NGO COALITION FOR AN INTERNATIONAL CRIMINAL COURT

REPORT ON 6 AUGUST 1997 AFTERNOON SESSION OF PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT

Discussion focused on Article 27.1 and 27.1 bis, and the Chair proposed eliminating bracketed material in 27.1, and developing final criteria to guide Prosecutor's decision to file an indictment. At issue: What degree of proof or evidence is required at this stage for the Prosecutor to go forward? What scope and specifity of evidence shall accompany the indictment? 27.1 bis proposes a deadline prior to confirmation hearing, until which the Prosecutor and defense may add new evidence. Although this provision sets a pre-hearing deadline for the submission of evidence, it doesn't specify that this deadline applies only to evidence which will be introduced at the hearing, and this raised a host of questions. This deadline was questioned, particularly in view of possible internal inconsistency with Article. 27(3) (Portugal], and because the collection of evidence must continue through trial, and the preclusion of evidence after a deadline is inconsistent with the Prosecutor's obligation to disclose exculpatory e

vidence [Egypt, Canada, U.K.], and a deadline like this is inconsistent with a fair trial, especially if new evidence can be of important significance in deciding if a crime was committed [China]. This clause begs the question what notice to the suspect attaches and what degree of participation is contemplated at this stage (when Prosecutor has decided to indict, but prior to confirmation hearing). States did not confront directly the question of what are the pre-indictment rights of the suspect, although a few [U.S., Austria] acknowledged that a suspect under provisional arrest/detention obviously has rights. One state [Portugal) felt that the reviewing body (entity] should have a greater role, especially where the suspect has been subjected to coercive measures (under detention). Many words spent trying to define prima facie, which one state [Ireland] conceded is a "baffling concept." The other question was whether the Prosecutor should be passing on the ICC's jurisdiction here, in deciding admissibilit

y before filing an indictment.

Should Prosecutor review question of admissibility?

Yes, because Prosecutor must be satisfied after gathering evidence that an admissible case exists with respect to each suspect and each crime charged - this is threshold determination which must be satisfied again when indictment is perfected (France, Italy], and admissibility language should be reiterated [Mexico]. One state later [Argentina] noted that admissibility could surface anew in the face of fresh evidence and this is another reason to re-establish admissibility at this stage.

No, must we repeat the conclusion that the case is admissible when Art. 26(4) leaves this for Registrar. The test for admissibility is different, Art. 26.4 leaves this to Registrar, while Prosecutor need only consider Art. 35 [Argentina]; Prosecutor does not have

jurisdictional authority; challenge to admissibility is Art. 35 issue alone (separation of powers argument, like having the Prosecutor or entity pass on ultimate question of defendant's guilt) [Canada, Egypt]; admissibility language is redundant [Greece], admissibility is for the Court, not the Prosecutor [Venezuela].

This also slows down process, and opens admissibility issue for collateral attack (Canada].

One state [Japan) suggested adding complementarity language here.

This was a bit confusing, because Art. 26(4) authorizes Prosecutor to decline filing an indictment (and the (entity] to review her decision) on the basis of inadmissibility, or insufficient basis for .prosecution, or not in the interest of justice. Article 27 only authorizes Prosecutor to consider Article 35 admissibility and threshold evidence question.

Chair noted this discord, and the problem of the language "to conclude", and suggested using Art. 26(4) language.

What Language Elaborates the-Standard of Proof to make out Indictment and Survive Confirmatory Review?

More on prima facie, etc.: Most states agreed that prima facie standard needs clarification.

One state [Portugal] suggested "strong indication of evidence that suspect committed a crime within the jurisdiction of the court".

Another state [Japan] reminded us that proof of a prima facie case does not require proof beyond reasonable doubt.

Another state [China] suggested "obvious, clear and sufficient evidence of a crime."

Another state (Mexico) liked "reasonably well-founded evidence that constitutes a crime within the purview of the court."

Noting that term prima facie is specific to the Anglo-Saxon judicial system, one state [Israel] suggested that perhaps the language of the Siracusa draft could be adopted, seconded by another state [Canada] who proposed "sufficiently strong, reasonably well-founded evidence that a crime has been committed with the Court's jurisdiction, evidence which, if uncontradicted by the defendant, would support a conviction at trial." This standard was adopted by another state [Tanzania], suggesting the omission of the term Prima facie, and requiring evidence "sufficient for conviction if uncontradicted", and evidence showing that the accused is "reasonably Connected with the crimes charged," and reminding us that the presumption of innocence is not implicated at this stage.

One state [Greece] felt prima facie language, even if a common law concept, is acceptable, noting that its definition, like any chosen, has subjective element.

What level of disclosure must accompany Prosecutor's indictment? Some states felt "all evidence" should be amended to read "all pertinent evidence" [France]; one state clarified that this is provisional evidence upon which the case has moved from investigatory to prosecutorial stage [Argentina].

Some states disagreed with this standard [Italy], because of concern that the Prosecutor will fail to disclose exculpatory evidence, if given the option.

Some states liked the idea of "all relevant evidence" [Mexico, Malaysia, Venezuela, Greece).

witness safety/security concerns:

Witness safety [France, South Africa, Nigeria, Jordan] and other security concerns (e.g., where a state has relied for a lead upon politically sensitive information supplied by another state, or where cooperation agreements were entered into in exchange for information) [U.S.) were raised as reasons to limit disclosure of evidence. The lessons of the ICTY were put on the record here (by South Africa], where disclosure of the identity of two witnesses at this stage cost them their lives. Former ICTY Judge Fenrick was given the floor and stressed that these cases were sensitive and concerned victims of sexual assault where the lives of witnesses were at stake. The following were noted as considerations regarding witness/victim confidentiality: exceptional nature of crimes; nature of perpetrators; extreme vulnerability of witnesses; limited nature and scope of procedure; the danger of unrestrained disclosure of "all evidence"; and provisions of Art. 27.5 which provide for the careful disclosure of evidence t

o the defendant. It was suggested that if disclosure of evidence/witness at this stage poses a danger to their lives, the Prosecutor should present a summary of the evidence (protecting identity), but cautioning that the Prosecutor is bound by this summary [South Africa].

One state (Israel] said the Prosecutor should be required to include in the indictment a submission of witnesses' names, which is essential for the accused to prepare his case.

The Chair suggested settling upon the language "sufficient relevant" evidence.

Art. 27 bis - Other comments:

This pre-supposes pre-indictment notice to suspect, and one state (U.S.] expressed general concern with a suspect's participation in proceedings at this stage, and the question of what will be a suspect's access to Prosecutor's file pre-indictment? There was concern that an individual at liberty has greater opportunity, if given notice and the opportunity to appear, to flee, intimidate witnesses, or destroy evidence. Another state [Israel) agreed, that prior to confirmation, the suspect has no right to inspect the evidence, and also felt the deadline should be flexible.

Another state felt that the suspect had no right to participate at the confirmation hearing, but noted that certain rights do attach to an arrested person, without specifying whether this is pre- or post - indictment arrest and if different rights attach once indictment is confirmed.

Another state disagreed [Italy] and felt that the suspect had the right to be present at this confirmation hearing on his indictment, and supported a deadline on this basis, which applies to both parties.

Another state [Tanzania] also felt that the accused was entitled to notice at this stage, sufficient for him to appreciate his case in future.

One state [Canada] felt the idea of a deadline is good, but that maybe it is best left for the Rules. Another state (Nigeria] supported the idea of putting this in the Rules section as well, noting that its wording in 27.1 bis is the wrong way of putting it, because it's improper to preclude evidence until the end of the Prosecution case at trial, and even sometimes after that point.

One state [Argentina] asked whether 27.1 bis deadline applies to evidence for the confirmation of indictment, or for the suspect to be able to contradict the indictment, or for all elements and parties who want to confront evidence at trial, If the latter, then Art. 27.5(b) is superfluous, and are we talking about threshold evidence, or all evidence for trial (which defendant must be able to prepare defense for).

Another state [U.K.] expressed concern that 27.1 bis precludes the Prosecutor from putting forth-later evidence in the interest of justice, although it did not elaborate.

The chair also suggested using the phrase "during the course of

at the beginning of the Article, noting that it was the most popular [Canada]. One state [France] however, suggested "following investigation", because in this state's view, the confirmation process is contemplated at a later stage, and not shortly after the indictment is filed, but closer to the trial.