Rights of the Accused in the International Criminal Court

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Background

The International Criminal Court (the “ICC”) was created by the Rome Statute of the International Criminal Court (the “Rome Statute”) on 17th July, 1998. The Rome Statute was adopted by the Members of the Diplomatic Conference in Rome by an overwhelming majority vote of 120 against 7, with 21 abstentions.[1] On 1st July 2002, the ICC was formally established.[2]

The ICC is the first treaty-based, permanent, international criminal court in history. Its main objective is to help end impunity for the perpetrators of the most heinous crimes: genocide, crimes against humanity, war crimes and aggression[3] (NOTE: the crime of aggression remains undefined and therefore, no accusation can be brought under this chapter until defined by a consensus between Member States).[4] The ICC is a court of last resort. Therefore, it will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility[5].

Type of system

The Rome Statute provides the sources of law that guide the Court:

  1. First, the Rome Statute itself, the Elements of Crime, and the Rules of Procedure and Evidence[6] ;
  2. Secondly, the applicable treaties and the principles and rules of international law and of the international law of armed conflict[7];
  3. Thirdly, general principles of law derived by the Court from national legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Rome Statute and with international law and internationally recognized norms and standard. [8]

International criminal law is influenced by the imperfect Nuremberg and Tokyo military tribunals, which addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War. Although the reach of those two tribunals were limited, they nonetheless laid the foundation of international criminal justice[9]. The principles developed by those two tribunals are still relevant today, and are used by more recent international criminal tribunals including the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. These two ad hoc tribunals have also contributed significantly to the development of international criminal law and their jurisprudence is an important source of international law.

Sources of defendant’s rights

The defendant’s rights are most specifically found in Part 6 of the Rome statute and in the Rules of Procedure and Evidence (“RPE”). The fundamental rights of an accused derive from international conventions, like the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). The ICC observes the highest standards of fairness and due process. The main rights include the following:

  • Right to remain silent and not to be compelled to testify or confess guilt[10];
  • Right to be present during trial[11];
  • Presumed innocent until proven guilty beyond reasonable doubt[[12];
  • Right to have adequate time and facilities for the preparation of the defence[13];
  • Right to be fully informed of the charges against him or her[14];
  • Right to have a lawyer appointed, free of charge if necessary[15];
  • Right to a speedy trial[[16];
  • Right to a public hearing[17];
  • Right to be tried in one’s language and have a free interpreter[18];
  • Right to a public trial[19];
  • Right to examine the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf[20].

The ICC adheres to the ne bis in idem principle, which protects the accused from double jeaopardy or being tried twice for the same crime[21].

To ensure "equality of arms" between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice, and information to defendants and their counsel.

Rights during the pre-trial phase

The Pre-trial Chamber of the ICC ensures the overall integrity of the investigatory proceedings. Their primary concern is upholding the rights of the defence during the investigation phase.

Such rights are provided in both the Rome Statute (article 55) and the RPE and include:

  1. The right to receive a copy of the arrest warrant in the language of the accused;
  2. Right to request for a legal counsel;
  3. Right to request for interim release pending trial. The ruling on such release must be reviewed at least every 120 days;
  4. Pre-Trial Chamber must also ensure that the person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor;
  5. Right to object to the charges, challenge the evidence presented by the Prosecutor, and present evidence;
  6. During the investigation, the suspect has the right not to be compelled to self-incriminate or confess guilt;
  7. Right to be free from coercion, duress or threat, torture or any form of cruel, inhuman, or degrading treatment or punishment;
  8. Right to have a translator, free of any cost;
  9. Right not to be subjected to arbitrary arrest or detention;
  10. Right to remain silent.

Arrest Warrants

The ICC lacks the power to enforce arrest warrants and therefore must rely on member states to do so. State cooperation is thus the key element for efficient processing before an international tribunal. Under the Rome Statute, member states shall comply with requests by the Court for their assistance in investigations or prosecutions. Identification, arrest, and search and seizure are executed pursuant to national laws and the provisions of the Rome Statute. The requested State shall proceed with celerity.

Investigation

Investigations on a situation can be opened in three different ways: referral by a State Party, referral by a Security Council Resolution under Chapter VII of the UN Charter, or on the decision of the Pre-Trial Chamber based on information received from different sources.

The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral, or at any time if the Prosecutor concludes that there has been significant changes in circumstances and that the state is unwilling to genuinely carry out the investigation[22]. The State concerned may appeal the decision of the pre-trial chamber not to defer to the State the investigation[23].

Issues of Admissibility of a Case

The accused or the person for which a warrant of arrest or summon has been issued has the right to challenge the admissibility of the case based on the following grounds:[24]lack of jurisdiction of the Court, that the case has already been investigated by a State, that the accused has already been tried for the same act, or the case is not of sufficient gravity to justify the intervention of the ICC[25].

Search and Seizures

Although the Rome Statute does not provide specific safeguards against abusive search and seizure, the search and seizure privacy right has risen to the level of customary international law pursuant to the definition of article 38 (1)b) of the Rome Statute. Customary international law is a recognized source of law before the ICC[26]. The UDHR was the first international instrument to recognize such a right to privacy[27]. Article 17 of the ICCPR provides similar protection. The rights protected by the ICCPR are not only binding upon signatory, but also on non-signatories states as they have risen to the level of customary international law[28]. The protection granted by international instruments can be summarized as such: (1) a person’s home is inviolable, and (2) interference with that right must be lawful, reasonable, and not arbitrary[29].

Exclusionary Rule

Article 69 (7) of the Rome Statute is an exclusionary rule and reads as follows:

“Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity the proceedings”

Compensation

Pursuant to article 85 of the Rome Statute, anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation.

Court Procedures

Amalgam of two Systems

Although the Rome Statute and the Rules of Evidence and Procedure largely create an adversarial system, the international criminal procedure also encompasses inquisitorial elements. The procedure before the ICC is hence a true amalgam of both systems. The pre-investigative phase is greatly influenced by the inquisitorial system, whereby the Court may decide on its own motion to investigate a case. In addition, the early role of victims also contains notions taken from the inquisitorial tradition. In contrast, the cross-examination right derives from the adversarial common law system.

Bringing a Case

Acase can be brought before the ICC in three different ways. First, a situation can be referred to the ICCby a State Party[30]. As far as possible, a referral shall specifythe relevant circumstances and be accompanied by such supporting documentation[31]. Second, the United Nations Security Council,acting under Chapter VII of the Charter of the United Nations, may refer a caseto the ICC[32].Third, the Prosecutor may initiate investigations proprio motu on thebasis of information on crimes within the jurisdiction of the Court[33]. If the Prosecutor deemsthere is a reasonable basis to proceed with the investigation, he or she shallsubmit to the Pre-Trial Chamber a request for authorization of aninvestigation, together with any supporting material collected. If thePre-Trial Chamber determines there is sufficient basis to proceed with theinvestigation, it shall authorize the commencement of the investigation. If,after preliminary examination, the Prosecutor concludes that the informationprovided does not constitute a reasonable basis for an investigation, he or sheshall inform those who provided the information[34].

Judge Panel

The Rome Statute does not provide the right to a jury trial. Instead, article 36 of the Statute defines the constitution of the judge panel.

Victims

The role of victims is important in a procedure before the ICC[35]. Victims have the ability to participate in hearings, to make written submissions and observations, and to question witnesses at trial. They are typically represented by counsel. In order to participate in the proceedings, a victim must first make an application with the Registrar.

The Victims’ rights may slightly hamper the accused due process’ rights, but there are sufficient safeguards to protect these rights, including the Chamber’s ability to limit the participation of victims. Hence, the right to be considered innocent until proven guilty, the right to a fair and public trial before an independent court, the right to equality of resources and the right to be tried without undue delay are still protected, even in the event of victims’ participation to the trial.

Sentencing

Factors

In determining the sentence, the Court shall take into account the gravity of the crime and the individual circumstances of the convicted person[36]

The Court shall also deduct the time spent in detention related to the same crime[37].

Type of Sentences

  • Imprisonment for a specific number of years, not exceeding 30 years;
  • The maximum sentence is life imprisonment[38]. The ICC does not impose death penalty;
  • Fine;
  • Forfeiture of proceeds, property, and assets derived directly or indirectly from that crime.

Appeals

Appeals can be brought on the following grounds by either the Prosecutor or the convicted[39]:

  • Procedural error;
  • Errors of facts;
  • Error of law;T
  • he convicted may appeal on any other ground that affects the fairness or reliability of the proceedings or decision.

Any party may appeal the sentence on the ground of disproportion between the crime and the sentence. On appeal of the sentence, the Court may also render a judgment on the conviction, and vice versa.

The Appeals Chamber is also responsible for the review of sentence, i.e. to determine whether, after the person has served two thirds of the sentence or 25 years in the case of life imprisonment, the sentence should be reduced.

The Appeals Chamber of ICC is court of last resort. The decision rendered by its judges is final and not appealable.

Decision on Appeal

The Court may reverse or amend the decision or sentence or order a new trial before a different Trial Chamber. The Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment.

The judgment shall be taken by a majority of the judges and shall be delivered in open court. The judgment shall state the reasons on which it is based.

Revision

The convicted may apply to the Appeals Chamber to revise the final judgment of conviction or sentence on the basis of new evidence that was not available at the time of the trial, provided that the unavailability of such decisive evidence was not attributable to the convicted, and that it likely would have resulted in a different verdict[40]. If it appears that decisive evidence was false, forged or falsified, the convicted may also apply for revision.

Other Issues

As of April 2011, three Member States have referred situations occurring in their territories to the ICC: Uganda, Central African Republic, and the Democratic Republic of Congo. The Prosecutor is investigating all the above cases. The Security Council has referred the situation in Darfur, Sudan, to the ICC. However, because Sudan is not a member state the case poses two controversial issues: the jurisdiction of the Court over a state not party to the Rome Statute and an immunity clause extended to states not party to the Rome Statute. On 31st March, 2011, Pre-Trial Chamber II granted the Prosecution authorisation to open an investigation proprio motu in the situation of Kenya. Six people have been summoned to appear before the ICC in April 2011. On 26th February 2011, the Security Council decided unanimously to refer the situation since 15th February 2011 in Libyan Arab Jamahiriya to the ICC. An investigation was opened on 15th March, 2011[41]

See International Law, International Criminal Court

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Notes

<references>
  1. UN DIPLOMATIC CONFERENCE CONCLUDES IN ROME WITH DECISION TO ESTABLISH PERMANENT INTERNATIONAL CRIMINAL COURT , http://www.un.org/press/en/1998/19980720.l2889.html[hereinafter, U.N. Conference on ICC]
  2. 60 days after 60 States had ratified or acceded to the Statute, as prescribed by the Statute.Article 5, Rome Statute.
  3. Article 5, Rome Statute.
  4. Article 5 (2) Rome Statute.
  5. Article 17 (1)a) of the Rome Statute; ICC at Glance, Online, ICC Home page: http://www.icc-cpi.int/menus/icc/about%20the%20court/icc%20at%20a%20glance/icc%20at%20a%20glance?lan=en-GB
  6. Article 21(1)a) Rome Statute.
  7. Article 21(1)b) Rome Statute
  8. Article 21(1)c) Rome Statute
  9. Rome Statute, Online: International Criminal Court [hereinafter ICC Homepage] <http://www.icc-cpi.int/php/show.php?id=basicdocuments
  10. Article 67 (1)g) Rome Statute.
  11. Article 63 (1)) Rome Statute.
  12. Article 66, Rome Statute.
  13. Article 67(1)b), Rome Statute.
  14. Article 67(1)a) and 64 (8), Rome Statute.
  15. Article 67(1)d), Rome Statute.
  16. Article art 64(2)) and 67 (1)(c)Rome Statute.
  17. Article 67, Rome Statute
  18. Article 64(3)b) and 67(1)f), Rome Statute.
  19. Article 64(7) and 67, Rome Statute
  20. Article 67(1)e)
  21. Article 20, Rome Statute.
  22. Article 18 (3) Rome Statute.
  23. Article 18 (4) Rome Statute.
  24. Article 19 (2)a) Rome Statute.
  25. Article 17 Rome Statute.
  26. Article 21(1)b) Rome Statute.
  27. Article 21(1)b) Rome Statute at p. 9. See article 12 of the UDHR.
  28. For a detailed discussion on the subject of the right to privacy in customary international law, see Beller Brian, “A Comparative Study of Exclusion of Evidence on the Grounds of the Means by Which it was Obtained”, Memorandum for the Office of the Prosecutor of the ICTR, Case Western Reserve University School of Law International Crime of Wars Project, (2003) online: http://law.case.edu/war-crimes-research-portal/memoranda/BBeller.pdf at p. 8ss
  29. For a detailed discussion on the subject of the right to privacy in customary international law, see Beller Brian, “A Comparative Study of Exclusion of Evidence on the Grounds of the Means by Which it was Obtained”, Memorandum for the Office of the Prosecutor of the ICTR, Case Western Reserve University School of Law International Crime of Wars Project, (2003) online: http://law.case.edu/war-crimes-research-portal/memoranda/BBeller.pdf at p. 8
  30. Article 14, Rome Statute.
  31. Article 14 (2), Rome Statute.
  32. Article 13 (b), Rome Statute.
  33. Article 15 (1), Rome Statute.
  34. Article 15, Rome Statute.
  35. See AMICC, Questions and Answers on Victims’ Participation and Defendant’s Due Process Rights: Compatible Regimes At the International Criminal Court, available online: http://www.amicc.org/docs/Corrie%20Victims%20Q&A.pdf
  36. Article 78 (1) Rome Statute.
  37. Article 78 (2) Rome Statute.
  38. Article 77, Rome Statute.
  39. Article 81(1) Rome Statute.
  40. Article 84 Rome Statute
  41. ICC Home Page, http://www.icc-cpi.int/menus/icc/situations%20and%20cases/situations%20and%20cases?lan=en-GB.