Summary of Prep. Comm.

Monday-Meeting August 19, 1996

A.M. Session

ARTICLE 43 PROTECTION OF THE ACCUSED, VICTIMS AND WITNESSES

The following main questions arose with regards to this article:

1. DOES THIS ARTICLE REQUIRE FURTHER ELABORATION?

Most countries agreed that this article needed to be further elaborated. Finland, Denmark, Portugal and Russian Federation made specific reference to this need. Slovenia added that article 43 failed to adequately protect the vulnerable and suggested that it be amended to contain a provision to protect juveniles and the mentally impaired.

2. SHOULD A VICTIMS AND WITNESSES UNIT BE ESTABLISHED?

The countries that spoke in favor of creating such a unit were: Australia (suggested Rule 40 of the Australian/Dutch proposal which provides for the establishment of such a unit). Egypt and Samoa suggested the provision in the Siracusa draft establishing such a unit, the US and Finland.

3. SHOULD THE PROVISIONS OF THIS ARTICLE BE RETAINED IN THE STATUTE OR SHOULD CONTAINED IN THE RULES OF PROCEDURE?

Samoa spoke in favor of retaining Art. 43 in the Statute.

4. SHOULD A COMPENSATION FUND BE ESTABLISHED?

Most countries including Egypt, US, Denmark, Japan favored the idea of establishing such a fund.

If yes, what should be the mechanism of restitution to VICTIMS?

Egypt suggested the ICC determine the scope of the compensation but preferred that the national authorities be responsible for enforcing the victims' rights to compensation. Argentina made two suggestions: 1) the ICC should determine the appropriateness and even amount of the compensation 2) one should allow the victims to actually partake in the proceedings by enabling the VICTIMS to demonstrate that their claim for restitution is appropriate in such a case and the accused should be allow to speak out against such claims.

5. DOES THE ARTICLE STRIKE AN APPROPRIATE BALANCE BETWEEN THE PROTECTION OF THE RIGHTS OF THE ACCUSED AND THE PROTECTION OF THE VICTIMS AND WITNESSES?

The US, Japan, the Russian Federation, Canada, Libya, France (suggested article 102 of its draft presented a more effective balance) felt the statute failed to strike an adequate balance.

6. SHOULD THE STATUTE ALLOW FOR THE "ANONYMOUS WITNESS"?

Australia was not in favor of the "anonymous witness" and suggested other mechanisms be devised to protect the witness adequately.

7. SHOULD VICTIMS BE ENABLED TO TRIGGER THE JURISDICTION OF THE COURT?

Finland favored allowing VICTIMS to trigger the jurisdiction of the Court.

8. SHOULD THE PROTECTION OF VICTIMS AND WITNESSES BE PROVIDED FOR IN A SEPARATE ARTICLE TO THE PROTECTION OF THE ACCUSED?

Portugal, Germany answered this question in the affirmative.

ARTICLE 44 EVIDENCE

1. SHOULD THE RULES OF EVIDENCE BE PROVIDED FOR IN THE STATUTE OR SHOULD THEY BE LAID OUT IN THE RULES?

Most countries including Singapore, Egypt, Canada, the US agreed that the

extensive codes of evidence used in common law jury trials were not needed in the Statue. Reference was often made to the Australian/Dutch paper as a useful indication of which general principles needed to be articulated in the Statute.

Canada was of opinion that certain of the provisions in this article needed to be further elaborated ("rules of international law" and "serious violations of provisions in this Statue").

2. SHOULD THE ICC OR THE NATIONAL AUTHORITIES BE RESPONSIBLE FOR SANCTIONING PERJURY?

France and Mexico were in favor of the national authorities being responsible for sanctioning perjury. Finland, Australia, Canada, Ireland, the US stressed that it was essential that the ICC have, at its disposal, tools for controlling its own proceedings and that it therefore be responsible for sanctioning perjury and contempt of Court.

3. HOW IS EVIDENCE OBTAINED BY THE NATIONAL AUTHORITIES TO BE TREATED?

The Dutch proposed the introduction of a rebuttable presumption that national authorities had acted in accordance with their own laws. It should not be up to the ICC to determine whether the national authorities acted in accordance with national provisions. Canada stressed that it felt violations of national law in obtaining evidence should be irrelevant to the functioning of the ICC.

4. RELEVANCE STANDARD

Australia proposed Rule 112 of the Australian/Dutch proposal as an adequate relevance standard.

Summary of Monday, August 19, 1996

ICC Prep Comm Notes

P.M. Session

ARTICLE 45: QUORUM AND JUDGMENT

A majority of delegations seemed to support having an odd number of judges, allowing the publication of dissenting opinions and acquitting defendants when decision were split. However, there wasn't necessarily unanimity on these or any of the other fallowing issues:

1. HOW MANY JUDGES MUST BE PRESENT DURING THE TRIAL? Austria, Mexico, Italy, Israel, Ireland, Singapore, Germany stated that all of the judges must be present all of the time. Argentina, France stated that all of the judges should be present during the entire trial and alternate judges should be available to fill-in. Singapore had reservations about, and Ireland was opposed to, alternate judges. Sweden said it must be the same four judges who must be present.

2. WHAT ARE THE POSSIBLE JUDGMENTS? Sweden said the trial must always result in a conviction or acquittal. Sweden, Korea, Thailand, Israel, Italy, Austria, France, Switzerland stated that if the judges are split the accused must be acquitted and there should be no new trial because of the split.

3. HOW MANY JUDGES SHOULD CONSTITUTE A TRIAL CHAMBER? Argentina, China, Mexico, Ireland said the number should always be odd to avoid split decisions. France, Austria and Israel support five judges.

4. PUBLISH MINORITY JUDGES' OPINIONS? Chile, China, Canada, Ireland, Thailand, Israel, Russia, Singapore, Malaysia, Australia, Mexico support doing so, especially because this will be helpful to an appeals chamber. France, Austria, Switzerland opposed doing so, in part because this will weaken the court's credibility and unity.

5. SEPARATE SENTENCING HEARING? France, Austria, Mexico supported sentencing during the same hearing that renders a verdict.

6. MAJORITY VOTE SUFFICIENT TO CONVICT AND/OR SENTENCE? France, Singapore support sentencing by a majority vote. Singapore supports requiring a unanimous vote for convictions. Ireland, Thailand, Switzerland, Canada support only a majority vote for convictions.

PART VI: APPEAL AND REVIEW

The Chairman stated, at the end of this discussion, that the rules for appeal and review should be elaborated further given that discussion. He iterated the importance of answering the question of whether there should be a SEPARATE document of supplemental rules.

1. WHEN CAN THE DEFENDANT APPEAL AND ON WHAT GROUNDS? Australia, Russia support allowing the defendant to appeal based on error of fact or law. France stated that appeal should be an unconditional right of a defendant. France also said that judgments should be suspended during appeals, although detention may be maintained. US was concerned about unfettered reviews of entire trials and would limit appeals. Argentina stated that when a defendant appeals they can not be given a harsher judgment on appeal. Egypt said it is problematic, and will lead to every defendant automatically appealing, if they can do so based on disparity between their crime and the sentence.

2. WHAT ARE REASONS TO REVISE SENTENCES/CONVICTIONS ON APPEAL? Argentina would add as reasons, beyond just the discovery of new evidence, proof that key evidence was false, judges violated duties or there was a retroactive application of the law. US would only allow revisions if new evidence is discovered.

3. WHEN CAN THE PROSECUTOR APPEAL AND ON WHAT GROUNDS? Australia supports allowing the prosecutor to appeal based on an error of law. Russia said the prosecutor should not be allowed to appeal based on error or fact and Australia, US were just concerned about this. Israel would allow appeals if sentences are inappropriate (e.g. fines but no prison). Italy, Austria agree that the prosecutor should have the same rights to appeal as the defendant.

4. TIME LIMIT ON APPEALS? Argentina says no. Singapore, Austria, Russia say yes.

5. SUPPLEMENTAL RULES? Australia supported doing in a third-tier document, maybe done by the judges. Japan concurred that detailed rules may not necessarily need to be in the statute.

6. COMPENSATION FOR FALSE CONVICTION? France supports.

7. JUDGES AND VOTES IN APPEALS CHAMBER? France says seven judges and decisions by majority vote. Israel says seven judges.