Rules Of Procedure And Evidence Research Articles

Easier Said than Done: Victim Participation at the ICC The Double Implementation Gap between the Substantive Right to Participate and its Procedural and Jurisprudential Limitations

The Rome Statute of the International Criminal Court (ICC) establishes for the first time in the history of international criminal law the participation of victims in criminal proceedings. Specifically, Article 68 (3) of the Rome Statute (RS) establishes the general terms of the victim participatory scheme at the ICC. From such a provision, it can be deduced that there are two modes of victim participation: direct and indirect participation. Nonetheless, following a teleological interpretation, vicarious participation through a legal representative seems to be an ad latere option to the main, individual, direct participation. Article 68 (3) of the Statute also establishes three principal limitations to the participation of victims in ICC proceedings: (1) first, the personal interests of the victims must be affected for them to be able to participate in the proceedings; (2) secondly, the participation of victims must be considered appropriate by the Court; (3) and, finally, victim participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. However, the Rules of Procedure and Evidence (RPE), in developing the procedural aspects of victims’ participation rights, focus solely on the rights of the legal representative for victims (LRV) and impose conditions that might be seen as limiting the scope of victim participation. Further, the application and varying interpretation of these rules by the different Chambers has resulted in a confusing participatory scheme which heavily relies in the discretionary criteria of the Judge or Chamber who is knowing of the case. The current piece will aim to identify whether there is in effect a gap between the substantive right of victims to participation at the ICC set in Article 68 (3) RS and its procedural development through the Rules of Procedure and Evidence. Furthermore, by examining the practice of the different Chambers, the present study also attempts to establish the existence of a jurisprudential implementation gap. And if such a gap does indeed exist, would not it be in contravention of Article 21 of the Rome Statute which enshrines the principle of legality, the principle of hierarchy of norms and the interpretation of the Statute in accordance with internationally recognised human rights? More importantly, does this double implementation gap –procedural and jurisprudential – curtail the right of those whom the Court pledged to protect – the victims of the most serious crimes of international concern - to the extent of making them more symbolic than real?

Plea Bargaining Before the International Criminal Court: Suggestions Taken from the Experience of the Ad Hoc Tribunals

The UN-established ad hoc Tribunals (ICTY and ICTR) have been the first international criminal courts to dispose of cases through plea agreements. The consensual disposal of grave international crimes such as genocide, war crimes and crimes against humanity has given rise to serious controversy and heated debates, especially in light of the broad and multifaceted goals that international criminal justice is meant to pursue. It is no coincidence, therefore, that plea bargaining provisions were not included in the Statutes nor in the Rules of Procedure and Evidence (RPE) of these courts and that the ICTY/ICTR judges initially rejected negotiated outcomes as incompatible with the broad and unique mandate of the Tribunals.

Amicus Curiae Brief on the Practice of Cumulative Charging Before International Criminal Bodies Submitted to the Appeals Chamber of the Special Tribunal for Lebanon Pursuant to Rule 131 of the Rules of Procedure and Evidence

On 7 February 2011, President of the Special Tribunal for Lebanon (STL), Antonio Cassese, issued a general invitation to, inter alia, nongovernmental organizations and academic institutions to submit briefs on specific issues related to the 15 preliminary questions addressed to the judges of the Appeals Chamber pursuant to Rule 68(G) of the Rules of Procedure and Evidence (RPE). On 11 February 2011, the War Crimes Research Office (WCRO) of the American University Washington College of Law submitted an amicus curiae brief under Rule 131 of the RPE addressing the specific question of whether cumulative charging is an accepted practice before international criminal bodies. Citing jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal

Internal rules of the extraordinary chambers in the courts of Cambodia (ECCC): Setting an example of the rule of law by breaking the law?

This paper encapsulates an in-depth examination of the legality of the authority invoked by the Extraordinary Chambers in the Courts of Cambodia (ECCC) to create a set of rules of procedure and evidence known as the Internal Rules (IRs). In the void of public information pertaining to the ECCC’s rationale for creating the IRs, this paper, in part, seeks to reconstruct the relevant judicial arguments and, to the greater extent, focuses on answering the question of which of the arguments put forward during the adoption process of the IRs should have been but were not entertained and accepted by the judicial panel to ensure the legality of the actions associated with the creation of the IRs. To this end, the paper extracts a statutory test which is used as the litmus test of the provisions of the IRs analyzed throughout the narrative. The application of this test, in the end, results in the separation of the provisions of the IRs ab initio identified as suspect into those for the adoption of which authority exists at the international level and those which the ECCC has invented ultra vires the law on the establishment of the ECCC and applicable international standards. Key words: Extraordinary chambers in the courts of Cambodia (ECCC), hybrid tribunals, ultra vires actions, internal rules (IRs), rules of procedure and evidence (RPE), international criminal law.

The Rights of Victims v. the Rights of the Accused

For too long victims have been neglected in international criminal law; with the adoption of the International Criminal Court (ICC) Statute they have, however, been granted a set of procedural rights that entitles them to some form of participation in international criminal proceedings. Arguably there is nothing prejudicial per se to the rights of the accused in allowing victims to participate in international criminal proceedings. Unfortunately, however, the ambiguities of the ICC Statute, the lack of clarity as to the procedural model, and the absence of clear cut provisions in the ICC Rules of Procedure and Evidence (RPE) have created a legal framework which is flawed with regard to the principle of legal certainty and, at least in this respect, clearly amounts to a violation of the rights of the accused. Against this background, the judges are solely responsible for finding the appropriate way to enable some measure of victim participation consistent with the rights of the accused. According to the Statute, any balancing between these two competing interests must be premised on the primacy of the rights of the accused. The practice of ICC Chambers, however, suggests that the judges are hesitant explicitly to recognize the primacy of such rights. This reluctance may lead in some instances (e.g. the broad definition of victims; permission for the presentation of evidence by victims; the acceptance of the double status as victim and as witness; and so on) to weaken the protection of the rights of the accused due to a mistaken interpretation of the right of victims to obtain justice.

I.Referring an indictment from the ICTY and ICTR to another court—Rule 11bisand the consequences for the law of extradition

In the wake of their so-called ‘completion strategies’,1both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), creations of the UN Security Council under Chapter VII of the UN Charter, have for some time grappled with the question of how to unclog their congested dockets and dispose of those accused which are generally viewed as ‘small fry’. The fact that many of the accused have had to spend very long, some say excessively long, times in the custody of the Tribunals prior to and during trials, led the Tribunals to devise a mechanism for the transfer of cases to national jurisdictions, preferably those of the national States of the defendants, which were mostly identical to the post-conflict countries. The mechanism was an amendment of Rule 11bisof their Rules of Procedure and Evidence (RPE) which allowed the Tribunals to refer cases to the national courts under certain circumstances. It is helpful to trace the history of the Rule. For the sake of simplicity, only the ICTY2will be looked at here, as there are no real differences in substance with regard to the ICTR as far as the latest version of the Rule3is concerned.

International criminal procedure: "adversarial", "inquisitorial" or mixed?

AbstractThe article analyses whether international criminal procedure is "adversarial", "inquisitorial" or mixed. It examines the law of the ICTY and the ICC, including the relevant case law. This law has developed from an adversarial to a truly mixed procedure by way of various amendments of the ICTY's Rules of Procedure and Evidence (RPE) and the drafting of the Rome Statute merging civil and common law elements in one international procedure. It is no longer important whether a rule is either "adversarial" or "inquisitorial" but whether it assists the Tribunals in accomplishing their tasks and whether it complies with fundamental fair trial standards. As to an efficient trial management an UN Expert Group called for a more active role of the judges, in particular with regard to the direction of the trial and the collection of evidence. In this context, it is submitted that a civil law like judge-led procedure may better avoid delays produced by the free interplay of the parties. Ultimately, however, the smooth functioning of a judicial system depends on its actors, procedural rules provide only a general framework in this regard. A truly mixed procedure requires Prosecutors, Defence Counsel and Judges who have knowledge of both common and civil law and are able to look beyond their own legal systems.

The First and Second Sessions of the Preparatory Commission for the International Criminal Court

The adoption of the Statute of the International Criminal Court in July 1998 in Rome was the culmination of years of effort by the international community. Under Article 126, the Statute will enter into force once it is ratified by 60 states. As many states will have to enact national legislation or even change their constitutions before ratification to comply with the obligations of the Statute, the required number of ratifications will probably not be reached in the short term.Besides, a number of tasks still remain to be undertaken by states, as indicated in the Statute itself, namely, drafting of a document called ‘Elements of Crimes’ (EOC), drafting of the Rules of Procedure and Evidence (RPE) and reaching agreement on the definition of the crime of aggression. Therefore, the UN General Assembly has mandated a Preparatory Commission (PrepCom) to prepare draft texts of the RPE and EOC and proposals for a provision on aggression, including its definition, elements and the conditions under which the International Criminal Court (ICC) shall exercise its jurisdiction with respect to this crime. The drafts of the EOC and RPE must be finalized by 30 June 2000, when they should be formally adopted. The definition of aggression does not have to be agreed on until the first review conference seven years after the entry into force of the Statute. In addition to these tasks, which this article will describe in greater detail, the PrepCom will work on a relationship agreement between the Court and the United Nations, basic principles governing a headquarters agreement and financial regulations and rules.