Structure of this Section
This section supports the proposal that national security concerns should be dealt with in a freestanding article, which should then be applied to all relevant provisions of the statute. After introductory comments, we make recommendations on the content of that freestanding article, including specific comments on the provisions in Option 2 of Article 71.41 Recommendations then follow concerning the specific articles which have dealt with national security and related questions of confidentiality. Specific concerns of relevance to each article are pointed out, although in general, a strong freestanding article containing the relevant principles will address these specific concerns.
The protection of legitimate interests
States have legitimate security interests which, in the course of cooperating with the ICC, they will seek to protect. It would be unrealistic and indeed irresponsible for an international court to be blind to interests such as the protection of national security. As such, it should be understood that the ICC will operate with due judicial regard for such interests, and due deference to the state's assessment of when they may be in jeopardy. Given the mandate of the International Criminal Court, however, these interests must be balanced against other important and potentially competing interests. These would include the interests of victims, and of the international community as a whole in seeing an end to impunity in respect of the "most serious crimes of concern to the international community...."42 Deference to national security must be tempered by the need to ensure the protection of international security, which is seriously compromised by the commission of heinous crimes and the impunity that so often surrounds them.
There are also compelling interests of the accused and of the international community in ensuring that judgments of the Court are just, rendered in the light of all relevant information, and that the right to a fair trial is absolutelyguaranteed. To meet the challenge of effectively administering international justice, the Court will be reliant on the provision of information by states. Through intelligence and other sources, states will often have access to information concerning the commission of crimes within the Court's jurisdiction that will be essential to ensuring that perpetrators of these serious crimes can be brought to justice. If exculpatory or probative information is withheld by states, miscarriages of justice may ensue. We believe that it is critical to the credibility of the ICC that it observe unequivocally the right of the accused to prepare his or her defense, an essential component of which is access to information of potential relevance to the defense.
The scope of the national security privilege
Given the fundamental nature of these interests, any national security privilege which might impinge upon them must be strictly formulated. The term "national security," is in our view preferable to broader, vague or potentially wide-ranging formulations such as ordre public or "other essential interests," contained in one draft article.
Moreover, and of critical importance, is that it must ultimately be for the Court to determine the applicability of the exception in any concrete case. Delegates should follow the guidance of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in the case of the Prosecutor v. Tihomir Blaskic, which stated: "taking into account the interests at stake, namely those of the international community in the restoration of peace and the bringing of justice to the former Yugoslavia, the international tribunal is best positioned to ascertain the legitimacy of a claim of privilege."43
The Court's statute must ensure that the national security exception applies only in cases where there is a legitimate concern justifying the measures sought and cannot be relied upon by states (or by individuals supported by states)44 as a pretext for interfering with the course of justice. Any provision for a national security exception must not facilitate the withholding of information to avoid incriminating the state's political leadership, or to shield possible criminals from prosecution.
The statute should clearly establish the relevant criteria for assessing genuine and serious prejudice to national security, and the role of the Court as the ultimate arbiter of the issue.
FREESTANDING ARTICLE ON THE PROTECTION OF NATIONAL SECURITY INTERESTS
· Recommendation 1: the framework
The inclusion in the statute of a freestanding provision relating to the protection of national security interests should be supported.
Comment: The initiative to create a freestanding provision reflects the fact that national security concerns arise in relation to a number of distinct provision in different parts of the statute. The principles underlying the treatment of these various provisions ought to be the same, although there are additional concerns specific to particular articles.45 The existence of one article dedicated to enshrining these common principles would provide greater clarity and ensure consistency in the treatment of this important issue throughout the statute. The framework provided by Option 2 of Article 71 should therefore be supported.46 It should be applicable to Articles 58(10) and 68(9),47 and 90(2)48 of the statute and, where appropriate, Article 90(6)[82(5)]49.
· Recommendation 2: The principles
Where a state declares that its national security would be seriously prejudiced by the application of the general rules regarding evidence and the duty to cooperate, the Court should be empowered to grant exceptions to these general rules. The freestanding article should provide for cooperative measures to be taken to resolve conflicts regarding the treatment of sensitive information and avoid the need for adjudication ofthe matter. Where the matter cannot be resolved, a mechanism should be established to ensure that states have adequate opportunity to make confidential representations to the Court as to the serious prejudice to their national security which would result from compliance with the request. Finally, the statute must make clear that ultimate authority rests with the ICC, and not the state concerned, to determine whether an exception shall be granted on the basis of national security in the particular cases.
Comment: A state's interest in protecting its national security, within the meaning attributed to the term contained in widely ratified human rights instruments,50 is entirely legitimate. More wide-ranging formulations contained in the current draft statute51 create uncertainty and susceptibility to abuse and should be deleted.52
It is critical that the statute protect the ultimate authority of the Court to determine any claim made on the basis of national security. A mechanism should be established whereby states can lodge claims and have a full opportunity to explain the national security concerns to the Court, with the confidentiality of those proceedings safeguarded. In the exceptional circumstances where national security is invoked, this may involve in camera or ex parte hearings.53 While we believe the precise details as to the nature ofsuch mechanisms could be elaborated in the rules of the Court,54 we support the measures set out in paragraph 4 of Option 2 of Article 71. It should be necessary to utilize such measures only exceptionally, and the statute should provide for all efforts to be taken by both the Court and the state concerned to resolve disputes by cooperative means.
Option 2 of Article 71 [Article X]
· Recommendation: Paragraphs (1) to (4) of Option 2 of Article 71 should be supported as reflective of the principles set out in the preceding recommendation. Most critically, the provision authorizes the ICC to make the final determination regarding any claim based on national security. The option should, however, be amended, to establish a more feasible standard for the assessment of whether a claim is founded or unfounded.
Option 2 of Article 71 represents a major step forward in negotiations on this difficult issue. One of the essential features of this proposal is that it endows the Court with the ultimate authority, in certain circumstances, to make the determination as to the claim of national security. In this key respect, it is far preferable to the alternative proposals on the table at this stage55 that would enable national security to be used as an absolute bar to the Court's ability to control its own proceedings. Option 2 of Article 71 also contains helpful provisions concerning cooperation between states and the ICC, and proposes mechanisms, such as in camera hearings, that provide appropriate safeguards to ensure the protection of legitimate national security interests.
While Option 2 of Article 71, paragraphs (1) to (4), should therefore be supported, the wording of paragraph (5) should be amended. The circumstances in which the Court will disregard a state's own assessment of the threat to its national security will be exceptional, and the text as it stands is an attempt to reflect this. However, the exceptional circumstances set out in paragraph (5) may impose an impossibly onerous burden on the Court and constitute an insurmountable impediment to its ability to function. Under the present text of this article, the Court would have to be satisfied that each of the circumstances referred to in paragraph (5) exists; that is, for example that it is "clear from the State's action that it is not acting in good faith towards the Court...," and that "the Court is satisfied that the claim56 is manifestly without foundation."
Bad faith should not be part of the relevant criteria. In the absence of bad faith, a state may make an entirely unfounded claim, for example, due to a misunderstanding as to the meaning or scope of the national security privilege under the statute. In this circumstance the Court should retain authority over the interpretation and application of the statute. Or alternatively, the Court may well not, in practice, have access to sufficient information on the basis of which to demonstrate clear bad faith. In either case, it should be sufficient that the Court, after exhausting all of the steps embodied in Option 2 of Article 71 and listening to all arguments the relevant state may wish to pose, determine that a national security claim is unfounded, without having to prove bad faith. The ICC must make those determinations necessary for the proper conduct of proceedings before it; it should not have to engage in the factually difficult and politically sensitive task of judging the bona fides or mala fides of individual states.
STATE COOPERATION: CHALLENGING A REQUEST FROM THE COURT
Article 90(2) Option 2(d)
· Recommendation 1: The statute should not allow states, under any circumstances, to "deny" a request for cooperation. The Court and not the state is the ultimate arbiter of state parties obligations toward theCourt. Reference should be made to the freestanding article, as embodying the relevant criterion and mechanisms for challenging a request, on the basis of the harm to a state's national security that would ensue. Serious prejudice to national security should therefore be the criterion for invoking the provisions of this article, and references to "ordre public" or the undefined and potentially wide-reaching term "essential interests" should be deleted. The reference to evidence being withheld from the Court on the basis that it "relates to" national security or defense, where there was in fact no prejudice to national security interests, should be deleted.
Comment: Both Article 90(2) and Option 3 of Article 7157 make reference to "denying a request" for cooperation on specified national security grounds and, as set out in the preceding section of this commentary, should be deleted. A state would not be legally entitled to "refuse," but rather would be able to petition that the Court, in the light of its submissions, withdraw or alter a request.58 The inappropriateness of broader terms than national security has already been commented upon. Only in the context of Article 90(2) does the criteria of "ordre public" and "other essential interests" appear in the statute, and delegates are urged to delete these unclear and potentially sweeping terms.
The reference to evidence which "relates to" national security or defense is similarly appropriate. Any national security or other provision which may affect the fundamental obligations and interests of the international community and to a defendant in seeing justice done should only be permissible where there is a well-founded basis for believing that compliance with the request would seriously prejudice national security. Potentially, a great deal of material could relate in some tangential sense to national security, without being harmful to it; this provision could lead to potentially relevant material being withheld from the Court, and therefore a defendant.
Reference to the standard in a freestanding article, such as Option 2 of Article 71, rather than the imposition of different criterion for each article, would avoid these problems.
CRIMINAL PROCEDURE: MEASURES TO PROTECT SENSITIVE INFORMATION
· Recommendation: The ability of states to seek measures of protection from the Court to protect the life or physical integrity of their agents and servants should be supported. The protection of sensitive information, which unlike the protection of life and safety can properly be regarded as a national security issue as such, should be subject to the terms of the freestanding article.
Comment: The disclosure of information may, in certain circumstances, expose agents of the state to physical danger and the Court should be empowered to take measures it deems appropriate to address those concerns, consistent with the rights of the accused. This may include measures relating to the manner in which evidence is presented, such as in camera hearings, the use of pseudonyms, voice-altering mechanisms, or redaction of documents, in line with paragraph (4) of Option 2 of Article 71.
Sensitive information, the disclosure of which would seriously prejudice national security, could be protected within the framework of the freestanding national security article.
CRIMINAL PROCEDURE: DISCLOSURE
· Recommendation: The freestanding article would apply to this provision for the Court to make orders for the non-disclosure or protection of documents or information provided by a state on the grounds the disclosure would endanger or prejudice national security. The article should therefore provide that only serious prejudice to national security would justify an order for non-disclosure. Broader formulations, such as endangering "national defense," in the absence ofany real harm should be excluded.59 A mechanism for representations to be made by the state, in accordance with previous recommendations, should also be established.
Comment: The prosecutor has a duty to disclose to the defense all evidence of potential relevance. As an exception to this, non-disclosure of information relevant to the defense must be exceptional. We support endowing the Pre-Trial Chamber with the power to review disclosure and determine the applicability or otherwise of any national security privilege, as established in the freestanding article.
CRIMINAL PROCEDURE: WITNESS INVOCATION OF NATIONAL SECURITY
· Recommendation: The provision allowing individuals to "invoke restrictions provided for in his national law and designed to prevent the disclosure of confidential information connected with national security and national defense" should be amended. The objective criteria established in the freestanding article for the assessment of any claim to national security should also apply to this article. This would ensure that the statute, and not variable national laws, would provide the benchmark to determine the Court's access to information or the use to which information can be put by the Court in the exercise of its functions. The statute should, however, provide that states will not prosecute individuals solely for giving evidence to the Court in violation of national law.
Comment: As set out above, any national security privilege must be established according to objective criteria and be clearly defined. It is for the Court to interpret and apply that definition, determining whether the national security privilege justifies non-disclosure in any given case. Variable national law should not determine the Court's access to information or the use to which information can be put by the Court in the exercise of its functions.
Witnesses will, however, have a legitimate concern to avoid falling afoul of national criminal laws through giving evidence to the ICC; the Court should not force an individual to incur punishment as a result of violating his or her national criminal law. Where the Court rejects a national security claim in these circumstances, the State should not then prosecute the individual for giving evidence to the Court in violation of national law. This would clearly be unfair to the witness in question and would additionally impede the Court's ability to secure important evidence. If the terms of national laws conflict with a state's obligations under the statute, as interpreted by the Court, the state must take necessary steps to give legal effect to its international obligations.60
42 Preamble to the draft statute.
43 IT 95-14PT, July 18, 1997 p.149.
44 As provided for in Article 71, which allows an individual to assert national security and the state to verify the claim.
45 Specific comments of relevance to the particular provisions are set out below.
46 As stated in Section E on complementarity, this provision may apply not only to those articles indicated at paragraph 1, but also to Article 90(5).
47 This article relates to the protection of victims and witnesses.
48 This article relates to the possible grounds for refusing other forms of cooperation.
49 This article relates to information provided for the purposes of generating evidence.
50 National security is referred to in Articles 12, 13, 14, 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR), as a justification for restricting certain rights protected in that instrument. One commentary on the provisions states that "`National' indicates that the anticipated danger must relate to the country as a whole...." while security relates to the "use of force or threat of force against the political independence or territorial integrity of another state." Lockwood, Finn and Jubinsky, "Working Paper for the Committee of Experts on Limitation Provisions," Human Rights Quarterly, vol. 7, no.1 (February 1985), p.71.
51 See Article 90(2) which refers to "ordre public as other essential interests."
52 The importance of narrowing the scope of national security exceptions and the dangers associated with not doing so was expressed by the drafters of the International Covenant on Civil and Political Rights (ICCPR), in the following terms: "If limitations were not clearly defined, but couched in general terms, there was little guarantee that rights would not be violated....In the name of `public order' many a saintly character has been crucified, in the name of `national security' many a patriot guillotined." 10 UN GAOR Annexes (Agenda item 28) p.9, UN Doc, A/2929 (1955).
53 Guidance should be sought from the judgment of the Trial Chamber of the ICTY in the aforementioned Prosecutor v. Tihomir Blaskic case which stated, at para.148: "Consequently, for the purpose of determining the validity of the assertions of a particularstate relating to national security concerns, the Trial Chamber may hold in camera hearings, in a manner consistent with rules 66© and Rule 79. Furthermore, with a view to safeguard the secrecy of the information it may initially conduct ex parte hearings in a manner analogous to that provided to the Trial Chamber or Judge and not necessarily to the requesting party...."
54 Proposals regarding the Regulations of the Court are contained at Article 53. A proposal that detailed provisions regarding national security be dealt with in the regulations was made in the context of former Article 33 and appears in the current draft text of that Article, current Article 58(5)(f).
55 See the proposals submitted to the March/April Preparatory Committee by the delegations of the United States of America and France.
56 The "claim" is a claim by a state that its interests would be prejudiced by disclosure.
57 This is a slightly more restrictive alternative to Article 90(2), presented by the delegation of the United States during the sixth Preparatory Committee session
58 We recognize that this heading applies to other "grounds" beyond national security. As Human Rights Watch opposes the inclusion of unilateral "grounds of refusal," and supports the ultimate authority of the Court to determine such matters, this deletion would be consistent with our views on the question of state cooperation and compliance.
59 See definition set out in the context of Article 90(2)above.
60 The Vienna Convention on the Law of International Treaties, adopted May 23, 1969, sets out the principle of pacta sunt servanda in Article 26, and Article 27 establishes the related principle that, in the event of a conflict between national and international law, the latter prevails: "Internal law and observance of treaties: A party may not invoke the provision of its internal law as justification for its failure to perform a treaty...."
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