Working Group 4 Procedural Matters: Highlights of the IVth Preparatory

Committee on the Establishment of an International Criminal Court

(August 4-15, 1997)

Chairman Mrs. Sylvia Fernandez, Argentina.

Working group 4 discussed the following articles concerning procedural

matters for inclusion in the draft consolidated text of the convention for

an International Criminal Court:

Article 26: Investigation of alleged crimes

Article 26(6): Rights of the suspects

Article 26 ter: Functions of the pre-trial chamber in relation with

investigation

Article 27: Commencement of prosecution

Article 30: Notification of the indictment

Article 37: Trial in presence of the accused

Article 38: Functions and powers of the trial chamber

Article 40: Presumption of innocence

Article 41: Rights of the accused

Article 43: Protection of the [accused], victims and witnesses [and their

participation in the proceedings]

Introduction:

The chairperson began the proceedings by stressing that methodology would

be a challenge for this particular Working Group (WG4) because of the large

number of proposals submitted. The chairperson reminded delegations that

WG4 should focus on key legal principles. Many delegations later

reiterated this need to focus on principles rather than the fine points of

the rules. However, other delegations expressed that it was necessary to

go into greater detail in order to guarantee the proper

application/implementation of such key legal principles.

Of the possible seventeen articles to be discussed, working group four

focused on eight ( seven articles were consolidated). Much of the text

still contains bracketed language which incorporates a variety of proposed

options. Delegations disagreed over legal principles and had difficulties

in departing from national laws and juridical systems and often could not

agree on basic terminology.

It is also important to note that many articles on procedure will be

affected by the discussions on part VII of the statute (on state

cooperation). In any event, the decisions to be made regarding state

cooperation will significantly impact procedural issues such as arrest, the

conduct of investigation and the indictment process.

The following report stresses the primary views on key issues discussed

during the two weeks.

26(1) - Power of the prosecutor to initiate an ex-officio investigation:

At issue is the inclusion of a provision allowing the prosecutor to begin

ex-officio investigations based on any substantiated information . This

option was supported by a number of delegations. Many believed, however,

that the issues was directly related to the topic of trigger mechanisms

(TM) and best left for the WG3. Others expressed reservations about giving

prosecutors such power. The option was left in brackets in the revised

Article.

26(2) - On-Site Investigation:

It was argued that the criteria for on -site investigations be made more

specific. The consent of the state where the investigation was conducted

became a point of discussion. Many believed on-site investigations first

required the cooperation of the state(s). Other delegations insisted that

consideration be given in cases where there is no civil authority to give

consent to an on-site investigation. The likelihood of such a scenario led

some delegates to argue that the ICC must ensure the preservation, and

protection of evidence, to preserve the integrity of an investigation in an

environment where there is great civil upheaval or governmental collapse.

Mr. Fendrick from the office of the prosecutor of the International

Criminal tribunal for the Former Yugoslavia was asked to comment; He

noted that the credibility of on-site evidence could only be guaranteed in

the absence of supervision from state officials where the evidence was

being collected.

26(1) - Pre-trial(X) chamber/ Entity to be determined (ETBD):

Several delegations discussed the creation of a pre-trial body to

supervise the prosecutor's investigation. There was disagreement over the

nature of its powers. One delegation argued that this chamber should a be

judicial body composed of "specialized" judges which would supervise over

any pre-trial prosecution and investigation. They cited the need to

arrive at a compromise between an adversarial (or accusatory) and

inquisitorial legal system, and to guarantee balance between the defense

and prosecution. Several delegations expressed the view that the entity be

used only in specific cases and without prejudice to the independence of

the prosecutor. Others generally supported such a chamber in overseeing an

investigation at the pre-trial stage, but others emphasized the need for an

independent prosecutor.

A delegation argued that debate over judicial supervision at the pre-trial

stage focus on determining the functions of the ETBD (or X chamber) and on

clearly defining the scope of its monitoring power. Many delegations,

however, expressed doubt over having an X chamber supervising the work of

an independent prosecutor. Many agreed that the X chamber should be

empowered to supervise specific investigations requiring special expertise

(e.g. exhumations and on site investigations). Most delegations supported

an X chamber to balance the rights of the defense with the powers of the

prosecutor. A number of different views arose about the function and

structure of the X chamber. One delegation pressed for this chamber to be

involved in supervising most investigatory acts (e.g. subpoenas, warrants,

arrests, decisions not to indict). The proposal that the X chamber be a

judicial body of three members was supported by several delegations.

Support for the X chamber review of any decision not to indict by the

prosecutor (as provided under 26(5)) came from several delegations. The

cost of maintaining an independent staff for the X chamber was also a

concern.

The powers of the pre-trial chamber in relation with investigation was

revisited again during the second week of discussion in light of progress

made during informal consultations about proposed functions of the

pre-trial chamber in relation with investigation; a non-paper attempted to

articulate the powers of the prosecutor and of the pre-trial chamber.

Several delegations stressed that the independence of the prosecutor be

safeguarded. One delegation, supported by several others, commented that

the pre-trial chamber should not be able to order the prosecutor to act

but that its "recommendations" be placed into the record. There should

still, however, be certain circumstances where the chamber could act

directly. For example, prior to an indictment, the chamber should be able

to order an exhumation of bodies or interview an seriously ill or dying

witness. The pre-trial chamber should be able "to take steps to assure a

fair trial . . . in particular the rights of the defense."

Others believed that the pre-trial chamber should have the power to act on

its own volition as well as have the power to give "orders." Several

countries argued that the prosecutor should remain in complete control of

the investigation phase.

26(4) - Decision not to indict by the prosecutor:

Several delegations expressed the need to articulate the consideration

necessary in determining if it is appropriate to proceed with an

indictment.

Discussion was heavily focused on the prosecutor's right not to indict

based on the "interest of justice" as under Art. 26 (4) =A9 of the

abbreviated compilation. Many delegations agreed that the phrase was too

vague and ambiguous. Others saw it as too subjective a standard

especially with regard to the gravity of crimes covered under the statute.

Several delegations suggested the deletion of this provision. Other

delegations argued that a residual margin of discretion should be allowed

to the prosecutor in deciding to proceed with a case and argued for its

inclusion. The other standard retained in the revised article offers such

an option ( where there is not a sufficient basis for prosecution) to

delegations which believed that the "prima facie" standard was unclear.

26(6) - Rights of suspects:

Several delegations expressed that the list containing the rights of the

suspect be merged into article 41 which covers the rights of the accused

provided under the draft statute. Some argued that a dramatic distinction

between the two sets of rights was unwarranted. Other delegations wanted

the distinction to be maintained; although some of the rights should be

equally guaranteed for both suspects and accused, other rights were very

different. The possibility of dealing with both sets of rights in one

article preserving adequate distinctions was noted by the Chair and the

Chair postponed discussion of art. 26(6) until discussion came up on art.

41.

Methodology was the key issue. Several delegations suggested that language

from Article 41 be adapted into 26(6) as necessary. The deputy prosecutor

of the Rwanda tribunal suggested that the discussion be more concrete and

focus on specific events at each stage of the procedure. A draft Article

26(6) was presented by an informal working group and submitted for

discussion.

26(6) bis discussed the case of a violation of a suspect's rights (where

evidence obtained during questioning in violation of such rights would not

be used in the trial unless favorable to the suspect). However several

delegations expressed that these rights should be discussed with Article 44

on evidence.

Art. 27 - Commencement of prosecution:

The discussion focused on Article 27.1 and 27.1 bis . Although the pace

was slower, delegations were able to express their views on important

procedural principles. For the most part, the discussion focused on

developing final criteria to guide the 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 specificity of

evidence shall accompany the indictment? Should the prosecutor review

questions of admissibility? What level of disclosure must accompany the

prosecutor's indictment?

27.1: bis of the abbreviated compilation proposes a deadline prior to a

confirmation hearing until which the Prosecutor and defense could include

new evidence. This deadline was criticized and questioned on the grounds

that the collection of evidence should continue through trial and the

preclusion of evidence after a deadline is inconsistent with the

prosecutor's obligation to disclose exculpatory evidence, and therefore, a

fair trial would no longer be guaranteed. 27 (1) bis was moved to 27 (2)

ter of the revised version which deals with the hearing prior to the

confirmation of the indictment.

27.1: The powers of the prosecutor

Prosecutor's review of the question of admissibility

Delegations disagreed on this issue. Several delegations believed that

admissibility would have already been established under 26(4) by the

registrar and the prosecutor would only need to consider Art. 35. Other

delegations insisted that the prosecutor be satisfied after gathering

evidence that a case is admissible.

Standard of proof to file an indictment

Many delegations had concerns about the notion of a prima facie case, and

agreed that this standard needed clarification. Several alternative texts

were suggested which referred to the sufficient strength of the evidence

presented or that a case does exist against persons named. Several

delegations noted that the prima facie concept was specific to the

Anglo-Saxon system of jurisprudence. Several delegations noted that the

standard here should not be so high as to determine guilt or innocence at

this stage.

Level of disclosure in the prosecutor's indictment

Several delegations reacted strongly to a bracketed provision requiring the

inclusion of all evidence collected by the prosecutor in the indictment.

Their concern was that revealing all the evidence in an indictment would

harm the prosecution and jeopardize the safety of victims and witnesses.

It would also create a great burden of documentation. The final revised

version of Article 27 provides for relevant or sufficient evidence to be

annexed to the indictment.

Reasons to limit the disclosure of evidence included witness safety and

other security concerns when politically sensitive information is

involved. The lessons of the ICTY were cited where disclosure of the

identity of two witnesses cost them their lives. Several states expressed

general concern over the suspect's participation at this stage and

questioned any access to the prosecutor's files prior to indictment,

emphasizing that the suspect's pre-indictment notification could result in

intimidation of witnesses or destruction of evidence and also give the

suspect greater opportunity to flee.

Article 27 (2): review of the indictment

Referring to the sensitive issue of a pre-trial chamber's power at the

pre-trial stage, a number of delegations stressed several principles that

should govern the discussions: procedures must be fair and effective; one

should not export national procedures; only rules of principle should be

included in the statute; and details should be confined to the Rules of

Procedure.

One delegation mentioned that the object of the statute is not to establish

a set of harmonized rules. Rather, the statute should provide (with regard

to this particular provision) efficient and flexible mechanisms for the ICC

to effectively evaluate the cases before it while fully respecting the

rights of the accused .

The X chamber's power in reviewing the indictment

Some delegations opposed the concept of an X chamber whose task would be to

review the indictment. It was argued that there is a serious risk of

delaying the proceedings and a risk that the chamber would obstruct the

dialogue between the two parties. The prosecutor should have the exclusive

responsibility for: preparing and investigating the case and making an

evaluation as to whether there is sufficient evidence in the investigation

as well as phrasing the indictment.

Other delegations stressed that to indict a suspect is a serious matter and

thus, in order to preserve the rights of the accused and the fairness and

effectiveness of the proceedings, an X chamber would be useful to examine

and review the basis of the accusations.

Comments on 27(2) bis: state challenge of the indictment

Several delegation stated that the provision in 27(2)bis allowing concerned

states to challenge the decision of the prosecutor was not essential. The

chair proposed to delete 27(2)bis. This decision, however, was met with

opposition from some delegations who nevertheless accepted that the

drafting could be improved

Comments on 27(2) ter and 27(2) quater: presence and participation of the

accused at the confirmation hearing

Several delegations argued that if a suspect is in custody then he/she

needs to know if there is a case against him/her and, as provided for in

26(2) ter and 26(2) quater, the accused must have the right to argue

his/her case on the evidence submitted by the prosecutor. However, 27(2)

ter and 27(2) quater were thought to be too detailed and the issue was

better dealt with in the Rules of Procedure of the Court. Several

delegations expressed strong reservations with regard to the presence of

the accused at a confirmation hearing while other delegations expressed

that they wished to see a simplified hearing or limited participation of

the suspect . Articles 2 ter and 2 quater were merged into a revised

Article 2 ter.

Comments on 27(4) bis: confirmation of indictment in the absence of the accu=

sed

One delegation expressed the view that there be no confirmation hearing in

the absence of the accused. In response one delegation explained that, in

the interest of the victims, there needs to be a possibility for indictment

in the case where a person has fled or can not be found. At this point,

the Chair intervened and proposed that 27(4)bis be discussed together with

37(4) and 37(5), and made it clear that 27(4)bis might be retained.

Comments on 27(4) ter: Vicim's participation in the proceeding/

Compensation of Victims

One of the authors of this provision explained that there is a need to

further address the interests of victims. It was suggested that this might

be better done elsewhere in the statute. It was argued that mechanisms

whereby victims can make their injuries known to the court must be provided

in order that additional measures could be provided by the X chamber to

protect the property of the victims. Some concern was expressed about

preserving the presumption of innocence. However several delegates

clarified that the point at issue is the question of pre-trial seizure of

assets which is distinguished from confiscation and restitution which are

dealt with under art. 47.

With regard to vicims compensation, delegations discussed the notion of

"direct" injury.. A delegation expressed concern over art. 27[4 ter]

because non-parties were being granted procedural rights which confuses

criminal and civil procedure.

27 (5)(b) - Disclosure of evidence (to the defense)

Suggestions were made to limit the scope of the disclosure provided by art.

27(5)(b). Some delegations criticized its scope as too wide which would

lead to problems about relevancy. Various new language was proposed.

Other concerns included the issue of defining relevance and who would make

such an assessment. One delegation argued that articles 41 and 27(5)(b)

together set the parameters. Other delegations suggested new specific

language on this issue. One state proposed the inclusion of sanctions on

the prosecutor for non-compliance. Others thought such a proposal should

not be in art. 27 but be included in the rules.

27(5)(d) - Protection of confidential information

Some delegations expressed their concern over the dissemination of

"sensitive" information throughout the proceedings. ICTFY Rule 70(b) was

deemed inadequate to protect such information from being leaked by one

State because such information was allowed for more than "lead purposes" in

Rule 70. It was also argued that a prosecutor may not know what is or is

not sensitive; therefore states should be able to apply for a court order

securing such information. Other delegations noted the importance of

finding a means to protect a state's legitimate interest in security.

27(5)(d) - Protection for victims and witnesses

One delegation noted the differentiation between protection of the accused

and protection of victims and therefore proposed splitting 27(5)(d) into

separate articles regarding the protection of the accused, protection of

witnesses and victims, and the confidentiality of information.

27(5)(a) - Language interpretation and the accused

Some delegations reiterated the need to ensure that translation and

interpretation services for both the proceedings and the notice of the

indictment be made available to the accused. The Chair, in closing, noted

that such a provision should be added.

Article 28: arrest

Several delegations commented on the length of Article 28 which had

already been reduced from eleven pages in the volume 2 to seven pages in

the abbreviated compilation. A working paper shortening Article 28 was

submitted for discussion. The Chair noted that the article should focus

on procedure as provisions regarding arrest would also be discussed in

the working group on state cooperation.

Most delegations welcomed a simplified and clearer version of Article 28

and accepted it as the basis for future discussion, provided that it would

not prejudice those provisions on cooperation. Other proposals were

submitted and the Chair suggested that they should be integrated in the

comprehensive proposal for future discussion.

Art. 30 - Notice to the accused

There were a variety of views as to what procedural mechanism should be

used to give notice to the accused. Additional language was proposed by

various delegations. The Chair, in closing, agreed to the addition of "and

the Rules" after "this Statute" in paragraph 1 (c). The Chair noted the

need for more discussion regarding proposed paragraph 1 bis. in art. 30

which focused on confidentiality. A connection was drawn between this

provision and the earlier discussion on disclosure and the Chair also

suggested that those delegations concerned with disclosure of work product

draft a single provision. As for paragraphs 3 through 5, the Chair

proposed a time limit of 60 days post indictment requirement for providing

notice to the accused (first line of para. 3). Upon the suggestion of one

delegation, the Chair agreed to delete paragraph 4 and move it to the Rules

section. The Chair also agreed to the request of some delegations to move

paragraph 5, addressing the rights of the accused, into art. 41.

Article 37: Trial in the presence of the accused

Noting that several delegations had already submitted proposals on this

point, the Chairperson asked the delegates not to discuss the legal

principle but focus on ensuring that all options had been included in the

text (the three main options to the ILC text appear in the abbreviated

compilation). In the revised article, only option 3 was simplified and a

fourth option was added. A few delegations expressly supported option one

which prohibits any trial to be held in the absence of the accused.

Options 2 and 3 and the ILC text provide a limited list of cases where a

trial in the absence of the accused should be made possible. Option 2 is

the most restrictive (after option 1) since it allows for trials in the

absence of the accused in limited cases only when the latter has been

present at the commencement of the trial thereafter. Option 3 allows for

much broader exceptions, adding in particular, the case in which the

accused does not appear on the day of the hearing (after having been duly

informed).

One delegation proposed a fourth option to replace para.1 and 2 of the ILC

Draft with art.41 of the 1993 Draft Statute which reads, "the accused

shall have the right to be present at the trial unless the trial chamber,

having heard all submissions and evidence as it deems necessary, concludes

that the absence of the accused is deliberate."

Paragraphs 4 and 5 of the ILC draft were subjects of disagreement. Several

delegations believed that such provisions (respectively dealing with the

power of an indictment chamber in the absence of the accused to establish a

prima facie case and to issue an arrest warrant and with the subsequent

trial of the accused) were better dealt with under the provisions on the

pre-trial chamber. Other delegations insisted on retaining these

provisions under Article 37. See footnote on page 2 of the revised article.

Article 38: functions and powers of the trial chamber

The Chairperson stressed that Article 38's formulation was too long and

subsequently invited the delegations to submit more succinct solutions.

Most delegations agreed to the Chair's request to simplify Article 38 and

to avoid unnecessary details. WG4 successfully revised a long, and

sometimes repetitive, text into a more simple form by merging, deleting,

and redrafting various provisions.

Many delegations expressed support for the original ILC draft for most of

para 1., which was left essentially intact but other proposals in the

abbreviated compilation were not retained. The authors of some of the

proposals admitted they would be better addressed in the rules of the

court. The detailed paragraphs 2 bis and 2 ter were merged in a short

article 2 bis. which left it to the president of the trial chamber to

decide, with impartiality, the production of evidence by the parties. With

limited additions ( most of them referring to pre-trial motions) , the ILC

text was retained from articles 3 to 6. Article 7 of the abbreviated

compilation was merged under 5(b)of the revised version.

Article 38bis: proceedings on an admission of guilt

The drafters of Article 38bis explained it was developed to reconcile the

differences between common law and civil law systems over the concept of an

admission of guilt. Many civil law countries expressed strong opposition

to any plea bargaining mechanism. Several delegations stressed that

admission of guilt by the accused, should not be a sufficient basis for the

determination of guilt alone and that admission of evidence was also

necessary.

A delegation stressed that under 38 bis, the admission of guilt was not

binding on the court since it would have to determine in any case if the

conditions in lett. a), b), I), ii) are satisfied.

Limited additions were made and one delegation, supported by many,

requested that the interests of the victims be added as a consideration for

a more complete proceeding at the end of para.4. It was also proposed that

a paragraph 5 be added in order to specify that the admission of guilt by

the accused and any plea negotiations between the parties would not be

binding on the court.

Several delegations commented that 38(bis) was a fair balance between civil

and common law jurisprudence and expressed their full support for 38(bis).

Several delegations insisted that the accused be guaranteed defense counsel

at all times. One delegation felt that if the trial chamber believes that

an admission of guilt was not voluntary then the case should go back to a

full trial. After reaching agreement on a redrafted para.5, agreement was

reached on 38bis and the brackets were removed around the article as a

whole.

Article 40: Presumption of innocence

One delegation questioned the need of retaining Article 40 since the

presumption of innocence was already an established principle under all

legal systems and was a right granted to any person. It was also noted

that the principle had been dealt with by the working group on general

principles of criminal law. Other delegations were concerned by the

concept of establishing guilt "beyond a reasonable doubt" which was viewed

as inadequate in light of the notion of the presumption of innocence.

Other delegations expressed that the presumption of innocence could be

integrated into Article 41 with the rights of the accused. Other

delegations stressed that the qualification "in accordance with the law"

was extremely confusing because there was no mention of which law should

apply.

Article 41: Rights of the accused

Several delegations noted that the rights of suspects are not as developed

as the rights of the accused under international law. Several delegations

attempted to define suspect and accused. Several delegations agreed that

a suspect was a person who was or had been investigated but not yet

charged/indicted. Another delegation believed that an accused was a

person mentioned in an indictment but a suspect was a person designated in

a complaint brought by the court. Other delegations stressed that persons

detained prior to indictment should also be considered as being accused.

One delegation, with supported from several others, made the point that

such definitions needed to be more concrete and should attach to

significant events. In particular, arrest was a significant event where

specific rights should be guaranteed. Several delegations thought the

confirmation hearing was the best time to extend the rights of the accused

to a person. Another delegation believed that it would be difficult to

consider that an indicted person fleeing arrest was not an accused person.

Several delegations stressed that the text of 41(1) should include the

exact same language as the ICCPR Article from which article was originally

derived. Therefore no modification or at deletions would be necessary.

The words "in full equality" were added at the end of the first para of

Article 41.

Several delegations raised the issue that the right to legal assistance

assigned by the court should be broader than the requirements that the

accused is without sufficient means or is unable to secure counsel. The

new article also provide for legal assistance assigned by the court where

the interests of justice so required.

Several countries with civil law traditions stressed that the accused

should be able to make unsworn statements and not have to take an oath to

speak the truth as provided in (h).

41(2): Several delegations stressed that the provision dealing with

disclosure of evidence to the suspect would be better dealt with under

Article 44 on evidence.

Several delegations expressed concern to see the provision include the

possibility to protect sensitive information from disclosure to the

defense. One view was that state rights should be appropriately addressed

in Articles 27.5, 37.5 and 41.2. A comprehensive working paper was

submitted on these issues.

41(3) and (4) : Several delegations expressed that the right of all persons

to be secured in their homes, papers and effects [...] was a right granted

to any person and not only to the accused and that the text of para.3

should therefore stay in brackets or be deleted. The same concern was

expressed with regard to para (4). The right not to be deprived of life or

liberty, and to be imposed other criminal penalty without due process of

law were rights of a general nature that should perhaps be located in other

parts of the statute. Both paragraphs were kept in brackets. 4(b) was

deleted.

Article 43: Protection of the [accused], victims and witnesses [and their

participation in the proceedings

A delegation introduced a proposal for replacing Article 43. Several

delegations welcomed the new version which included: creation of a victims

and witnesses unit; allowance for victims' views and concerns to be

presented at appropriate stages of the proceedings; and specific references

made to victims of sexual and gender violence in the text (as subject to

measures ensuring safety, integrity and privacy). Several delegation

commented that the new proposal enriches rather than replaces Article 43.

The revised article also includes: (a bracketed) provision for limited

disclosure of evidence when required to protect victims and

witnesses'safety; protection of a state's civil servants and agents; and

protection of sensitive information.