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Article 37(8)(d)

· Recommendation 1: States parties should take into account the need for gender balance in the composition of all organs of the Court, including the judiciary.

Comment: The ICC will be better equipped to effectively discharge its mandate if its composition reflects gender balance. Judges will need to incorporate the perspectives of women when making critical decisions regarding the evaluation of evidence and the procedures for examining witnesses. The effective prosecution of gender-related crimes is an important challenge facing this Court. The possibility of successfully meeting this challenge will be greatly enhanced if women are included in the prosecutor's office, the Victim and Witness Unit, and the judiciary. "Gender balance" should be included as a factor for consideration in the election of judges and in the employment of the staff of the Registrar and the prosecutor, as currently proposed in Article 37(8)[30(5)](d).219

The constituent instruments of a number of international bodies make explicit reference to the importance of representation of women within these organizations.220 Regard for gender balance in international bodies has been supported by the 1993 World Conference on Human Rights and the Fourth U.N. World Conference on Women in Beijing. Paragraph 43 of the Vienna Declaration and Programme of Action "...encourages other principal and subsidiary organs of the United Nations to guarantee the participation of women under conditions of equality."

· Recommendation 2: States parties should take into account the need for the representation of the principal legal systems of the world and equitable geographical distribution in the election of the judges. The composition of all organs of the Court should be diverse, on the basis of race, national origin or ethnicity, among other factors.

Comment: Article 37(8)[30](5)](a) and (c) takes into account the representation of the principal legal systems of the world and equitable geographical distribution in the election of the judges. The ICC must be a universal court established to apply international law and the principles of law recognized in major legal systems.

The Court must have within its ranks persons of the highest standing, and should reflect a range of legal backgrounds and traditions--civil, common law and others. Uniformity of excellence, coupled with diversity on the basis set out in the recommendation above, would be an asset throughout the organs of the Court, not exclusively in the judiciary. Other parts of the Court, in particular the Procuracy and the Witness Support and Protection Unit of the Registry, would greatly benefit from an expert staff that was culturally diverse; this would facilitate sensitive and effective dealings with witnesses--in particular victims--and accused persons.


· Recommendation: States parties should take into account the need for legal expertise in sexual and gender violence and in the protection of children, in all organs of the Court, including the judiciary.

Comment: Given the nature of the crimes which the Court will be prosecuting, all organs of the ICC would benefit greatly from legal expertise in sexual and gender violence and in the protection of children. Such experts should also be appointed in the office of the prosecutor, as proposed in Article 43[36](7), and in the staff of the Victims and Witness Unit.

Although Human Rights Watch has recommended that the Court should have no jurisdiction over persons who were under the age of eighteen at the time they are alleged to have committed a crime, the current draft statute leaves open the possibility that children might be prosecuted by the Court. In the unfortunate event that children may appear as defendants before the Court, we recommendthat the Court have legal expertise not only on "violence against children," as envisioned in the current proposals, but on the protection of children generally. This would cover violence against children, the protection of children as witnesses and victims of crimes, and also the rights accorded to children as possible defendants under international juvenile justice standards.


· Recommendation: A Victims and Witnesses Unit should be created within the Registry, operating independently of the Office of the Prosecutor. This unit will protect the physical and psychological well-being of victims, witnesses -- regardless of whether they are testifying for the defense or the prosecution --and their family members, before, during, and after trial proceedings.

Comment: Providing support and protection to witnesses before, during, and after the trial phase is critical to the success of the ICC. Evidence from the International Criminal Tribunals for the Former Yugoslavia and Rwanda overwhelmingly indicate that witnesses face serious security, psychological, and other medical concerns. For example, numerous witnesses, in particular victims of gender-based crimes, have refused to participate in the tribunals' proceedings because of fears of reprisals against them or their families, or because of the social or familial ostracization that may result from having been a victim of a gender-based crime. Victims who do testify may experience profound stigma and shame. For these and other similar reasons, the Victims and Witnesses Unit must provide survivors with basic support and counseling services, in addition to protective measures, to promote their psychological well-being and facilitate their participation in ICC proceedings.

In the light of the unit's mandate, the unit should be located within the Registry of the Court, and not within the Procuracy. The prosecutor will and must be sensitive to the concerns of witnesses in the proper exercise of his or her functions. However, it is possible that conflict could develop between the interests of witnesses, on the one hand, and the interest of the prosecutor's office--in ensuring the effective prosecution of those responsible for serious crimes on the other. In their interventions in the March-April Preparatory Committee session, registrars from the International Criminal Tribunals for the Former Yugoslavia and Rwanda emphasized the "neutral role" of the Registryand supported the location of the Unit within the Registry.221 To ensure that the interests of the witnesses are adequately represented and protected, Human Rights Watch recommends that the unit operate independently from the prosecutor's office.


Article 52(1)

· Recommendation: The Rules of Procedure and Evidence should be adopted separately from the statute for the Court.

Comment: Option 2 of Article 52(1) proposes that the Rules of Procedure and Evidence shall enter into force together with the statute for the ICC. We believe that this proposal would inevitably delay the entry into force of the statute and the establishment of the ICC. The fundamental principles of procedure and evidence which will underlie the creation of the rules should be set forth in the statute, with the detailed manifestation of those principles left for the rules. Given that the ICC statute does in fact set out provisions relating to evidence and procedure with some precision, and that the rules must be drawn up in line with those principles enshrined in the statute, the concerns of those states that have argued that they must see the content of the rules in order to know what kind of Court they will be signing on to, are unfounded. Moreover, it should be borne in mind that the responsibility for drafting the rules, according to the statute, lies with the states parties themselves (as opposed to the judges who would have responsibility only for the internal regulations of the Court).Through ratification, therefore, states can ensure that they are closely involved in the process of creation of the Rules of Evidence and Procedure.222

Delegates are urged not to permit the process of elaboration of the detailed rules of procedure to jeopardize the timely establishment of this institution that the international community so urgently demands.

219 While Article 37(8)[30(5)] sets out the factors to be taken into account in the election of judges, Article 45[37 bis] (2) provides that the criteria in Article 37(8)[30(5)] shall also apply to the employment of the staff of the Registrar and the prosecutor.

220 See for example, Article 9(3) of the Constitution of the International Labor Organization which provides that "A certain number of the staff of the International Labor Office shall be women."

221 "[T]he distinction between witnesses for the prosecutor and for the defense is irrelevant and could in some cases lead to inequitable results.... More often than not, the interest of a witness in securing his or her personal safety will not coincide with the interests of either party in protecting this witness. The interest of the latter will usually be limited to a witness's role in `winning the case'. As in the case of the ICTY, it should therefore be the court which is entrusted with the protection of witnesses. Within the court, it is my position that only the Registry is sufficiently neutral to provide this protection. The Registry is therefore the most appropriate place for the location of a Witness Unit." Address of the Registrar of the International Criminal Tribunal for the former Yugoslavia Mrs. Dorothee de Sampayo Garrido-Nijgh to the Preparatory Committee on the Establishment of an International Criminal Court (March/April Session, 16 March - 3 April 1998, New York), 19 March 1998.

222 The judges for the International Tribunals for the former Yugoslavia and Rwanda were responsible for drafting the Rules of Procedure and Evidence. See statutes of ICTY, Article 15; ICTR, Article 14.

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