LIST OF QUESTIONS RELATING TO THE ITEMS TO BE DISCUSED IN AUGUST 1996

I. PROCEDURAL QUESTIONS, FAIR TRIAL AND RIGHTS OF THE ACCUSED

See Annexes I and II attached.

II. THE ESTABLISHMENT OF THE ICC

Articles 1 and 4 of the ILC Draft Statute serve as a basis for the discussion. The following questions need consideration:

(a) What kind of legal instrument is preferred to establish the ICC? During the discussion in the Ad Hoc Committee basically two alternatives were advocated;

- establishment by multilateral treaty;

- establishment by amending the UN Charter.

(b) In case the establishment by multilateral treaty is preferred, what should approximately be the desired number of ratifications in order to let the treaty enter into force?

(c) Should the Court be a permanent institution, acting only when require to consider a case or meeting also on a more permanent basis?

III. THE RELATIONSHIP BETWEEN THE ICC AND THE UN

With respect to the question of the relationship between the ICC and the UN, dealt with in article 2 of the ILC Draft Statute, the following questions merit discussion:

(a) What should be the content of the relationship between the ICC and the UN?

(b) What legal instrument is needed in which to lay down this content?

(b) (1) Should this instrument be a special agreement between the UN and the ICC or an annex to the Statute?

(b) (2) Should the instrument be concluded between the UN and the ICC or should it be developed by states?

(b) (3) Should the instrument be elaborated simultaneously with the Statute, or can it be left to a later stage?

IV. ORGANIZATIONAL QUESTIONS (COMPOSITION AND ADMINISTRATION OF THE COURT)

Part 2 of the ILC Draft Statute on the Composition and Administration of the Court (draft articles 5-19) may serve as a basis for the discussion. The following questions need further reflection:

(a) Article 6: What should be the qualifications and election procedure for the judges?

(a) (1) What kind of qualifications in the legal field should candidates possess?

(a) (2) What other kind f qualifications or criteria should be applied?

(a) (3) Should candidates come only from States Parties to the Stature r also from non-States Parties?

(a) (4) Should elections take place by the States Parties or by UN organs?

(a) (5) What should be the number of judges sitting in the Court and should a distinction be made on the basis of the qualifications or criteria?

(a) (6) What should be the term of office for judges?

(b) Article 8: Composition and tasks of the Presidency

(b) (1) How should the Presidency be composed and for what term?

(b) (2) What kind of tasks should be given to the Presidency? Should the task be limited to administrative issues or also extend t issues arising out of proceedings before the Court?

(c) Article 9: Chambers

(c) (1) What kind of Chambers should be set up?

(c) (2) How should these Chambers be composed?

(c) (3) What should be the term for these Chambers?

(d) Article 10: How to ensure the independence of the judges?

(e) Article 11: Excusing and disqualification

(e) (1) What should be the grounds for excuse or disqualification?

(e) (2) what should be the procedure for disqualification ?

(f) Article 12: The Procuracy

(f) (1) How to ensure the independent position of the Procuracy?

(f) (2) What should be the task of the Procuracy?

(f) (3) How should the Procuracy be organized?

(f) (4) What should be the qualifications for the Prosecutor?

(f) (5) What Should be the term of office for the Prosecutor?

(f) (6) What should be the grounds for excuse or disqualification?

(g) Article 13: The Registry

(g) (1) What should be the role of the Registrar?

(g) (2) How should the Registrar be elected?

(g) (3) What should be the term of office of the Registrar?

(h) Article 19: Rules of the Court

(h) (1) What kind of rules should be laid down in the Rules of the Court?

(h) (2) Who should be responsible for the elaboration of the Rules: the Judges or the States Parties? Which elements of the Rules should be elaborated by either entities?

(h) (3) When should these Rules be elaborated?

(h) (4) What kind of procedure can be envisaged for amending the (different kinds of) Rules?

Annex I

Discussion Paper - Draft 10 April 1996

PROCEDURAL QUESTIONS, FAIR TRIAL, RIGHTS OF THE ACCUSED

Questions Presented:

1. Should there be a series of articles on the rights and duties of the prosecution and of the defense excluding other questions? Articles 34 through 44 deal with rules of procure. These articles also include General Principles of Criminal Law, such as the principles of legality in Article 39, the presumption of innocence in Article 41 and Non Bis in Idem in Article 42. These provisions should be under General Principles of Criminal Law. Article 44 which deals with quorum and judgment should go under structure and organization of the Court. Articles 46 and 47 should be in a separate chapter dealing with penalties.

2. Should Part Six which deals with appeal and review contain rules of procedure and evidence in connection with their affect on the judicial proceeding?

3. Should the statute include a list of basic rights of the accused based on internationally recognized norms and standards leaving the details to the promulgation of rules or should the statute have a more exhaustive list of specific rules or should there be a combination of both?

4. Should the statute include general rules of evidence based on internationally recognized norms and standards or should the rules of evidence be drawn p with specificity?

5. Questions regarding Article 41 and Rights of the Accused

(i) notice of the charges and their timeliness, specific content of the information communicated to counsel at the time of the indictment, or prior thereto

(ii) availability of counsel of one's choice, court appointed counsel, resources, communication with counsel

(iii) availability of evidence to the defense provided by the prosecution (discovery), access to scientific evidence, access to field investigations

(iv) speedy conduct of the proceedings

(v) rights of the accused during juridical proceedings including availability of a list of witnesses pre-trial, right to cross-examination, right to compulsory service of process of defense witnesses, equal treatment of witnesses for prosecution and defense

(vi) right to have translated documents and interpretation of proceedings

(vii) freedom from compulsory testimony and self-incrimination

(viii) "equality of arms"

(ix) right of the accused to appear in person, right to oppose the request or contemplated action of the Tribunal, right to be heard before an ordinary tribunal, right to appeal before a reviewing court

6. Duties of the Prosecutor

(i) to uphold the integrity of the investigatory and prosecutorial processes

(ii) to ensure against abuse of processes and abuse of power

(iii) to promote fairness and "equality of arms"

7. Evidence

(i) proof beyond a reasonable doubt

(ii) rules concerning admissibility of written testimony, technical and scientific reports, appearances f witnesses and protection of witnesses

Annex II

PROCEDURAL QUESTIONS, FAIR TRIAL AND RIGHTS OF THE ACCUSED

INTRODUCTION

At the end of the Prepcom meeting in April, a document was distributed regarding questions which need to be answered during the plenary sessions of this Prepcom. The questions relating to the issue of procedural questions, fair trial and the rights of the accused are laid down in the discussion paper of 10 April 1996. As delegations may have noticed, this issue will be dealt with during this session of the Prepcom both in the plenary and in the working group. in order to make maximum use of the time available, an efficient division f labour between the plenary and the working group should be envisaged. It is in this light that the questions, laid down in the discussion paper, have to be further elaborated. In order to further structure the discussions in the plenary, a list of more detailed questions, based upon the discussion-paper and especially question 1 of that paper, are presented here below. These questions are based on discussions previously held in the Prepcom or in the Ad Hoc Committee. During thes

e discussions it became clear that the relevant articles of the ILC draft Statute served as useful point of departure for the further elaboration of these articles and for the further work on the rules of procedure and evidence. It was also generally recognized during these discussions that the relevant parts of the ILC Draft needed to reflect a proper balance between the need for an effective prosecution and the need to respect the rights of the suspect or the accused. In addition, a proper balance needs to be found between the common law-system and the civil law-system. The division of labour between plenary and working group envisaged here is the following: the plenary will discuss whether and if so, how, the Draft Statute of the ILC needs adaptation or further elaboration. It will subsequently be for the working group to go into the substance of proposals and amendments presented.

Questions

With respect to article 25, it may be questioned whether the ILC draft needs further elaboration as the preconditions of the content of complain are concerned (cf. article 25 (3)). However, it should be kept in mind, that it is not the place here to discuss the question of who may submit complaints, this being a question falling under the heading of the trigger mechanism, already discussed at the first Prepcom meeting.

With respect to Article 26 two separate questions may need further discussion, with a view to amending or further developing this article:

- what should be the powers of the Prosecutor at this stage of the proceedings to investigate a case;

- how much room should be given to the Prosecutor to determine whether there is sufficient basis for a prosecution and what should be the legal effects of any decision in this field; should there be a procedure to challenge such a decision.

Article 27 deals with the question of the commencement of prosecution. The question which aries here is, whether the procedure envisaged in this articles needs further elaboration, especially with a view to determine the division of the powers between on the one hand the Prosecutor and on the other hand the Presidency. In addition, the question aries whether the Presidency is the most appropriate organ to exercise the powers laid down in this article or that these powers should be conferred upon another organ, for example a chamber of the Court or a judge of instruction.

As regards the Article 28 to 30 inclusive, the major question arising here is, how to elaborate the respective responsibilities of the Court on the one hand and national judicial organs on the other hand with respect to arrest and detention of persons and the exercise of the rights of the suspect/accused at this stage of the proceedings.

The major question arising out of the articles 34 and 36 is, whether the draft of the ILC needs further improvement or elaboration with respect to the question of who may challenge the jurisdiction of the Court, at what point in time and according to what kind of procedure.

A very important issue is laid down in article 37 of the ILC Statute. The question which needs further reflection is, whether, and if so, under what circumstances, a trial may take place without the presence of the accused. It may be interesting to take Rule 61 of the Rules of Procedure and Evidence of the Yugoslavia Tribunal into account, when dealing with this question.

Article 38 of the ILC Statute deals with the functions and powers of the Trial Chamber. Does this provision need further elaboration or amendment, for example on the issue of the plea of guilty or not guilty and the issue of plea bargaining.

The major question under article 41 of the ILC Statute is, whether this provision on the rights of the accused needs further elaboration or amendment, and if so, in what way. Reference may be made here to the questions nr. 3 and 5, laid down in the discussionpaper of 10 April 1996.

Does article 43 of the ILC Statute require further elaboration, for example with respect to the protection of victims and witnesses.

Article 44 of the ILC Statute deals with the question of evidence. Here one may wonder, whether a further elaboration of this provision is needed, for example with respect to questions on admissibility of certain kinds of evidence or the need to make a limitative list of sorts of evidence admitted. Reference may also be made to questions nr. 4 and 7 of the discussionpaper of 10 April 1996.

Article 45 of the ILC Statute deals inter alia with the judgement of the Trial Chamber. One may wonder whether additional requirements with respect to the content of a judgement may be needed.

Part 6 of the ILC Statute deals with appeal and review. Here again, the question arises whether the ILC draft is acceptable or whether a further elaboration or amendment may be required. See here also question 2 of the discussionpaper of 10 April 1996. In addition, one may wonder what exactly should be the scope of the appeal.

Finally, a question of a more general nature may require additional reflection. This question deals with the relationship between the Statute and the Rules of Procedure. What is the difference between placing an issue in the Statute itself, and placing an issue in the Rules of Procedure, if one assumes, that the latter will have to be elaborated and adopted by the states simultaneously to the Statute itself. This question can be subdivided in the following aspects:

- Do the Rules of Procedure of the ILC have to be elaborated simultaneously with the Statute and be adopted by States?

- What is the difference in legal status between the Statute and the Rules; for example does one envisage that the Rules may be more easily amended than the Statute itself. If no differences are envisaged, what then is the use of making a difference between the Statute and the Rules?

- Do delegations envisage the possibility of additional rules to be elaborated by the judge of the Court, and if so, what kind of issues should be dealt with in these additional rules?