in Siracusa contained such a provision at Rule