The Procedure of the ICC: Status and Function of the Prosecutor

In: Max Planck Yearbook of United Nations Law Online

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  • 1 Rome Statute of the International Criminal Court, Doc. A/CONF.183/13 Vol. I. Reprinted in this Volume, see Annex. 2 Rules of Procedure and Evidence, Doc. A/CONF.183/13 Vol. II. 3 And thus, under a classic reading of this formula: N. Luhmann, Das Recht der Gesellschaft, 1993, 214 - 238. 4 See article 51 (4) (5) of the Statute. The Explanatory Note to the RPE specifies that, "The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases.... Direct references to the Statute have been included in the Rules, where appropriate, in order to emphasize the relationship between the Rules and the Rome Statute.... In all cases, the Rules of Procedure and Evidence should be read in conjunction with and subject to the provisions of the Statute".

  • 5 Article 51 (3) of the Statute provides: "After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties". Furthermore, the RPE contain an unusual recognition of the con- cept of judicial precedent. Article 21 (2) of the Statute provides that "the Court may apply principles and rules of law as interpreted in its previous decisions". 6 See discussion under III.

  • 7 See Rule 24. 8 See article 39. 9 Although the office of the prosecutor is an organ of the Court, it exercises executive rather than judicial functions. Cf. Morrison v. Olson, 487 U.S. 654. 10 See D.A. Mundis, "The Assembly of States Parties and the Institutional Framework of the International Criminal Court", AJIL 97 (2003), 132 et seq. 11 See N. Luhmann, Legitimation durch Verfahren, 1983. In entrusting the collectivity of the States parties with legislative powers, the Rome Statute follows institutional developments pioneered, i.e., in modern international environmental law. See V. Roben, "Institutional Developments under Mod- ern International Environmental Agreements", Max Plack UNYB 4 (2000), 363 et seq.

  • 12 See article 42 entitled "The Office of the Prosecutor". 13 Following months of lengthy consultations, the States parties to the Rome Statute elected at the resumed session of the Assembly of States parties, 21- 24 April 2003, Mr. Luis Moreno Ocampo of Argentina as prosecutor of the ICC. See Statement for the Press by the President of the Assembly of States Parties to the Rome Statute of the International Criminal Court, HRH Prince Zeid Raad Al Hussein. 14 But see A. Klip, "State Security and Obtaining Evidence Independently by the Defence", in: H. Roggemann/ P. Sarcevic (eds), National Security and International CriminalJustice, 2003, 127 et seq. (131). 15 A. Cassese, "The Statute of the International Criminal Court: Some Pre- liminary Reflections", EJIL 10 (1999), 144 et seq. (161). 16 Including the United States, China and others. 17 Rule 11 RPE secures the independence in detail. According to this Rule, the Prosecutor may delegate his or her functions exclusively to full staff members of his office but not to so-called gratis personnel within the meaning of article 44 (4) offered by States parties, inter-governmental or non-governmental organizations to the Prosecutor's office.

  • 18 See under IV. 1. 19 See R. Wolfrum/ D. Weissbrodt, (eds), The Right to a Fair Trial, 1998.

  • 20 See arts 21 ICTY Statute, 14 ICPR, 6 ECHR. zl The applicable rationale here has been most succinctly articulated by the European Court of Human Rights in Strasbourg, which is charged with upholding the European Convention on Human Rights. The Court says that the States parties to the Convention cannot free themselves from their obligations under the Convention by setting up international organizations and transferring powers onto them that would otherwise be exercised at the national level. As a consequence, the Court asserts jurisdiction over the acts of the international organization or at least over its foundational (in- ternational law) act. This includes the European Union. See Matthews v United Kingdom, Judgment of 18 February 1999. 22 Chief among them the laws of war.

  • 23 On the legitimacy function of the ICC procedure see the discussion under V.

  • 24 Article 14 of the Statute clarifies that the State party may refer the situation to the Prosecutor for the purpose of determining whether one or more per- sons should be charged with the commission of such crimes. The same is true for a referral by the Security Council. 25 See F. Hoffmeister/ S. Knoke, "Das Vorermittlungsverfahren vor dem In- ternationalen Strafgerichtshof - Priifstein fiir die Effektivitat der neuen Ge- richtsbarkeit im V61kerstrafrecht", ZaoRV 59 (1999), 785 et seq.

  • 26 See G. Dahm/ J. Delbriick/ R.Wolfrum, Volkerrecht, Volume 1/3, 2nd edi- tion, 2002, § 199.

  • 27 See M.H. Arsanjani, "Reflections on the Jurisdiction and Trigger-Mecha- nism of the International Criminal Court", in: H. von Hebel (ed.), Reflec- tions on the International Criminal Court, Essays in Honour of Adriaan Bos, 1999, 57 et seq. (68-70). 28 Any challenge to the jurisdiction of the Court or the admissibility of a case shall take place prior to or at the commencement of the trial (article 19 (4) of the Statute). Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber, thereafter to the Trial Chamber (article 19 (6) of the Statute). Challenges to the jurisdiction of the Court or the admissibility after the commencement of the trial require the leave of the Court (Rule 133 RPE). 29 See Rule 110 (2) RPE pursuant to which the decision of the Pre-Trial Chamber not to confirm the decision taken by the Prosecutor under article 53 (1) (c) or (2) (c) of the Statute has the effect that he or she "shall" pro- ceed with the investigation or prosecution. This is different from the effect of the Pre-Trial Chamber's decision under article 53 (3) (a) of the Statute as defined in Rule 108 (2) RPE. Under this latter Rule, the Pre-Trial Chamber may request the Prosecutor to review his or her decision not to initiate an investigation or not to prosecute. 30 Article 53 (2) of the Statute obligates the Prosecutor to inform the Pre-Trial Chamber of the decision not to proceed with an investigation that has been commenced. Rule 105 (4) RPE provides that the Prosecutor shall inform the Pre-Trial Chamber in writing of his or her decision not to commence the investigation if this decision is taken on the basis of article 53 (1) (c) of the Statute.

  • 3i The authorization of the investigation initiated proprio motu needs to be obtained prior to the notification of states of the investigation which article 18 (1) of the Statute imposes on the Prosecutor. 32 See Cassese, see note 15, 158; N. Gillhoff, "National State and International Criminal Justice - How much Sovereignty has to be transferred?", in: Rog- gemann/ Sarcevic, see note 14, 91. 33 Rule 51 RPE permits a State party challenging the admissibility of a case to introduce evidence as to the functioning of its court system.

  • 34 The Statute does not say explicitly that the Prosecutor's decision to com- mence the investigation pursuant to article 18 (3) needs authorization by the Pre-Trial Chamber. However, article 18 (2) 2nd sentence on the authorization by the Pre-Trial Chamber for an investigation to commence in spite of deferral request would apply by analogy to article 18 (3). At any rate, any investigation initiated by the Prosecutor proprio motu under arts 13 (c) and 15 of the Statute needs to be authorized by the Pre-Trial Cham- ber. 3s Rule 63 (5) provides that the Chambers shall not apply national laws gov- erning evidence, other than in accordance with article 21.

  • 36 See article 54 (1) (a) of the Statute, which provides that "[i]n order to estab- lish the truth", the Prosecutor shall "extend the investigation to cover all facts and evidence related to an assessment of whether there is criminal re- sponsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally".

  • 3� Luhmann, see note 3, 222-226.

  • 38 The procedure to be followed is set out in detail in Rules 123-125 RPE. 39 See arts 64 (7), 68 of the Statute. Under Rule 72 RPE there may be an in camera procedure to consider the relevance or admissibility of evidence with respect to alleged crimes of sexual violence. 40 Rule 50 on the procedure for authorization of the commencement of the investigation; Rule 55 on proceedings under article 18 (2); Rule 58 on pro- ceedings under article 19.

  • 41 Article 29 ICTY Statute and article 28 ICTR Statute. 42 Cassese, see note 15, 164-167.

  • 43 Nothing stands in the way, however, for the Security Council to consider an instance of non-cooperation a threat to international peace and security even if the Council had not previously referred the case to the Court. 44 First enunciated by the ICTY in the Appeals Chamber decision in Blaskic (subpoena) Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber. 4s The Statute and the RPE do not specify whether these preliminary requests are binding on the States parties. In analogy to the argumentation of the ICJ in the LaGrand case the answer must be in the affirmative. 46 See article 72 of the Statute on "Protection of national security informa- tion" ; O. Triffterer, "Security Interests of the Community of States, Basis and Justification of an International Criminal Jurisdiction versus Protec-

  • tion of National Security Information, Article 72 Rome Statute", in: Rog- gemann/ Sarcevic, see note 14, 53. 47 In order to emphasize the importance of the confirmation hearing one may speak of an intermediate phase.

  • 4$ Under the German criminal justice system, the trial court is competent to confirm the charges but only the professional judges not the jurors will sit on the court for this purpose. While in some criminal justice systems in the United States the same judge who tries a case is likely to have reviewed the minutes of the prior grand jury proceeding, the evidence presented to the grand jury is usually only the bare minimum necessary to obtain the in- dictment. Although there may have been hearings before the trial, such hearings generally relate to the admissibility of evidence, and they rarely permit or require the attorneys to explore the merits of the substantive case. 49 The ITCY originally followed the different model of designing the trial and the sentencing phases as separate procedural phases.

  • 50 On the contrasts between the inquisitorial and adversarial (or accusatorial) models, see A.S. Goldstein/ M. Marcus, "The Myth of Judicial Supervision in 'Three Inquisitorial' Systems: France, Italy and Germany", Yale L. J. 87 (1977), 240 et seq. (242-243) note 7, and the literature cited therein. In 1989 Italy abandoned its inquisitorial system in favor of an adversarial one. See L.S. Fassler, "The Italian Penal Procedure Code: An Adversarial System of Criminal Procedure in Continental Europe", Colum J. Transnat'1 L. 29 (1991), 245 et seq. st There is substantial literature though detailing that in these systems, too, the use of practical legal and extra-legal compromises which permit short- cuts to full-blown fact-finding at trial and which substantially limit judicial control of the investigative, pre-trial and trial process. See J.H. Langbein/ L.L. Weinreb, "Continental Criminal Procedure: Myth and Reality", Yale L. J. 87 (1978), 1549 et seq.

  • 52 Throughout the American criminal justice system, the principles of the ad- versarial model are respected by the assumption that at trial the prosecutor and the defense attorney can themselves best present the opposing views of fact and law. On the one hand, trial and appellate rules generally uphold convictions even if they result from defense strategies that seem, at least in retrospect, to have been unhelpful to the defendant's case. On the other hand, convictions are reversed in which the court has unnecessarily inter- vened in the course of the trial. In some cases, however, judicial interven- tion is deemed necessary either to enhance the truth-seeking process or to protect the accused's right to an effective defense. Certain state systems recognize a more active role to the judge. The New York Court of Appeals, for instance, has recognized a variety of situations in which judicial inter- vention is appropriate: "when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts". A trial judge may "seize the affirmative, when proper and necessary, to clarify perplex- ing issues, to develop significant factual information, to enforce propriety, orderliness, decorum and expedition in trial". All of these observations by the New York Court of Appeals, however, carry with them a warning: "In the last analysis ... [the judge] must be guided by the principle that his function is to protect the record, not to make it".

  • 53 Aside from the obligation to investigate the exculpatory facts and evidence and the extensive disclosure obligation the Prosecutor's special role is also evidenced by the fact that the Prosecutor may appeal a Trial Chamber deci- sion of acquittal or conviction or against sentence on its own behalf and on behalf of the accused (article 81 (1),(2) of the Statute). 54 The investigative measures may be authorized only if the state is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9 of the Statute. 55 As do the ad hoc International Criminal Tribunals.

  • s6 In contrast to the International Military Tribunals in Nuremberg and To- kyo, where only the prosecutors had such power. Under the IMT's Stat- utes, the power of the judges was provided only after the commencement of the trial procedure. During the investigation, the prosecutors of the four Allies were solely responsible for the designation of the accused persons and for the preparation and even the final approval of the indictments. Arts 14 (b) and (c), art. 15 (b) and (c) Nuremberg Statute. 57 As it is foreseen under, e.g., the human rights standards of the German Ba- sic Law, article 13.

  • 58 Vertical inter-level judicial cooperation has been a long-standing feature of European integration. See V. Roben, Die Einwirkung der Rechtsprechung des Europilischen Gerichtshofs auf das Mitgliedstaatliche Verfahren, 1998. Recently, the German Federal Constitutional Court has relied on this con- cept to explain the applicable constitutional standards for prosecution of an alleged case of genocide in the Former Yugoslavia in the German courts. 59 See article 59 (2) (a) of the Statute that the warrant applies to that person, (b) the person has been arrested in accordance with the proper procedures and (c) the person's rights have been respected. This needs to be read in conjunction with article 88 of the Statute according to which States parties shall ensure that there are procedures available under their national law for all forms of cooperation specified.

  • 60 Cf. arts 13, 14, 15, 18 (1) (2), 19 of the Statute.

  • 61 The Statute permits the Prosecutor to do the following: Conduct a prelimi- nary examination, evaluate the information made available, seek "informa- tion from States, organs of the United Nations, intergovernmental or non- governmental organizations, or other reliable sources that he or she deems appropriate", and receive "written or oral testimony at the seat of the Court" (article 15 (2) of the Statute).

  • 62 See text at note 31. 63 See article 67 (2) of the Statute for the Trial and Rule 83 RPE. Rule 76 RPE provides for pre-trial disclosure relating to prosecution witnesses, Rule 77 RPE for inspection of material in possession or control of the Prosecutor. Rule 81 RPE is concerned with the restrictions on disclosure. Neither the Statute nor the RPE define the appropriate venue for judicially challenging the decisions of the Prosecutor under these Rules.

  • See, in particular, article 64 (2) of the Statute. 65 See, generally, on the human rights relevance of the pre-trial period, R. Grote, "Protection of Individuals in the Pre-Trial Procedure", in: Wolf- rum/ Weissbrodt, see note 19, 699 et seq. 66 See article 58 of the Statute according to which solely a judicial authority not the prosecutor may issue the arrest warrant under conditions set forth by law (in the instance: international treaty law). 67 See article 21 ICTY Statute, article 14 ICCPR, article 6 ECHR. 68 See K.S. Gallant, "The Role and Powers of Defense Counsel in the Rome Statute of the International Criminal Court", Int'l Law. 34 (2000), 21 et seq.

  • 69 This procedure has been used in the proceedings against Karadzic, Mladic and several others. See S. Furuya, "Rule 61 Procedure in the International Criminal Tribunal for the Former Yugoslavia: A Lesson for the ICC", LJIL 12 (1999), 635 et seq. 70 But cf. ICTY proceedings against Karadzic. 71 This disclosure requirement of the Statute is considerably stricter than that under United States constitutional standards. The leading case on the prosecutorial duty is Brady v. Maryland. In separate trials, the petitioner and a companion were convicted of first degree murder and sentenced to death. At his trial, the petitioner admitted participating in the crime but claimed that his companion had done the actual killing. Prior to trial, the petitioner's attorney requested that the prosecution allow him to examine the companion's extrajudicial statement. One such statement, in which the companion admitted the actual killing, was withheld by the prosecution and did not come to the petitioner's attention until his conviction was con- firmed by the state appellate court. The Supreme Court held that: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prose- cution".

  • �Z But see A. Klip, "State Security and Obtaining Evidence Independently by the Defence", in: Roggemann/ Sarcevic, see note 14, 127 et seq. (131). 73 The existing law and practice of the ICTY may be instructive. The Court's RPE provide that a state, which has failed to comply with obligations un- der the Statute, may be reported to the UN Security Council by the Presi- dent. The Prosecutor may conduct investigations and may request states to take provisional measures. At the request of either party, or proprio motu states must co-operate with the Tribunal promptly. Depositions may be taken at the request of either party, but only the Trial Chamber may so or- der. 74 In the Jelsisic case, the ICTY Trial Chamber terminated the hearing after the initial presentation of the case by the prosecution on the ground that it had not satisfied the standards imposed by the Trial Chamber. 75 Gallant, see note 68.

  • 76 Subject to arts 55 (2) (c) and 67 (1) (d) of the Statute, criteria and proce- dures for assignment of legal assistance shall be established in the Regula- tions, based on a proposal for the Registrar, following consultations with any independent representative body of counsel or legal associations (Rule 21). The person shall freely choose his or her counsel from this list. The de- cision to refuse a request for assignment of counsel by the Registrar is sub- ject to review by the Presidency of the Court whose decision shall be final. » A counsel for the defence shall have established competence in interna- tional or criminal law and procedure, as well as the necessary experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. 78 According to Rule 20 RPE, the registrar has specific responsibilities relat- ing to the rights of the defence consistent with the principle of fair trail. This includes providing support, assistance and information to all defence counsel appearing before the Court and, as appropriate, support for profes- sional investigators necessary for the efficient and effective conduct of the defence. The Registrar is also to assist arrested persons, persons to whom article 55 (2) of the Statute applies, and the accused in obtaining legal advice and the assistance of legal counsel.

  • 79 See Cassese, see note 15, 167; T. van Boven, "The Position of the Victim in the Statute of the International Criminal Court", in: Hebel, see note 27, 77 et seq. (85-90).

  • 80 Rules 89 through Rule 93 RPE contain specific provisions on the partici- pation of victims in the proceedings. Under Rule 90 RPE, a victim may be represented by a legal representative.

  • 81 See M. El Zeidy, "The United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422", Vand. J. Transnat'l L. 35 (2002), 1503 et seq. (1513). 82 See El Zeidy, see above, 1514. 83 See L. Condorelli, "Relationship of the Court with the United Nations", in: A. Cassese et al. (eds), The Rome Statute of the International Criminal Court, 2002, 654. 84 S/RES/1422 (2002) of 12 July 2002, in its operative part, states the follow- ing : "(1) [The Security Council requests], consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving cur- rent or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period start- ing 1 July 2002 not commence or proceed with investigation or prosecution

  • of any such case, unless the Security Council decides otherwise. (2) [ex- presses] the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12 month-periods for as long as may be necessary. (3) Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations".

  • 85 See Luhmann, Legitimation durch Verfahren, 1989, 55-136. 86 The provision of a central institution for the articulation and decision pre- supposes that the world society is structured to a degree incompatible with a Hobbesian view of international relations. 87 Luhmann, see note 85, 242-248.

  • 88 See J. Goldsmith, "The Self-defeating International Criminal Court", U. Chi. L. R. 70 (2003), 89 et seq.

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