In this section we address various important issues relating to the conduct of the trial, covered in Part VI of the statute.
SIGNIFICANCE OF A GUILTY PLEA
Article 65: Proceedings on an admission of guilt
· Recommendation 1: The statute should specify the responsibility of the Trial Chamber, upon receiving a guilty plea, to satisfy itself that such a plea was given freely and knowingly and is supported by the evidence available to the Court. The provision of Article 65 should therefore be retained.
Comment: Article 65 is crucial in safeguarding the defendant from the consequences of mistakenly pleading guilty or from doing so as a result of coercion or other forms of external pressure246. We support the approach in paragraph (3) of allowing the Court the discretion to decide whether, taking into account all the circumstances of the case, the interests of justice demand that the Court proceed as if the guilty plea had not been tendered. Where the Trial Chamber is not so satisfied, it should request further information and/or, in exceptional circumstances where the interests of justice so demand, order that the trial proceed as if the guilty plea had not been rendered.
TRIALS IN ABSENTIA
· Recommendation 1: Trials should not take place in the absence of the accused, and option 1 of Article 63 should therefore be retained.
Comment: Trials in absentia should be prohibited on the basis that they jeopardize the rights of defendants and undermine the credibility of the Court. The ICC must operate according to the highest standards of international justice. This entails respect for a defendant's established legal right, inter alia, to be present during the trial,247 to defend him/herself in person or through counsel of the defendant's choice,248 to examine witnesses against them and to obtain the attendance and examination of witnesses in their support.249
While there is not an absolute prohibition on trials in absentia under international law,250 there is a widespread perception that trials in absentia should not be provided for in the statute as they undermine the rights referred to above, as provided for in article 14 of the International Covenant on Civil and Political Rights.251
The statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda provide that the "accused shall be entitled...to be tried in his presence."252 The Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 notes that "a trial should not commence until the accused is physically present before the International Tribunal. In order to gain the legitimacy which is essential for the discharge of its mandate, the Court should similarly refrain from adopting procedures which may put in jeopardy the protection of the basic legal rights of the accused.
The court should, however, be able to take necessary measures to preserve evidence to ensure that a subsequent trial in the presence of the accused is possible.
PROTECTION OF VICTIMS AND WITNESSES
· Recommendation: Retain the Court's duty to protect the confidentiality253 of witnesses and to take other appropriate measures, provided that such measures are consistent with the rights of the accused. The Court's consideration of whether to grant such protective measures should take place in camera at the request of either party, of the victim or witness concerned, of the Victims and Witnesses Unit, or proprio motu, at any time prior to or during the course of the trial. The parties should have the right to appeal decisions regarding confidentiality.
Comment: Full public access to information regarding ICC proceedings - including information regarding the identities of the participants involved in ICC proceedings -constitutes an important safeguard against injustice.254 However, the Court must take into account genuine concerns for the physical and psychological well-being of witnesses and, in certain exceptional circumstances, grant some degree of confidentiality to protect witnesses and their families from reprisals and to shield them from the stigmatizing effect of public exposure.255 Granting both parties theright to appeal decisions regarding confidentiality will help to ensure that the highest standards of fairness are met.
· Recommendation: In instances where the Court grants confidentiality, the accused, the prosecutor, and state parties should be strictly prohibited from violating its order by releasing confidential information to the press or public. This should include direct and indirect identification of witnesses.
Comment: Releasing information to the public or press can be devastatingly harmful to the physical and psychological welfare of witnesses. Moreover, it can discourage potential witnesses from coming forward to testify. The ICC should firmly censure disclosure of information in violation of its orders.
· Recommendation: Support the ability of states to seek protective measures from the Court to protect the life or physical integrity of their agents and servants. The protection of sensitive information, to which this article also relates, can be provided for in the freestanding article on the protection of national security.
Comment: Comments on this Article are addressed in the section relating to the protection of national security interests, Section M. States should be entitled to seek measures to protect the life and safety of its agents. The protection on sensitive information should be subject to the criteria set out in the freestanding article on national security.
Article 69 
· Recommendation 1: In the provisions relating to the giving of testimony to the Court, an appropriate balance must be struck between the interests of victim and witness protection on the one hand, and the rights of theaccused on the other. In particular, the right to cross-examination of witnesses should be protected. This should be coupled with the addition of a provision granting judges the discretion to control the manner of questioning, to avoid any harassment or intimidation of witnesses, or to prevent unnecessary trauma on their part.0
Comment: The statute appropriately recognizes the need for protective measures in favor of witnesses, particularly victims, while providing that such measures must not compromise the rights of the accused.1 The adoption of such procedures should be supported with a view toward reducing the trauma of victims and witnesses, including minimizing the frequency with which victims must recount the atrocities committed against them.2
However, one of the "rights of the accused" which must not be compromised in any circumstances, is the right to cross-examination in person. This right is one of the minimum guarantees of the right to a fair trial enshrined in international instruments.3 Article 67 of the statute, entitled "the rights of the accused," reflects the relevant international legal provisions, providing that the accused shall be entitled "to examine, or have examined, the prosecution witnesses and to obtain the attendance and examination of witnesses for the defense under the same conditions as witnesses for the prosecution."4 It would be appropriate for theprovisions of the statute relating to evidence to explicitly clarify that the right to cross examination cannot be compromised.5
The Court should protect witnesses, particularly victims, from hostile cross-examination and innuendo during the course of trial. This is particularly important to protect victims of sexual violence from intimidating questions. It is important to grant judges discretion to admit witnesses' direct testimony against all similarly situated defendants. For example, given the likelihood that cases involving successive rapes may come before the ICC, witnesses may have to testify against numerous defendants in the same or separate proceedings. The ICC should adopt procedures with a view toward reducing the trauma of victims and witnesses, including minimizing the frequency with which victims must recount the atrocities committed against them. Judicial discretion to admit witnesses' direct testimony in subsequent proceedings should not, however, infringe on the accused's ability to cross-examine these witnesses or the ability of either party to elicit new testimony.
246 This recommendation supports the original ILC Commentary to Article 38 which stated that following a guilty plea "[The Court] must at a minimum hear an account from the Prosecutor of the case against the accused and ensure for itself that the guilty plea was freely entered and is reliable." We believe that this merits explicit inclusion in the statute.
247 Article 14(3)(d) of the International Covenant on Civil and Political Rights ("ICCPR").
248 Article 14(3)(d) of the ICCPR, Article 6(3)(c) of the European Convention on Human Rights ("ECHR"), and Article 8(2)(d) of the American Convention on Human Rights ("ACHR").
249 Article 14(3)(e) of the ICCPR, Article 6(3)(d) of the ECHR, and Article 8(2)(f) of the ACHR.
250 See the cases of Conteris v. Uruguay (Report, Op. Cit., para 1.5) and Colozza v Italy (1985) 7 EHRR 516 (Series A, No 89; Application No 9024/80), in the particular context of which trials in absentia were deemed violations of the relevant international law. It is acknowledged that the Human Rights Committee, for example, has expressed the view that trials in absentia are permissible when the accused has been informed of proceedings and declined to exercise his or her right to be present. Mbenge v. Zaire (UN Doc.A/37/40)
251 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (UN Doc S/25704), para. 101.
252 See ICTY Statute, Article 21(4)(d) and ICTR Statute, Article 20(4)(d).
253 For purposes of this document, confidentiality refers to the non-disclosure of the victim's or witness' identity to the public or media, achieved by such measures as: the removal of names and identifying information from public records; non-disclosure to the public of any records identifying the victim; the restriction of photographs, sketches, video or audio recording in the precincts of the courtroom; the use of image- or voice-altering devices or closed-circuit television; and the assignment of pseudonyms.
254 Note that while confidentiality can restrict access to or publication of a narrow range of identifying features - name, address, telephone number and photograph - it does not interfere with the press' ability to report fully and accurately the proceedings.
255 The risk of retaliation against witnesses and their relatives on the part of accused persons or their supporters hardly needs to be stated. It is important to note that members of the government, military officers, and others with access to weapons and other means of reprisals or punishment are among the accused. Therefore, public testimony not only endangers the physical safety of witnesses and their family members, but also their job security, pension, housing, and ability to travel. Survivors of sexual violence can be particularly vulnerable to stigmatization. Sexual assault victims can be tainted as ineligible for marriage, or can risk divorce by their husbands, repudiation by their families, and ostracization by their communities. In light of prevailing cultural customs that condemn open discussion of sexual matters, many women can also experience profound shame andhumiliation in testifying about their experiences before strangers. The use of screens and other protective mechanisms to shield witnesses from the public during the course of trial can help secure their emotional and psychological well-being.
0 This recommendation is consistent with Rule 95 c) proposed by Australia and The Netherlands, as well as Rule 75 c)of both ad hoc tribunals. Both rules state, in relevant part: A Trial Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation.
1 Article 68(1) states "The Court shall take the necessary measures available to it to protect the accused, victims and witnesses... [and] may, to that end, conduct closed proceedings or allow the presentation of evidence by electronic or other special means."
2 This could be particularly important to protect victims of sexual violence. Recent history testifies to the frequency with which rape and other sexual violence is used as a weapon of war. Given the consequent likelihood that mass or successive rapes may come before the ICC, witnesses may have to testify, with traumatic results, against numerous defendants in the same or separate proceedings.
3 For example, Article 14(3)(e) of the International Covenant on Civil and Political Rights, Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 8(2)(f) of the American Convention on Human Rights.
4 Article 67(1)(e).
5 Article 69 (evidence) currently provides for the giving of testimony in person, subject to protective measures taken under Article 68 (protection of victims, witnesses and the accused). Article 68 in turn states that those measures will not compromise the "rights of the accused." The right to cross-examination is one such right, protected in the statute, at Article 67 (rights of accused). As such, the right to cross-examination may already be protected by the current draft. However, its protection would be more secure if were made clear in Article 69 that this right must not be compromised, or if Article 68 made explicit that the rights of the accused to which it refers are those enshrined in Article 67 and in international human rights instruments.
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