International Criminal Courts

The procedure to be applied by the court draws upon both common and civil law models, but most aspects of the procedure are so modified that they should be seen as a new international criminal procedure. For example, although the procedure is largely adversarial, judges are expected to assert a greater control of litigation during all phases. Moreover, in carrying out investigations, the prosecutor has a duty to establish the truth, to investigate evidence that is favorable as well as unfavorable to the person under investigation, to respect the interests and circumstances of victims, and to fully respect the rights of persons (Article 54). The prosecutor will be largely dependent on state cooperation to conduct investigations. He or she may conduct investigations on the territory of a state, but apart from the limited exception of a major breakdown in the judicial system when authorized to do so by the Pre-Trial Chamber under Article 57, this may occur only with the consent of the state. In an important innovation, the Pre-Trial Chamber will be able to gather evidence pursuant to Article 56, which may not be available at trial, such as the testimony of a victim or witness.

One of the most important provisions in the Statute, which is likely to have an enormous impact over the long term on national criminal justice systems, is Article 55. It contains a minicharter guaranteeing the rights of persons during an investigation, and expressly guarantees that suspects questioned by the prosecutor or state authorities acting at the court's request have the right to silence, and the exercise of that right may not be considered in the determination of guilt or innocence. Suspects also have the right to the presence of a lawyer during any questioning. Evidence obtained in violation of these rights can be excluded pursuant to Article 69 (7).

Unless otherwise decided, trials will be at the seat of the court (Article 62). Article 65 requires the Trial Chamber, before accepting an admission of guilt, to determine if the accused understands the nature and consequences of this decision and has made it voluntarily after consulting counsel, and that it is supported by the facts. Discussions between the prosecutor and defense counsel concerning modification of the charges, the admission of guilt, or the penalty are not binding upon the court. The Trial Chamber under Article 64 must "ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses." A broad range of fair trial guarantees are set forth in the Statute, including the prohibitions of retrospective criminality (nulla crimen sine lege) (Articles 22 and 24) and punishment (nulla poena sine lege), the right to be present (except when disrupting the trial) (Article 63), the presumption of innocence (Article 66), and most of the other rights to fair trial recognized in international instruments, such as Article 14 of the International Covenant on Civil and Political Rights and the Yugoslavia and Rwanda Statutes and Rules of Procedure and Evidence (Article 67). However, proposals to permit the use of anonymous witnesses, as authorized by the Trial Chamber of the Yugoslavia Tribunal in the Tadić case, were rejected. Article 70 spells out offenses against the administration of justice, such as perjury and bribery, which can be punished by the court or states parties. Article 72 establishes a complex procedure for safeguarding information where states consider that disclosure would prejudice their national security, and for referral to the Assembly of States Parties when the court concludes that the refusal by a state party to provide such information is not in accordance with the Statute.

Article 77 authorizes the imposition of prison sentences up to life and, in addition to a prison sentence, the court may order a fine and forfeiture of proceeds, property, or assets derived directly or indirectly from a crime. Like the Yugoslavia and Rwanda Statutes, the Statute excludes the death penalty. The prosecutor, as well as the convicted person, may appeal a judgment on the grounds of procedural, factual, or legal error, and may also appeal the sentence; the convicted person may also appeal on other grounds (Article 81). After a final decision on appeal, Article 84 permits a request for revision of a conviction or sentence on the basis of newly discovered evidence that was not available at the time of trial, where this was not the fault of the accused and the evidence could have led to a different verdict. Article 85 permits compensation for un-lawful arrest and miscarriages of justice.