Investigation - Coercive - Measures Arrest Criminal Law PDF

3 Investigation, Coercive Measures, Arrest, and
Surrender
Karel de Meester, Kelly Pitcher, Rod Rastan, Göran Sluiter
From: International Criminal Procedure: Principles and Rules

Edited By: Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev,
Salvatore Zappalà
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 21 March 2013
ISBN: 9780199658022
(p. 170) (p. 171) 3 Investigation, Coercive Measures,

Arrest, and Surrender
1. INTRODUCTORY REMARKS 171
2. INVESTIGATION PHASE: DELINEATION AND SCOPE 172
3. COLLECTION OF EVIDENCE 212
3.1 Non-Coercive Investigative Acts 212
3.1.1 Interrogation of Suspects and Accused Persons 214

3.1.2 Questioning of Witnesses 255
3.2 Non-Custodial Coercive Investigative Acts 282
4. RESTRICTION AND DEPRIVATION OF LIBERTY 312
4.1 Arrest 313

4.2 Detention on Remand and Provisional Release 321
5. REMEDIES 351
5.1 General Framework 352

5.2 Specific Remedies in the context of Unlawful Arrest, Surrender, and
Detention 355
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: International Criminal Court (ICC); date: 06 February 2019
1. Introductory Remarks
The present chapter deals with the investigation phase in international criminal
proceedings. It concentrates on two of the most important aspects in criminal procedure
preceding the actual trial, namely the collection of evidence and the arrest and detention of
suspects. The chapter commences with a preliminary section on the delineation and scope
of the investigation phase (section 2). This is followed by separate sections on the collection
of evidence, by means of both non-coercive (section 3.1) and non-custodial coercive
measures (section 3.2), and on restriction and deprivation of liberty (section 4). Remedies in
case of violations are also addressed (section 5). Sections 3.1, 4, and 5 are further divided
into substantive subsections.
These are extensive issues, and this impacts on the structure of this chapter. Each
substantive section and subsection of the Chapter is structured in a Part A (law and practice
of international criminal tribunals), Part B (evaluation), Part C (general principles and
rules), and Part D (recommendations). Hence, each section is the equivalent of most of the
other chapters of this book, but in order to present a coherent review and assessment of the
investigation phase the issues are addressed in one chapter.
For the use of investigatory powers as well as for the benefit of legal protection it is
important to explore when and under what conditions the investigative phase starts in
international criminal proceedings, which is done in section 2. This brings us immediately
to the issue of potential overlap with other chapters. Chapter 2 focuses on the selection of
(p. 172) cases and the initiation of investigations. The present chapter concentrates on the
actual start of the investigation phase and the use of investigative powers.
Other chapters also address adjacent issues. The collection of evidence may continue
beyond the pre-trial phase. Even on appeals it is possible—under strict conditions—to
submit new evidence. While it would thus be possible to deal also with the issue of
collection of evidence in other phases of the proceedings, notably the confirmation of
charges phase (addressed in Chapter 4), the trial phase (Chapter 5), and even the appeals
phase (Chapter 6), it is clear that the vital stage for collection of evidence precedes
confirmation and trial stages. Hence, the collection of evidence is comprehensively dealt
with here. Similar reasoning applies to the coercive measures of arrest and detention. With
the exception of the IMT, IMTFE, and STL, the (initial) presence of the accused is an
absolute condition for conducting trials, which thus makes arrests exclusively part of the
pre-trial/investigation phase. However, detention following the arrest is likely to continue
throughout the subsequent trial stage and possibly also at the appeals stage. While
detention is also an issue in those stages—in fact motions for provisional release are
frequently submitted after the commencement of the trial—there is good reason to examine
the arrest and the ensuing detention jointly. Hence, this chapter addresses issues of arrest
and detention irrespective of the phase in the proceedings during which the individual is
detained.
This book also includes a number of thematic chapters which deal with issues which
permeate the various stages of international criminal proceedings and which because of
their particular importance had to be singled out and addressed comprehensively. The law
on evidence (Chapter 7) is one of them, which for obvious reasons is closely related to the
collection of evidence discussed in the present chapter. While the treatment of the results of
the collection of evidence is discussed in this chapter, admissibility of evidence is discussed
in Chapter 7.
The said division explains the scope and content of section 4 on remedies. It was felt that
the question of an appropriate response to irregularities occurring in the collection of
evidence and the arrest of suspects should be included in the present chapter, even if
procedural irregularities can—and in fact often are—raised in later stages of the
proceedings. However, exclusion of evidence, which may serve as a remedy but is also an
important dimension of the law of evidence, is not discussed in here but in section 2 of
Chapter 7. Hence, section 4 of the present chapter concentrates on the question of
remedies in respect of irregularities in the arrest and following detention of suspects.
A few words should be said on the importance of state cooperation. Especially in the area of
collection of evidence and arrest and detention, the cooperation of states—and other
relevant actors—is vital for the effective and fair administration of international criminal
justice. State cooperation is addressed in Chapter 1 in order to provide a better
understanding of the functioning and dynamics of international criminal proceedings.
Hence, this issue is dealt with in the present chapter only when relevant and necessary in
the sections on collection of evidence, arrest and detention, and remedies.
2. Investigation Phase: Delineation and Scope

A. Law and Practice of International Criminal Tribunals
i. IMT and IMTFE
At the IMT and the IMTFE, the ‘Chief Prosecutors’ and the ‘Chief of counsel’ were
respectively responsible for both the investigation and the prosecution of cases.1 More
precisely, (p. 173) the four chief prosecutors of the IMT were responsible for the conduct of
the investigation, the collection of evidence and the production of the necessary evidence at
trial as well as for the ‘preliminary examination of all necessary witnesses and of the
Defendants’.2 In turn, the IMTFE Chief of Counsel was responsible for ‘the investigation
and prosecution of charges against war criminals within the jurisdiction of this Tribunal’.3
Contrary to the more recent international criminal tribunals, the signatory states of the IMT
had full control over the territory of Germany. Hence, the cooperation of the defendants’
states or of other states, in the investigation and collection of evidence, was not required.4
At the IMT, seemingly, ‘each country applied mainly its own procedural standards to the
investigative phase’.5 Evidence was mostly collected by national military personnel of each
of the signatory states.6 Defence investigations were not expressly envisaged by the IMT
and the IMTFE Charter and adequate resources were lacking.7 No duties for the
prosecutors (independence, objectivity, due diligence, etc.) were explicitly provided for. In
fact, the chief prosecutors represented their own states.8 Lacking to the same extent were
safeguards for persons during the investigation, save for some protection of defendants in
the course of these preliminary examinations.9
ii. ICTY, ICTR, and SCSL
a. Definition
According to the Rules of Procedure and Evidence (RPE) of the ad hoc Tribunals and the
SCSL, the ‘investigation’ encompasses ‘all activities undertaken by the Prosecutor under
the Statute and the Rules for the collection of information and evidence, whether before or
after an indictment is confirmed’.10 This definition confirms that no temporal limitation of
the investigation follows from the confirmation of the indictment. Secondly, it explicitly
limits the investigation to prosecutorial investigative acts, thereby excluding defence
investigations from its scope. However, considering the more adversarial style of
proceedings, the defence is expected to undertake its own investigations. This omission is
symptomatic of the overall procedural frameworks of the ad hoc Tribunals and the SCSL;
neither regulate the conduct of defence investigations save for some general references to
it, including to the general power of the Trial Chamber in assisting the defence in the
conduct of its (p. 174) investigation.11 Further, as will be explained later, the definition is
construed too narrowly, where it limits the objective of the investigation to the collection of
evidence and information. While most investigative acts will serve the purpose of gathering
evidence, some prosecutorial investigative acts serve other goals, including the goal of
ensuring the future execution of sentences.12
b. Delineation of the investigation phase
Pursuant to Article 16(1) of the ICTY Statute and Article 15(1) of the ICTR and SCSL
Statutes, the powers to investigate and to prosecute are vested with the prosecutor. The
statutory framework provides the prosecutor with an independent authority to investigate
and prosecute statutory crimes.13 Consequently, it is the prosecutor who initiates the
investigation. A threshold for the commencement of the investigation is prescribed where
the prosecutor is required to assess the information received or obtained and to decide
whether there is ‘sufficient basis to proceed’ before opening an investigation. No
preference is included regarding the notitia criminis.14 The prosecutor can initiate
investigations ex officio or on the basis of information from ‘any source’.15
From a formalistic point of view, it may be argued that the investigation stops and the pre-
trial stage commences with the confirmation of the indictment pursuant to Rule 47 of the
ICTY, ICTR, and SCSL RPEs.16 However, in line with the definition discussed earlier, the
jurisprudence confirms that the prosecutor may continue the investigation after the
confirmation of the indictment and the start of the pre-trial phase proper.17 In the Boškoski
and Tarčulovski case, the Trial Chamber held that:
It is the practice of most jurisdictions and the practice of this Tribunal that
investigations should be conducted primarily before an indictment is issued or
submitted for confirmation … . The Rules and the Statute of the Tribunal … do not
explicitly restrict investigations to the time of confirmation of an indictment. The
nature and scope of the indictments tried in this Tribunal would make such a
restriction unreasonable. In fact the Rules implicitly allow for the possibility that
investigation[s] may be conducted after the confirmation of the indictment.18
Indeed, various provisions hint that the evidence gathering process may continue after the
confirmation of indictment, during the trial phase, and, exceptionally, into the appeals
phase. Pursuant to Rule 50 of the ICTY, ICTR, and SCSL RPEs, the prosecutor may, under
certain conditions, seek leave to amend the charges after their confirmation.19 Besides,
Rule (p. 175) 73bis(F) ICTY RPE allows the prosecutor to seek leave, after the
commencement of the trial, to change the number of crime sites or incidents in relation to
which evidence will be presented. Such need to vary the number of incidents or crime sites
‘often may stem from investigation[s] conducted at a later stage’.20 Similarly, the possibility
for the prosecutor to seek leave to change the (Rule 65ter) exhibit and witness lists after
the commencement of trial, where the ‘interests of justice’ so allow, may be relevant in the
light of newly discovered evidence during continued investigations.21 Indeed, the fact that
investigations are ongoing has been accepted as a relevant factor in the assessment of
whether the ‘interests of justice’ necessitate the amendment of the list.22 Also the
possibility for a party to reopen its case in exceptional circumstances and to present
evidence it previously did not have access to may be relevant in the light of continuing
investigations.23 On appeal, the exceptional possibility to present additional evidence on a
fact or issue litigated at trial may be further proof that the RPE implicitly allow for
continued investigations.24 However, at the same time, jurisprudence has emphasized that
this latter mechanism is not meant to be an opportunity for the parties to remedy ‘failures
or oversights’ made during the pre-trial and trial phase25 and that ‘investigations should be
carried out at the pre-trial stages’.26 The previous unavailability of the evidence must not
result from a lack of due diligence.27 Besides, only in exceptional circumstances will the
Registrar fund investigations at the appeal stage.28
A rigid and formalistic approach would not sit easily with the prosecutorial duty ‘to
prosecute an accused to the full extent of the law and to present all relevant evidence
before the Trial Chamber’.29 Where the Trial Chamber in Boškoski and Tarčulovski also
referred to the ‘nature and scope’ of the investigations to justify continued investigations,
such reference may require further explanation. The Chamber does not further explain why
the ‘complex nature’ or the ‘large scale’ of the case necessitates the conduct of continued
investigations after the confirmation of the indictment.30 It has been suggested that the (p.
176) ‘unique character’ of the investigations should not be relied upon too easily.31
Certainly, relevant arguments may be put forward, including difficulties in obtaining the
cooperation of the relevant states. Dissenting in Milutinović et al., Judge Hunt argued that
where the prosecutorial investigation continues throughout the trial phase, it is the result of
the imperfect system and the necessary reliance on states to assist in the conduct of the
investigation.32 The practice of continued investigations during the trial phase involves
certain risks. Where the continued gathering of evidence results in the amendment of the
indictment or the presentation of additional evidence at trial, care must be taken that the
defence is informed of the nature and cause of the charges against him or her and has an
adequate opportunity to prepare an effective defence. As underlined by ICTY Trial Chamber
II, ‘[t]he touchstone is fairness’.33
c. Collection of evidence
Only a handful of provisions concern the investigation phase.34 As far as the prosecution is
concerned, the principal powers are succinctly described in the respective statutory
frameworks of the ad hoc Tribunals and the SCSL as including: (1) the power to summon
and question suspects, to interview victims and witnesses, and record their statements; (2)
to collect evidence; (3) to conduct on-site investigations; (4) to take all measures for the
purpose of the investigation (and to support the trial phase);35 (5) to seek assistance of the
state authorities (or of a ‘relevant international body’ concerned) or of the Sierra Leonean
authorities respectively; and (6) to request the necessary orders from the trial chamber or
judge.36 From Rule 41 of the ICTY, ICTR, and SCSL RPEs follows the prosecutorial
obligation to retain, store, and secure information and physical evidence that was obtained
in the course of the investigation. It was noted that the absence of any reference to defence
investigations in the definition of ‘investigations’ provided for under the RPE is
symptomatic of the larger procedural framework of both the ad hoc Tribunals and the
Special Court. Notwithstanding the ‘primarily adversarial’ nature of proceedings before
these tribunals, no provision is made for defence investigations, save for references to the
assistance by the trial chamber. Where the procedure is primarily adversarial in nature, the
defence is required to put forward its own case. Hence, the defence needs to undertake its
own investigation. In this regard, the Appeals Chamber in Tadić underlined the important
role to be played by the trial chamber where the parties have to rely on state cooperation to
obtain evidence which will often be in the custody of a state and where states ‘can impede
efforts by counsel to find that evidence’.37 Consequently, the principle of equality of arms
should be given a more liberal interpretation in international criminal procedural law than
in proceedings before domestic courts.38 The parties should be equal before the trial (p.
177) chamber and be provided with ‘every practicable facility [the Trial Chamber] is
capable of granting under the Rules and Statute when faced with a request by a party for
assistance in presenting its case’.39 The chamber should assist the parties by using its
powers, pursuant to Rule 54 of the ICTY, ICTR, and SCSL RPEs, ‘to issue such orders,
summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes
of an investigation or for the preparation or conduct of the trial’.40
The investigative measures undertaken in the course of the investigation are usually aimed
at gathering evidence. Nonetheless, it will be illustrated in section 2 that investigative
actions may also serve distinct goals. For example, some investigative acts serve the
administration of justice by ensuring the presence of the accused at trial or the execution of
future sentences.41 Moreover, investigations may be undertaken in anticipation of the
court’s consideration of mitigating and aggravating circumstances and, as such, anticipate
the imposition of future sentences.42 Lastly, investigations may be undertaken with a view
to preparing and submitting an indictment for contempt.43
d. Objectivity
Nowhere do the Statutes of the ad hoc Tribunals state that the prosecutor should
investigate incriminating and exonerating evidence equally.44 Nevertheless, the ICTY
emphasized in Kupreškić et al. that the role of the prosecutor is not only that of a party to
adversarial proceedings but is also that of an ‘organ of international criminal justice, whose
object is not simply to secure a conviction but to present the case for the prosecution, which
includes not only inculpatory, but also exculpatory evidence in order to assist the Chamber
to discover the truth in a judicial setting’.45 In the absence of any express obligation on the
prosecutor to present ‘not only inculpatory, but also exculpatory evidence’, it is not clear
what the exact value of such a pronouncement is.46 The only obligation to assist the defence
provided for under the RPE, concerns the disclosure of exculpatory materials in the
possession of the prosecution. The prosecutor should disclose to the defence ‘material (p.
178) which in the actual knowledge of the Prosecutor may suggest the innocence or
mitigate the guilt of the accused or affect the credibility of Prosecution evidence’.47 Such a
duty falls short of any positive obligation on the prosecutor to actively search for
exculpatory evidence.48 It is exactly this feature of the procedural framework to which
Judge Shahabuddeen was referring in his dissent in the Barayagwiza case, where he
underscored that while the prosecutor is a party to the proceedings and should not be
neutral, he is not a partisan actor and that prosecutors should consider themselves
‘ministers of justice assisting in the administration of justice’.49 They represent the public
interest of the international community and should act with the objectivity and fairness
appropriate to that circumstance.50 It may be argued that the position of the prosecutor as
a minister of justice, going beyond his or her role as a partisan actor, finds some support in
the ‘Standards of Professional Conduct for Prosecution Counsel’ (Regulation No. 2) that
apply to the staff of the ICTY and ICTR OTP.51 Among others, the Standards refer to the
status of counsel as ‘officers of the court’, implying that their duties and responsibilities are
broader than those of the defence. This includes the obligation to ‘serve and protect the
public interest, including the interests of the international community, victims and
witnesses, and to respect the fundamental rights of suspects and accused’ and to ‘be, and to
appear to be, consistent, objective and independent in the conduct of investigations’.52 Of
equal importance is the prosecutor’s obligation to assist the Tribunal to arrive at the truth
and to do justice for the international community, victims, and the accused.53
However, the reference to the prosecutor and to members of the prosecution staff as
‘ministers of justice’ should be understood in conformity with the prosecutor’s procedural
role at the ad hoc Tribunals, in particular his or her disclosure obligations.54 Indeed, on a
more general level, the RPEs of the ad hoc Tribunals conceive the criminal procedure as a
competition between two parties.55
Similar to the procedural set-up of the investigative role of the prosecutor at the ad hoc
Tribunals, the procedural framework of the Special Court does not provide for an obligation
incumbent on the prosecution to search actively for exculpatory evidence. The prosecution’s
responsibilities are limited to the disclosure of (possibly) exculpatory (p. 179) evidence in
its possession.56 The Special Court’s jurisprudence equally confirms the role of the
prosecutor as a ‘minister of justice’.57 It has been argued that a broader role for the
prosecutor, encompassing an obligation to actively ‘investigate on the alternative forensic
scenarios than those which led to the indictment and tend to suggest the accused’s guilt’
follows from the ‘Code of Professional Conduct for Counsel with the Right to Audience
before the Special Court of Sierra Leone’.58 According to Article 24(B) of the Code:
Prosecution Counsel shall assess the materiality of facts and the probative value of
evidence according to all relevant circumstances and irrespective of whether they
are to the advantage or disadvantage of the suspect or accused.
Indeed, not only does this provision require the prosecutor to assess the probative value of
the evidence (which may be interpreted as being in line with the responsibility of the
prosecutor of the ad hoc Tribunals to assess the evidence gathered and disclose
exonerating evidence) but it also requires the prosecution to assess ‘the materiality of the
facts’ ‘according to all relevant circumstances’.59 This latter obligation may be interpreted
as requiring the prosecutor to assess all circumstances (incriminating and exonerating)
relevant to the case. However, it cannot be denied that such a rule of professional ethics
falls short of a clear-cut procedural obligation on the prosecutor ‘to investigate
incriminating and exonerating evidence equally’.60 Besides, it is debatable whether such an
obligation requires the prosecutor to go out and actively search for exonerating items of
evidence.
e. Other duties relevant to the conduct of the investigation
A prosecutorial duty of due diligence in the conduct of investigations was referred to by the
ICTR Appeals Chamber in Barayagwiza and Kajelijeli. According to the Chamber, this duty
requires the prosecution to ensure, once it initiates a case, that ‘the case proceeds to trial
in a way that respects the rights of the accused’.61 This obligation derives from the
authority the prosecutor possesses to set the whole legal process in motion by starting an
investigation and by submitting an indictment for confirmation.62 Both the Kajelijeli and the
Barayagwiza cases concerned the responsibilities of the prosecutor regarding the detention
of a suspect in the custodial state, prior to their transfer to the Tribunal. The notion of due
diligence connotes ‘appropriate, sufficient, or proper care and attention’.63(p. 180)
Additionally, the notion, in the way it was relied upon by the Appeals Chamber, also denotes
an element of ‘diligence’ in the sense of expeditiousness.64 Also on other occasions, the
prosecution was reminded of its task to proceed diligently or expeditiously. Whereas the
Trial Chamber in Furundžija noted ‘the constraints under which both parties operate’, it
reminded the Prosecution that it should be ‘particularly diligent, for example, in searching
its evidence, records and databases for information relevant to the case in hand and
locating witnesses as a matter of urgency’.65 The Trial Chamber ‘cannot condone inaction,
inefficiency, shoddiness and incompetence of any sort’.66 Especially in case a suspect or
accused is deprived of his or her liberty at the behest of the tribunal, ‘it is reasonable for a
Trial Chamber to expect a higher level of urgency and expediency in the handling of
cases’.67
It has been noted that such due diligence standards are reflected in prosecutorial, ethical
‘good conduct’ standards.68 According to the ICTY and ICTR Standards of Professional
Conduct [for] Prosecution Counsel (Regulation No. 2), counsel should always adopt the
‘highest standards of professional conduct’ in the course of investigations and ‘exercise the
highest standards of integrity and care, including the obligation always to act expeditiously
when required and in good faith’.69
A duty of due diligence, requiring the parties to conduct their respective investigations with
proper care, also derives from other provisions. It was previously illustrated how a due
diligence standard is relevant for the late introduction of evidence. For example, where
parties seek to present additional evidence before the Appeals Chamber or where one of the
parties seeks a review of the proceedings on the basis of new facts (not known to the
moving party at the time of proceedings), it should be shown that the new evidence or the
new facts could not have been discovered through the exercise of due diligence during
trial.70 Indeed, the Appeals Chamber normally refuses to admit evidence that was available
at an earlier stage but was not presented, due to a lack of due diligence of the party
concerned.71
Further, a duty of due diligence in the conduct of the investigations can be derived from the
previously-mentioned jurisprudence on the reopening of a party’s case in exceptional
circumstances.72 The primary consideration where a party seeks to introduce ‘fresh
evidence’ is whether ‘with reasonable diligence, the evidence could have been identified
and presented in the case in chief of the party making the applications’.73 The Trial
Chamber in S. Milošević noted that whereas ‘the Chamber is cognisant of the difficulties
that parties before the Tribunal face in investigating and preparing cases of such scope and
complexity, (p. 181) it considers that a party seeking evidence intended for use in its case in
chief should not wait until several months after the commencement of its case to begin the
process of obtaining it’.74 Except where the prosecutor is ignorant of the existence of an
item of evidence, the reasonable diligence standard is not satisfied where no attempt to
locate or obtain the evidence in question was made until after the close of the party’s case
and no explanation for such delay is provided. In this sense, the duty of reasonable
diligence requires the prosecutor to secure evidence before the closure of its case.75
Occasionally, the ad hoc Tribunals have emphasized the responsibility incumbent on the
prosecutor to represent the interests of the international community, including victims and
witnesses.76 Most clearly, the Appeals Chamber has confirmed that one of the purposes of
the prosecution’s investigative function is ‘to assist the Tribunal to arrive at the truth and to
do justice for the international community, victims, and the accused’.77 This responsibility
follows from the ICTY and ICTR Standards of Professional Conduct [for] Prosecution
Counsel (Regulation No. 2).78
iii. ICC
Under the Rome Statute, the investigative process has several unique features not present
at other international courts and tribunals. These include the determination of the theatre
of investigations (situations), including their temporal and territorial scope, as well as
personal and material parameters; the duty on the prosecution to investigate incriminating
and exonerating circumstances equally; the role of other actors, including the judges and
the legal representatives of victims; the scope for certain supervisory functions by the Pre-
Trial Chamber; as well as the gathering of evidence to enable the Court to make forfeiture
and reparations orders.
a. Preliminary examination
As a permanent body with potentially universal scope, the ICC prosecutor is responsible, in
the first instance, for determining which situations should be investigated ‘for the purpose
of determining whether one or more specific persons should be charged’ with the
commission of crimes within the jurisdiction of the Court.79 Because not all possible
allegations of crimes can be acted upon, the prosecutor must conduct a ‘preliminary
examination’ prior to launching an investigation to determine whether the Court has
jurisdiction, and whether it is appropriate in the circumstances to proceed with
international investigations.80 These functions are analogous in some respects to the
functions carried out by UN mandated international commissions of inquiry, established
prior to the constitution of certain other international tribunals.81
(p. 182) The preliminary examination of a situation may be initiated on the basis of: (a) any
information on crimes, including information sent by individuals or groups, states,
intergovernmental or non-governmental organizations; (b) a referral from a state party or
the Security Council; or (c) a declaration pursuant to Article 12(3) by a state which is not a
party to the Statute.82 Irrespective of how a situation is brought to the attention of the
Office of the Prosecutor, it retains discretion in determining whether to open an
investigation. The only discernable difference is the procedural presumption that guides the
prosecutor’s discretion. With respect to referrals, Article 53 provides that the prosecutor
shall initiate an investigation unless there ‘is not’ a reasonable basis to proceed. By
contrast, under Article 15, the prosecutor may seek authorization to proceed with an
investigation if satisfied there ‘is’ a reasonable basis, and the investigation is subject to
separate authorization by the Pre-Trial Chamber.83 Finally, an Article 12(3) declaration is
not a referral, which is reserved under the Statute for states parties and the Security
Council. Instead, it provides a jurisdictional basis for the initiation of an investigation under
one of the other trigger mechanisms, whether, for example, by the prosecutor acting under
Article 15 or pursuant to a state party referral.84
Article 53(1)(a)–(c) lists the factors that must be considered by the prosecutor in
determining whether there is a reasonable basis to initiate an investigation. Although
Article 53 relates only to referrals by states parties or the Security Council, Rule 48 clarifies
that the same factors are to be applied by the prosecutor when determining whether there
is a reasonable basis to proceed under Article 15. Accordingly, the prosecutor must
consider, as part of any preliminary examination, whether: (a) the information available
provides a reasonable basis to believe that a crime within the jurisdiction of the Court has
been or is being committed; (b) the case is or would be admissible under Article 17; and (c)
taking into account the gravity of the crime and the interests of victims, there are
nonetheless substantial reasons to believe that an investigation would not serve the
interests of justice.
Although the content of this assessment is not detailed in the Statute and Rules, Regulation
49 of the Regulations of the Court stipulates the information that should accompany a
request under Article 15. As the same factors must be applied in all situations (namely
those listed in Article 53(1)(a)–(c)), the requirements of Regulation 49 could also arguably
be applied mutatis mutandis to guide the prosecutor’s assessment under Article 53(1)(a) in
relation to referrals. In particular, Regulation 49 provides that the prosecutor’s
determination to proceed under Article 15 should be supported, inter alia, by reference to
the crimes that the prosecutor believes have been or are being committed, and a statement
of the facts being alleged, to provide the reasonable basis to believe that those crimes have
been or are being committed. This should indicate, as a minimum: (a) the places of the (p.
183) alleged commission of the crimes, e.g. country, town, as precisely as possible; (b) the
time or time period of the alleged commission of the crimes; and (c) the persons involved, if
identified, or a description of the persons or groups of persons involved. The consideration
by the prosecutor following the receipt of a referral could thus be guided by the same
requirements as those set out in Regulation 49. This would not only be advisable as a
matter of internal consistency, but could serve as a benchmark for external review by the
Pre-Trial Chamber in the event of an Article 53(3) request for re-consideration.
The ‘reasonable basis to believe’ standard in Article 53(1)(a) of the ICC Statute requires the
Pre-Trial Chamber, when applying the standard under Article 15, to be ‘satisfied that there
exists a sensible or reasonable justification for a belief that a crime falling within the
jurisdiction of the Court “has been or is being committed”’.85 Pre-Trial Chambers have held
that the standard should be interpreted according to the context in which it operates and in
the light of the underlying purpose of Article 15(4) of the ICC Statute, which is to ‘prevent
the Court from proceeding with unwarranted, frivolous, or politically motivated
investigations that could have a negative effect on its credibility’.86 Consequently, there is
no need for all information provided by the prosecutor to point to one conclusion.87
In terms of admissibility under Article 53(1)(b), the prosecutor must determine whether any
cases that would arise from an investigation into the situation would be admissible, based
on the information available. In particular, Article 17 provides that a case before the ICC
will be inadmissible if that case is or has been the subject of genuine national proceedings
(complementarity), or if the case is of insufficient gravity to justify further action by the
Court (gravity). This assessment is ongoing: made on the basis of the underlying facts as
they exist at the time,88 but subject to revision based on any change to those facts.89
Since at the stage before opening an investigation no actual case will have yet been
identified before the ICC,90 Chambers of the Court have indicated that the assessment of
complementarity and gravity is to be undertaken in relation to the ‘potential cases’ that
would arise from an investigation of the situation.91 As Pre-Trial Chamber II has held:
… admissibility at the situation phase should be assessed against certain criteria

defining a ‘potential case’ such as: (i) the groups of persons involved that are likely
to be the focus of an investigation for the purpose of shaping the future case(s); and
(ii) the crimes within the jurisdiction of the Court allegedly committed during the
incidents that are likely to be the focus of an investigation for the purpose of
shaping the future case(s).92
(p. 184) The Pre-Trial Chamber, nonetheless, clarified that the identification of such
potential cases is without prejudice to individual criminal responsibility as may be
attributed as a result of subsequent investigations. As such, the assessment of admissibility
in relation to potential cases is preliminary in nature, is conducted for the specific purpose
of preliminary examinations, and is not binding for future admissibility determinations or
the subsequent conduct of investigations.93
The term ‘interests of justice’ under Article 53(1)(c) has not been defined in the Statute and
there is no guiding jurisprudence to date on its meaning. As the provision will be applied in
the first instance by the prosecutor, reference can be had to the Office of the Prosecutor’s
interpretative statement in its policy papers on the issue, which call for a narrow definition
of the term.94
If the Office of the Prosecutor determines that there is not a reasonable basis to proceed
with an investigation that is referred by a state party or the Security Council, it must inform
the relevant requesting body. Such a determination will not preclude the prosecutor from
considering further information submitted to him or her regarding the same situation in the
light of new facts or evidence. In the case of Article 15, notice must be provided to those
who provided the information. For state party or Security Council referrals, Article 53(3)
provides that the referring body may request the Pre-Trial Chamber to review a decision of
the prosecutor not to proceed with an investigation and to request the prosecutor to
reconsider that decision. The Pre-Trial Chamber may also, on its own initiative, review a
decision of the prosecutor not to proceed if it is based solely on interests of justice
considerations, meaning that the other requisite factors were fulfilled. In the latter case,
the decision of the prosecutor will be effective only if confirmed by the Pre-Trial Chamber.95
This means that in all other instances the prosecutor retains the discretion not to initiate an
investigation, even if requested to reconsider that decision.
b. Collection of evidence
b.1. Prosecutor
Once an investigation has been opened, the prosecutor is responsible ‘for conducting
investigations and prosecutions before the Court’.96 These functions are exercised
independently of instructions from any external source.97 The Statute mandates to the
prosecutor the focus of investigations and the identification of cases for prosecution within
a (p. 185) situation.98 Thus, while a state or Security Council referral or a Pre-Trial
Chamber authorization decision will determine the scope of the overall situation, the
prosecutor is responsible for identifying the individual criminal responsibility of those
allegedly responsible for crimes within the situation.99
After an investigation, the prosecutor may conclude that there is not a sufficient basis for a
prosecution because: (a) there is not a sufficient legal or factual basis to seek a warrant or
summons under Article 58; (b) the case is inadmissible under Article 17; or (c) a
prosecution is not in the interests of justice, taking into account all the circumstances,
including the gravity of the crime, the interests of victims, and the age or infirmity of the
alleged perpetrator, and his or her role in the alleged crime.100 Hence, the investigation
must extend to determining, on an ongoing basis, factors relevant for assessing jurisdiction,
admissibility, and the interests of justice. It should be noted that these factors might change
over the course of time in the light of new facts or evidence.
Since the main purpose of the collection of evidence is to establish criminal liability in the
context of future prosecutions, the Statute presupposes that as a general rule the
investigation will be conducted in a manner that would render any evidence collected
admissible before the Court.101 Article 69(7) of the ICC Statute provides that ‘evidence
obtained by means of a violation of this Statute or internationally recognized human rights
shall not be admissible if: (a) the violation casts substantial doubt on the reliability of the
evidence; or (b) the admission of the evidence would be antithetical to and would seriously
damage the integrity of the proceedings’.
An investigation may also be relevant for the purposes of prospective sentencing
determinations by the Court. Accordingly, evidence gathered may aid in the Court’s
consideration of the gravity of the crime, the individual circumstances of the convicted
person and the existence of any mitigating and aggravating factors.102 For example,
information or evidence gathered after the decision on confirmation of charges relating to
facts and circumstances not described in the charges cannot be presented as part of the
trial process without resort to the Pre-Trial Chamber for a possible amendment of the
charges. Such information or evidence may be relevant, however, for the purposes of
sentencing.103
Beyond establishing the guilt or innocence of the accused, the investigation may extend to
fulfil other purposes. These include the identification, tracing and freezing, or seizure of (p.
186) proceeds, property, and assets and instrumentalities of crimes for the purpose of
eventual forfeiture.104 Such forfeiture may result in the Court making an order directly
against a convicted person, specifying appropriate reparations to, or in respect of, victims,
including restitution, compensation, and rehabilitation.105
An investigation may also be conducted for the purpose of determining an offence against
the administration of the Court, such as: (a) giving false testimony under oath; (b)
knowingly presenting evidence that is false or forged; (c) corruptly influencing a witness,
obstructing or interfering with the attendance or testimony of a witness, retaliating against
a witness for giving testimony, or destroying, tampering with, or interfering with the
collection of evidence; (d) impeding, intimidating, or corruptly influencing an official of the
Court for the purpose of forcing or persuading the official not to perform, or to perform
improperly, his or her duties; (e) retaliating against an official of the Court on account of
duties performed by that or another official; or (f) soliciting or accepting a bribe as an
official of the Court in connection with his or her official duties.106
Within the framework of the Rome Statute, the prosecutor has the responsibility ‘for
conducting investigations and prosecutions before the Court’, as well as determining the
focus of the investigations and the identification of cases for prosecution.107 As Chambers
of the Court have observed, ‘once the investigation into a situation has been initiated, the
Prosecution is, according to Article 54 of the Statute, the organ of the Court primarily
entrusted with the investigation of those crimes within the jurisdiction of the Court
allegedly committed in the relevant situation’.108 Other than those functions enstrusted to
the Pre-Trial Chamber under Articles 56 and 57,109 the role of the Chamber in relation to
the prosecutor’s ongoing investigation is primarily directed to determining whether the
evidentiary threshold is met for a particular case to proceed at the warrant/summons
issuance stage and for the confirmation of charges.110
While no requirement is provided for under the Statute, the Office of the Prosecutor has
stated a general policy of conducting focused investigations and prosecutions; this means it
will select for investigation and prosecution those who bear the greatest responsibility for
the most serious crimes, based on the evidence that emerges in the course of an
investigation.111 The Regulations of the Office of the Prosecutor further provide that the
objective of the investigation is to select a limited number of incidents which are reflective
of ‘the most serious crimes and the main types of victimisation—including sexual and
gender violence and violence against children—and which are the most representative of
the scale and impact of the crimes’.112
b.2. Defence
Like the statutes of other international courts and tribunals, the Rome Statute regulates
primarily the powers and duties of the organs of the Court and ICC personnel. As explained
in Chapter 9, there is no separate defence organ within the Court, beyond the support
functions of the Defence Support Section within the Registry. While this may (p. 187)
explain that omission of provisions regulating the powers and duties of the defence, it is a
notable legislative lacuna. Consequently, the defence and the accused are referred to in the
Statute and the Rules as the passive beneficiaries of certain rights, such as the respect for
basic human rights standards during the course of investigations and to a fair trial,113 to
disclosure and the inspection of materials,114 to be present during certain measures,115 or
to review of detention.116 These rights serve to constrain the powers of other participants,
notably the prosecution. Certain reciprocal duties of the defence are articulated, such as
the duty to notify the prosecution, sufficiently in advance to enable the prosecution to
prepare adequately and to respond, of its intent to raise the existence of an alibi; to raise a
ground for excluding criminal responsibility provided for in Article 31(1) of the ICC Statute;
as well as to comply with any disclosure ordered by the Chamber.117 The defence also
shares certain duties borne by the prosecution, e.g. in relation to materials obtained via
confidentiality agreements under the same conditions as those set forth in Article 54(3)
(e).118
The active powers of the defence to conduct investigations, to gather evidence, and to
request international cooperation and judicial assistance are not articulated in the Statute.
Rather, the Statute confers upon the Pre-Trial Chamber authority to adopt measures, issue
orders, or seek cooperation, as required, on the defence’s behalf. Article 57(3)(b) provides
that the Pre-Trial Chamber may: ‘Upon the request of a person who has been arrested or
has appeared pursuant to a summons under article 58, issue such orders, including
measures such as those described in article 56, or seek such cooperation pursuant to Part 9
as may be necessary to assist the person in the preparation of his or her defence’.
Moreover, such requests made by the Chamber will be channelled to states by the Registrar,
not the defence counsel, and the Registrar will also be responsible to receive the responses,
information, and documents from requested states.119 The scheme calls into doubt that the
defence, as an alternative, may independently request judicial assistance from states.
Notwithstanding the limitations of the procedural vehicle of seeking a court order, the
defence is able to request all the forms of cooperation foreseen in Part 9, including
participation in the execution of the request. The defence will also be able to rely on the
duties of the prosecution to investigate exonerating circumstance equally and will be able
to address any due diligence failing by the prosecution to the Chamber. While the defence
does not carry the obligation of objectivity in the conduct of its own investigations or carry
the burden of proof, it must respect any practice directions of the Court, the code of
conduct for defence counsel,120 and must not commit offences against the administration of
justice.121
b.3. Chambers
Reflecting the contribution of the continental civil law tradition during the negotiations for
the establishment of the ICC, the ICC Statute and Rules reserve certain investigative
functions for the judges of the ICC, and in particular the Pre-Trial Chamber. While the Pre-
Trial Chamber is not envisaged to take on the role of an investigative magistrate typical to
some continental law systems or an investigative body as such, the distribution of roles (p.
188) between the different organs of the Court is more diversified than before the ICTY,
ICTR, and SCSL.
First, the Pre-Trial Chamber may assist the prosecution by authorizing specific
investigations on the territory of a state in case the state is clearly unable to execute a
request for cooperation due to the unavailability of any authority or any component of its
judicial system (failed state scenario).122 Besides, the Pre-Trial Chamber can take certain
investigative measures at the request of the prosecutor or on its own initiative for the
collection or preservation of evidence when faced with a unique investigative opportunity.
The exercise of such powers at the Chamber’s own initiative must be preceded by
consultations with the prosecutor, so as to ascertain whether there is good cause why the
prosecutor did not request measures to be taken in relation to a unique investigative
opportunity. The Chamber itself will only act on its own initiative if it concludes that the
prosecutor’s failure to request such measures is unjustified.123 The Statute provides the
Pre-Trial Chamber with a number of specific steps it can take in this regard, ‘as may be
necessary to ensure the efficiency and integrity of the proceedings and in particular to
protect the rights of the defence’. A non-exhaustive list of possible actions that can be taken
is included in Article 56(2) of the ICC Statute.124 This includes the ordering of the
appointment of an ad hoc counsel ‘to represent the general interests of the defence’ for the
purpose of certain investigative acts.125
Less clear is the scope of the powers of the Pre-Trial Chamber under Article 57(3)(c) of the
ICC Statute to ‘[w]here necessary, provide for the protection and privacy of victims and
witnesses, the preservation of evidence, the protection of persons who have been arrested
or appeared in response to a summons, and the protection of national security information’.
This open-ended provision could be interpreted as providing for broad and general powers
for the Pre-Trial Chamber during the pre-trial phase and, on one interpretation, provide for
a more interventionist bench.126 It is set in the Statute, nonetheless, as an exception to the
general duties and powers with respect to investigations conferred on the prosecutor under
Article 54. Article 57(3)(c) of the ICC Statute must, of course, also be read together with
other Articles such as Article 68 on the protection and privacy of victims and witnesses and
Article 72 on the protection of security information. Consequently its significance lies in
clarifying certain competences of the Pre-Trial Chamber at the pre-trial stage.127 To
exercise its functions under this provision, the Pre-Trial Chamber will depend on
information it receives from the parties. In particular, Regulation 48 stipulates that the Pre-
Trial Chamber may request the prosecutor to provide specific or additional documents in its
possession, or summaries thereof, in order to exercise its function under, inter alia, Article
57(3)(c).
These provisions were relied upon by Pre-Trial Chamber I during the early life of the Court
to organize a status conference with the prosecution on the progress of the investigation in
the DRC.128 However, status conferences are only provided for under the Rules in two
instances: before the confirmation hearing to control the disclosure between parties and set
the date for the hearing, and before the trial to set the date of the trial and to (p. 189)
facilitate its fair and expeditious conduct.129 It has been argued that by organizing a status
conference at this early moment during investigations, the Pre-Trial Chamber ‘shifted the
equilibrium between legal traditions reached in Rome, arguably getting closer to being an
Investigating Judge than provided in the Statute and the ICC RPE’.130 Miraglia argues that
the decision was made in an attempt to speed up investigations and ostensibly to safeguard
the rights of ‘prospective suspects’ to whom delay would be prejudicial.131 The Pre-Trial
Chamber also exercised a more assertive role by requesting reports from the prosecutor on
its progress within the situation.132
On the one hand, it may be argued that the interpretation by Pre-Trial Chamber I of Artcle
57(3)(c) of the ICC Statute in this manner overextends the powers of the bench. The Pre-
Trial Chamber’s primary function is to serve as a controlling organ, not an investigating
body.133 Alternatively, the interpretation of the Pre-Trial Chamber might also be viewed as
part of its supervisory functions and for ensuring that the rights and interests of the
defence are respected during the investigation.134
b.4. Legal representatives of victims
While the Statute does not foresee a role for victims or for their legal representatives in
gathering evidence and conducting investigations, the Appeals Chamber has held that
victims participating at trial may, in limited circumstances, present evidence pertaining to
the guilt or innocence of the accused and may challenge the admissibility or relevance of
evidence. This role will be further addressed in Chapter 10.
c. Objectivity
In conducting its investigative activities, the Office of the Prosecutor carries an explicit
statutory duty to ‘investigate incriminating and exonerating circumstances equally’.135 In
order to ‘establish the truth’, the prosecution is required to ‘investigate all facts and
evidence relevant to an assessment of whether there is criminal responsibility under the
Statute’.136 As the Appeals Chamber has stated: ‘The fact that the Prosecutor is required
“to investigate incriminating and exonerating circumstances equally”, pursuant to article
54(1)(a) of the Statute, means that the Prosecutor will be aware, during the course of his
investigations, of material that may be of assistance to the Defence.’137
The Regulations of the Office of the Prosecutor indicate that, in reviewing the information
and evidence collected, the Office will develop a provisional case hypothesis (or
hypotheses), identifying the incidents to be investigated and the person or persons who
appear to be the most responsible. The provisional case hypothesis (or hypotheses) will (p.
190) include an indication of possible charges, forms of individual criminal responsibility,
and potentially exonerating circumstances.138 The case hypothesis and all plans are to be
reviewed and adjusted on a continuous basis.139
The Regulations further provide that:
In the analysis of information and evidence regarding alleged crimes, the Office
shall develop and apply a consistent and objective method for the evaluation of
sources, information and evidence. In this context, the Office shall take into account
inter alia the credibility and reliability of sources, information and evidence, and
shall examine information and evidence from multiple sources as a means of bias
control.140
In comparison, the draft Regulations expressly provided for ‘truth-seeking standards’,

encompassing an obligation for the prosecution to investigate ‘both incriminating and
exonerating circumstances as a matter of equal priority and with equal diligence’. These
standards were removed in the final version of the Regulations, but would appear to be
captured, in any event, by the requirements of Article 54(1) and the duty of due
diligence.141
It follows that the prosecution acts as an ‘officer of justice’, rather than a partisan actor.142
Nonetheless, some authors have expressed scepticism about the realization in practice of
such non-partisan functions, given the primarily adversarial nature of proceedings.143 In
Mbarushimana the prosecution was reprimanded by the Pre-Trial Chamber, which found the
confrontational questioning methods used by some investigators inappropriate in view of
their duty of objectivity and felt that such techniques may significantly weaken the
probative value of the evidence thus obtained.144
d. Duties and powers of the prosecutor
The powers of the prosecutor during investigations extend to: (a) the collection and
examination of evidence; (b) requesting the presence of and questioning persons being
investigated, victims, and witnesses; (c) seeking the cooperation of any state or
intergovernmental organization or arrangement in accordance with its respective
competence and/or mandate; (d) entering into such arrangements or agreements, not
inconsistent with this Statute, as may be necessary to facilitate the cooperation of a state,
intergovernmental organization, or person; (e) agreeing not to disclose, at any stage of the
proceedings, (p. 191) documents or information that the prosecutor obtains on the
condition of confidentiality and solely for the purpose of generating new evidence, unless
the provider of the information consents; and (f) taking necessary measures, or requesting
that necessary measures be taken, to ensure the confidentiality of information, the
protection of any person, or the preservation of evidence.145
In addition to collecting exculpatory evidence and respecting the rights of the persons
under the Statute,146 the Office of the Prosecutor carries certain duties related to the
interests and personal circumstances of victims and witnesses. These duties are especially
relevant in relation to issues of sexual violence, gender violence, or violence against
children.147
e. Duty of due diligence
Arguably, the parties should exercise due diligence in the conduct of their respective
investigations. While no such requirement is provided for in the ICC Statute or the RPE, an
expectation that parties exercise due diligence can indirectly be construed. For example, it
can be held to derive from Article 84(1)(a) of the ICC Statute. This article states that a
conviction or sentence can be revised where new evidence is discovered and where such
evidence ‘was not available at the time of trial, and such unavailability was not wholly or
partially attributable to the party making such application’. This latter part may be
interpreted as requiring that the evidence would not have been available at trial through
the exercise of due diligence by the party.148
Unlike those of the ad hoc Tribunals, the Regulations of the Office of the Prosecutor do not
include an explicit duty of diligence in the conduct of investigations. Nonetheless, such duty
may be read in the requirement that OTP staff should uphold the highest standards of
efficiency, competence, and integrity.149
f. Duration of investigations
A formal procedure marks the opening of an investigation. Where an investigation is opened
following a state party referral or an Article 15 authorization, this is done by formal
notification to all states parties and other states which would normally exercise jurisdiction
over the crimes.150 Investigations initiated following a Security Council referral are notified
to the Security Council through the UN Secretary-General.151
Nonetheless, a limited number of investigative activities may pre-date the formal opening of
investigations. In particular, during the preliminary examination stage, the prosecutor may
receive written or oral testimony at the seat of the Court.152 Such testimony must be
collected pursuant, mutatis mutandis, to the rules governing the record of questioning
during investigations, including, in the case of potential suspects, the applicable procedures
for audio or video recording.153
In terms of the end point of investigations, it is not required that an investigation into the
conduct of a suspect should stop at the start of the prosecution phase.154 This corresponds
with the general obligation to establish the truth as well as with the specific duty on the (p.
192) prosecution to collect exculpatory evidence. Since the relevance of a particular item of
evidence or lead may only become apparent during the course of proceedings, when
assessed against other evidence, including witness testimony, or in the light of the defence’s
case, this duty extends also into the trial phase. The Appeals Chamber has held it not
necessary ‘that the Prosecutor’s investigation … must be brought to an end before the
confirmation hearing, barring exceptional circumstances that might justify later isolated
acts of investigation’. This applies equally whether ‘“investigation in the current case”
refers to the investigation of [the defendant] with respect to the specific charges which the
Prosecutor intends to bring in the upcoming confirmation hearing, or whether it extends to
the investigation of [the defendant]’s potential criminal responsibility for other conduct not
encompassed by the charges’.155 The Appeals Chamber ruled that Article 61(9), which
provides that the prosecutor may amend or withdraw charges after they are confirmed,
indicates the prosecutor’s flexibility with respect to the investigation, and that ‘the
Prosecutor does not need to seek permission from the Pre-Trial Chamber to continue his
investigation’.156 Moreover, the Appeals Chamber concluded that the prosecution maintains
the general power to investigate crimes of relevance to the situation and the individual:
‘The document containing the specific charges of the confirmation hearing pursuant to
article 61 is an assertion by the prosecutor that he intends to bring a person to trial for the
specific crimes set out in the document; it is not an assertion that he will not seek to put the
suspect on trial for other crimes in the future.’157
Nonetheless, the Appeals Chamber has also emphasized that ‘ideally, it would be desirable
for the investigation to be complete by the time of the confirmation hearing’ and that ‘the
investigation should largely be completed at the stage of the confirmation of charges
hearing’; noting that where the prosecutor requires more time to complete the
investigation, Rule 121(7) of the ICC RPE permits the prosecutor to seek a postponement of
the confirmation of charges hearing.158
iv. SPSC
a. Definition
In line with other international and hybrid criminal tribunals, the TRCP defined the
‘investigation’ as encompassing ‘all the activities conducted by the Public Prosecutor under
the present regulation for the collection of information and evidence in a case whether
before or after the indictment has been presented’.159
No preference was included regarding the notitia criminis. Any person may report the
commission of a crime to the public prosecutor.160 Besides, a system of mandatory
reporting of crimes for public officers was provided for.161 Investigations were initiated by
the public prosecutor following the reporting of the crime.
b. Delineation
Whereas it followed from the definition that investigations may be ongoing after an
indictment was presented, it may be argued that the investigation should normally be
completed at that stage. For example, this follows from the wording of Section 24 of the
TRPC: ‘Upon completion of the investigation, if the result so warrants, the Public
Prosecutor shall present a written indictment of the suspect to the competent District
Court.’ (p. 193) Besides, at the time the indictment was presented to the court, the
prosecutor was required to make copies of all documentary evidence, together with all
statements of witnesses whose testimony the prosecutor intended to present at trial as well
as all exonerating evidence, available to the defence.162
The dual competence to conduct criminal investigations and to prosecute was vested in the
public prosecutor.163 The public prosecutor held the exclusive competence to conduct
criminal investigations.164 In order to fulfil this duty, the public prosecutor was empowered
to: (a) collect and examine evidence; (b) request the presence of and question persons
being investigated, victims, and witnesses; and (c) seek cooperation of any authority in
accordance with its respective competence.165 The public prosecutor could rely on the
assistance of the police and ‘any other competent body’.166 The public prosecutor should
conduct the investigation independently, ‘without improper influence, direct and indirect,
from any source, whether within or outside the civil administration of East Timor’.167 In the
conduct of the investigation, the public prosecutor was bound to ‘respect the interests and
personal circumstances of victims and witnesses’.168 Moreover, the public prosecutor
should at all times fully respect the rights of persons.169 For some investigative acts, a
warrant or order by an investigating judge was required.170
Where the TRCP vested the exclusive responsibility to conduct investigations in the public
prosecutor, and where he or she had a duty to investigate incriminating and exonerating
circumstances equally, there seemed to be no room for a defence investigation.171 Similarly
to the defence at the Extraordinary Chambers, the defendant could request the public
prosecutor or the investigating judge ‘to order or conduct specific investigations in order to
establish his or her innocence’.172
Nevertheless, the defence was not precluded from conducting its own investigations,173
although this rarely took place in practice. The fact that no single defence witness was
called in the first 14 cases is telling.174 In this regard, the absence of qualified defence
counsel in East-Timor may be noted.175 Additionally, the defence suffered greatly from
institutional (p. 194) shortcomings, preventing in-depth defence investigations.176 Notably,
a separate Defence Lawyers Unit would only be created in September 2002.177
d. Objectivity
Requirements of objectivity and of impartiality of the public prosecutor follow from the
constitution of East-Timor.178 These requirements were reflected in the TRCP which
required the public prosecutor to conduct criminal investigations ‘in order to establish the
truth’, and further that: ‘In doing so, the public prosecutor should investigate incriminating
and exonerating circumstances equally.’179 Such a prosecutorial role coincides with the
ICC’s procedural model and requires the public prosecutor to actively investigate
exonerating circumstances and leads.
In line with other international criminal tribunals, a duty of due diligence in the conduct of
the investigation was incumbent on the parties. Such duty may be derived from limitations
as to the introduction of new evidence on appeal. Here too, the introduction of new
evidence was limited to instances where the evidence ‘was not known to the moving party
at the time of the prior proceedings and could not have been discovered through the
exercise of due diligence’.180
v. ECCC
a. Definition
No definition is provided in the ECCC Law, the ECCC Agreement, or the IR on the
investigation phase.
b. Delineation
The exclusive competence to initiate prosecutions is vested with the co-prosecutors. They
may do so proprio motu or on the basis of a complaint.181 The IR do not express any
preference regarding the notitia criminis. Information or complaints may be received from
persons, organizations, or from other sources that witnessed, have knowledge of, or were a
victim of the alleged crime.182 Besides, lawyers or victim associations are allowed to lodge a
complaint on behalf of a victim.183 Importantly, it should be noted that the lodging of a
complaint does not automatically initiate the prosecution. A decision (p. 195) not to pursue
a complaint does not have the effect of a res judicata and may be changed afterwards.184
Comparable to the ICC, the procedural framework of the ECCC provides for a preliminary
phase, prior to the commencement of the investigation proper. The purpose of this
preliminary investigation is to ‘determine whether evidence indicates that crimes within the
jurisdiction of the ECCC have been committed and to identify suspects and potential
witnesses’.185
The preliminary investigation ends with the sending of the introductory submission to the
co-investigating judges, which triggers the start of the judicial investigation. The threshold
for sending the introductory submission is ‘reason to believe that crimes within the
jurisdiction of the ECCC have been committed’.186
A judicial investigation is compulsory for all crimes that fall within the jurisdiction of the
ECCC.187 Its scope is limited to the facts (and the persons) named in the introductory
submission by the co-prosecutors. The co-investigating judges cannot themselves extend
the scope (‘saisine’) of their investigation. When they discover new facts, they should inform
the co-prosecutors and can only investigate these facts where the co-prosecutors decide to
file a supplementary submission. At any moment during the investigation, the co-
investigating judges can charge (‘mettre en examen’) suspects named in the introductory
submission or any other person against whom they have ‘clear and consistent evidence
indicating that such person may be criminally responsible for the commission of a crime
mentioned in the introductionary or supplementary submission(s)’.188 The co-investigating
judges conduct the investigation in an impartial manner and can undertake all investigative
actions ‘conducive to ascertain the truth’.
In contrast with the ICC, the ad hoc Tribunals, and the SCSL, and in line with civil law
criminal justice systems, the ECCC’s procedural framework provides for a strict separation
between the investigation and prosecution phase. When the co-investigating judges
consider their work finished, they notify the parties who can request further investigative
actions.189 Consequently, the case file is sent back to the co-prosecutors. If the co-
prosecutors decide that the investigation is concluded, they send a final submission to the
co-investigating judges to issue a closing order either indicting the person and sending him
or her to trial or dismissing the case.190
(p. 196) The reopening of the judicial investigation is only possible where new evidence is
discovered after a dismissal order has been issued.191 Where a closing order has been
issued sending the person(s) to trial, additional investigations may only be ordered by the
Trial Chamber.192 Under the same conditions as the co-investigating judges, the Trial
Chamber may conduct on-site visits, interview witnesses, conduct searches, seize any
evidence, and order expert opinions.193 However, it is clear that the procedural framework
of the ECCC provides for a system whereby the investigation is expected to be completed
before the start of the trial phase. To the extent that such set-up proofs workable, it may
offer valuable counter-arguments against the assumptions underlying the procedural
frameworks of the other international criminal tribunals that ongoing investigations until
the end of proceedings are unavoidable, considering the scope and nature of the crimes
within the jurisdiction of these tribunals.194
During the preliminary investigation, a limited number of investigative powers are at the
co-prosecutors’ disposal. They include the ability to summon and interview persons, limited
search and seizure powers, and the competence to take suspects into custody.195 The co-
prosecutors can rely on the assistance of judicial police officers.196
In the course of the judicial investigation, a wide array of investigative powers is at the co-
investigating judges’ disposal. They cannot only issue orders necessary for the conduct of
the investigation but also summon and question suspects and charged persons, interview
witnesses and victims, seize evidence, seek expert opinions, and conduct on-site
investigations.197 The co-investigating judges can order provisional detention after an
adversarial hearing.198 Additionally, they can take appropriate measures to provide for the
safety and support of potential witnesses and other sources, and seek assistance from
states, organizations, or other sources they deem appropriate. Characteristic of civil law
criminal justice systems, a case file (‘dossier’) will be kept by the greffier of the co-
investigating judges.
The inquisitorial style of investigations also impacts on the investigative opportunities of the
other actors. The procedural rules do not envisage a fully-fledged defence investigation. In
principle, the charged person and the civil parties are not expected to conduct their own
investigation. According to the co-investigating judges:
Before this Court, the power to conduct judicial investigations is assigned solely to
the two independent co-investigating judges and not to the parties. There is no
provision which authorizes the parties to accomplish investigative action in place of
the co-investigating judges, as may be the case in other procedural systems.199
(p. 197) Rather, parties should avail themselves of the Rule ‘55(10) IR mechanism’ which
allows the parties to request the co-investigating judges to undertake a certain investigative
act. In having recourse to this mechanism, the parties should (1) identify the specific action
requested (‘specificity-requirement’), and (2) explain why the action is necessary for the
investigation in ascertaining the truth (‘prima facie relevance-requirement’).200 These
requirements are cumulative. Nonetheless, the investigating judges have a broad discretion
in the way they conduct their investigation. Through Rule 55(10), ‘the parties can suggest,
but not oblige, the co-investigating judges to undertake investigative actions’.201 The co-
investigating judges will independently assess whether the requested investigative action is
useful.202
The parties may undertake ‘preliminary inquiries as are strictly necessary for the effective
exercise of their right to request investigative action’.203 The exact boundaries of what is to
be considered ‘preliminary inquiries’, rather than an investigation, are to be determined in
jurisprudence. For example, the Pre-Trial Chamber has clarified that the inquiry of non-
public sources may amount to an investigation.204
Concerning appeals, it should be noted that the Cambodian Code of Criminal Procedure
provides the ‘Investigating Chamber’ with broad powers on appeal, including the power to
‘order additional investigative action which it deems useful’.205 The ECCC Pre-Trial
Chamber has limited the scope of the appeal where the Internal Rules explicitly refer only
to appeals lodged against orders by the co-investigating judges denying a request, and
thereby excluded the power to order additional investigative actions.206 According to the
Pre-Trial Chamber: ‘This departure is justified by the unique nature of the cases before the
ECCC, which involve large scale investigations and extremely voluminous cases, and where
the Pre-Trial Chamber has not been established and is not equipped to conduct
investigations.’207 Therefore, the exercise of discretion will only be overturned where the
decision rejecting the request for investigative action was: (1) based on an incorrect
interpretation of the governing law, (2) based on a patently incorrect conclusion of fact, or
was (3) so unfair or unreasonable as to constitute an abuse of the co-investigating judges’
discretion.208
(p. 198) d. Objectivity
While the co-prosecutors should be ‘independent’ in the execution of their duties, they are
not, unlike the co-investigating judges, subject to an explicit obligation to investigate
incriminating and exonerating circumstances evenly.209 However, the co-prosecutors have
the obligation to disclose to the co-investigating judges ‘any material that in the actual
knowledge of the co-prosecutors may suggest the innocence or mitigate the guilt of the
suspect or the charged person or affect the credibility of the prosecution evidence’ as soon
as possible after the filing of the introductionary submission.210 Besides, given the
principally civil law nature of proceedings, it may be argued that the co-prosecutors should
assist the Court in its truth-finding mission, and, accordingly, investigate facts and
circumstances à charge and à décharge equally. In this regard, it should be noted that the
co-prosecutors are appointed by the Supreme Court of the Magistracy and should, as far as
the national co-prosecutor is concerned, be selected from among the Cambodian
professional judges.211 Consequently, they may be expected to behave as ‘officers of the
court’. However, to a certain extent, the obligation on the co-prosecutors to actively pursue
exonerating circumstances or facts, not only during the preliminary investigation but also
thereafter, remains uncertain.
The co-investigating judges should be impartial and independent in the execution of their
function.212 They may take such investigative measures that are ‘conducive to ascertaining
the truth’ and should, to that extent, equally investigate incriminating and exonerating
circumstances.213 The judicial investigation should thus be objective in nature.214
In one instance, the Pre-Trial Chamber found that the co-investigating judges had
committed an error where they stated that ‘an investigating judge may close a judicial
investigation once he has determined that there is sufficient evidence to indict a Charged
Person’.215 Rather, the judges should first close their investigation, when they consider that
they have fulfilled examining all acts deemed necessary in ascertaining the truth. Before
issuing a closing order, they should then (upon receiving the final submissions from the co-
prosecutors) assess whether there is sufficient evidence to send the charged person to (p.
199) trial.216 Their obligation to search for exculpatory evidence implies that they have to
review documents and other materials, when there is ‘prima facie reason to believe’ that
these may contain exonerating evidence.217
e. Other duties relevant to the conduct of the investigation
A duty of due diligence is incumbent on the co-investigating judges.218 Besides, the
diligence displayed in the conduct of the investigation is relevant where a person is
deprived of his or her liberty, for the consideration of the continuation or release of that
person.219 No duty of (due) diligence in the conduct of investigations, incumbent on the co-
prosecutors or other parties, seems to be explicitly provided for by the procedural
framework of the ECCC. However, such duty arguably derives from different provisions. For
example, it follows from the IR that a revision of a final judgment is possible on the ground
that new evidence has been discovered. One of the preconditions for such revision is that
the evidence ‘was not available at the time of trial, and such unavailability was not wholly
or partially attributable to the party making the application’.220 In line with the previous
argumentation regarding the ICC, it is argued here that such requirement refers to a duty
of diligence in the conduct of investigations, incumbent on the parties.221 Further, in the
initiation of actions, the co-prosecutors are expected to represent the general interests of
the society.222
vi. STL
a. Definition
The STL RPE provide a definition of what is considered to be the ‘investigation’ which is
identical to the definition provided for by the ad hoc tribunals and the SCSL.223 Hence, the
same observations are applicable here too.224
b. Delineation
In line with the procedural frameworks of other international criminal tribunals, the
investigation phase formally ends with the confirmation of the indictment.225 However, in a
similar vein, several provisions indicate that investigations may continue thereafter. By way
of example, the possibility to amend the indictment after confirmation,226 under certain
conditions, or the possibility for parties to introduce additional evidence before the Appeals
Chamber227 indicate the possibility of continued investigations.
The STL prosecutor has a twofold responsibility both to investigate and to prosecute
persons responsible for crimes falling within the jurisdiction of the STL.228 The prosecutor
should act independently in the conduct of investigations as a separate organ of the tribunal
(p. 200) and not seek or receive instructions from any government or other source.229 No
minimum threshold, in the form of a requirement of ‘sufficient basis to proceed’, is provided
for.
In the conduct of the investigation, the STL prosecutor may particularly benefit from
evidence that was previously collected by the United Nations International Independent
Investigation Commission (UNIIIC) established by the Security Council and from evidence
gathered and handed over by the national authorities of Lebanon.230 Regarding the
investigations that were previously conducted by the UNIIIC, the STL Agreement requires
the Tribunal to make arrangements for ‘coordinated transition’ to the STL.231 Article 4 of
the STL Statute regulates the transfer of the results of investigations conducted by the
Lebanese judicial authorities. According to Article 4(2) of the STL Statute, the results of the
investigation on the attack against Hariri and a copy of the relevant court records will be
transferred to the STL upon request by the Tribunal.232 Also regarding crimes connected to
this attack, the Lebanese authorities should send the results of the investigation and the
relevant court records to the Tribunal upon its request. This information should allow the
STL prosecutor subsequently to decide whether these cases fall within the jurisdiction of
the Court and to request the transfer of the case.233 To that extent, a request by the pre-
trial judge for deferral may be made upon application by the prosecutor (within two months
after assumption of office).234 Such application was made on 25 March 2009.235
Article 19 of the STL Statute makes specific provision for the evidence that has been
gathered by the UNIIIC or the Lebanese authorities prior to the establishment of the STL. It
provides that the evidence collected ‘shall be received’ by the Tribunal. Its admissibility will
be decided on the basis of international standards on the collection of evidence.236
It is to be recalled that for the Tribunal’s jurisdiction over two categories of attacks, the
STL Statute establishes additional criteria. Hence, in the course of the investigation, but
prior to the submission of an indictment, the prosecutor may seek a ruling from the pre-trial
judge as to whether there is prima facie evidence that an attack that occurred between (p.
201) 1 October 2004 and 12 December 2005 falls within the jurisdiction of the Tribunal.237
No oversight is provided for a decision by the prosecutor that a crime does not fall within
the jurisdiction of the tribunal. Concerning attacks after 12 December 2005, the prosecutor
should send a reasoned decision to the STL President, who will forward it to the relevant
parties.238
The powers of the OTP in the conduct of the investigation include the power to question
suspects, victims, and witnesses; to collect evidence; and to conduct on-site
investigations.239 The OTP may be assisted by the Lebanese authorities. The prosecutor
also holds the power to undertake ‘other measures as may appear necessary for the
completing of the investigation and the conduct of the prosecution at trial’. Such measures
may include those for the protection of potential witnesses and informants.240 Further, the
prosecutor may seek the assistance of states and international bodies and request such
orders as are necessary from the pre-trial judge or Chamber.241 It follows from Rule 64 STL
RPE that the prosecutor is responsible for the retention and storing of information and
physical or electronic material obtained in the conduct of the investigation.
The defence is expected to conduct its own investigations, but the investigative powers,
duties, and responsibilities are left undefined. The Defence Office may assist the defence
with the collection of evidence.242 Notably, the Head of Defence Office may seek
cooperation from any state, entity, or person to assist the Defence.243 Besides, the defence
may request the pre-trial judge to issue such orders, summonses, subpoenas, warrants, and
transfer orders or requests as may be necessary for the purposes of the investigation.244
The pre-trial judge possesses exceptional yet important fact-gathering powers. These
include powers in relation to ‘unique opportunities to gather evidence’ and the power to
collect evidence where a party or a victim participating in the proceedings, on a balance of
probabilities, is not in a position to collect that evidence. The judge may gather such
evidence proprio motu where it is imperative to ensure the interests of justice.245 Further,
he or she holds the power to question anonymous witnesses.246
Victims may not participate in the investigation before the confirmation of the
indictment.247 However, victims may conduct their own investigations or participate in
investigative acts following the confirmation of the indictment.248
(p. 202) d. Objectivity
According to Rule 55(C) of the STL RPE, the prosecutor should ‘assist the Judges in
establishing the truth’. According to the pre-trial judge:
… the Prosecutor must act, not merely as a party to the proceedings, but also as an
agent of Justice, representing and safeguarding the public interest. In that capacity,
in accordance with Rule 55(C), he shall “assist the Tribunal in establishing the truth
and protect the interests of the victims and witnesses. He shall also respect the
fundamental rights of suspects and accused.249
In this regard, the role of the prosecutor during the investigation resembles that of the
prosecutors of the ad hoc Tribunals. Similarly, the prosecutor has a responsibility to
disclose exculpatory materials,250 notwithstanding some exceptions. The prosecutor’s role
is that of an ‘organ of justice’. However, in line with the ad hoc Tribunals, no responsibility
is incumbent on the prosecutor to actively search for exculpatory material or to investigate
incriminating and exonerating circumstances equally. The prosecutor will thus investigate
from a prosecutorial perspective.
No explicit requirement for the parties to conduct their respective investigations with due
diligence can be found in the procedural framework of the STL. However, such a
requirement, incumbent on the parties, can indirectly be construed. First, additional
evidence may only be presented before the Appeals Chamber by a party where such
evidence was not available at trial and could not have been discovered through the exercise
of due diligence in the conduct of the investigation.251 Secondly, a review of a final
conviction is only possible where ‘material new evidence’ is discovered which could not
have been discovered by the parties through the exercise of due diligence.252
vii. Synthesis
On the basis of the preceding comparative overview, a number of preliminary observations
can be made.
First, it may be noted that at most tribunals under review, the prosecutor bears the twofold
responsibility of investigating and prosecuting. With the exception of the ECCC, the
investigative and prosecutorial functions reside in the Office of the Prosecutor. Where the
prosecution is responsible for the conduct of the investigation and the prosecution, it is
allowed to continue its investigations after the start of the prosecution phase proper. At the
ECCC, the co-investigating judges are jointly in charge of the judicial investigation.
Secondly, unlike at the historic tribunals scrutinized, the prosecutors of the present-day
international criminal tribunals do not possess full law enforcement powers for the
collection of evidence or the arrest of suspects, but must rely on a system of international
cooperation and judicial assistance involving the national authorities of relevant states. The
prosecutor can nonetheless control aspects of the evidence gathering process. Depending
on the institution and the nature of its mandate, this may be done either in consultation
with or sometimes without the permission of the relevant authorities. Judicial control over
the evidence gathering process is provided for in specific circumstances (e.g. in (p. 203)
case of ‘unique investigative opportunities’ at the ICC or ‘unique opportunities to gather
evidence’ at the STL) and is required for certain investigative measures (as will be
explained further in this chapter).
Thirdly, the powers and duties of the defence or other participants in the evidence
gathering process, such as legal representatives of victims where provided for, are typically
unregulated. These measures are usually channelled through the Chambers of each court.
At most Tribunals, the defence may conduct its own investigations. While not explicitly
provided for, this right derives from several other principles, including the equality of arms
principle and the general right of the accused to have adequate time and facilities for the
preparation of his or her defence. Only the ECCC prohibit defence investigations that go
beyond what are understood to be ‘preliminary inquiries’.
Fourthly, different duties are incumbent on the prosecutor in the conduct of the
investigations. Among the most important duties detected are the duties to act
independently in the conduct of investigations and to act with due diligence.
Fifthly, the law and practice of the tribunals under review provide different answers
regarding the duty of objectivity of the prosecutor in the conduct of investigations. Where
the case law of the ad hoc Tribunals describes the prosecutor in terms of an ‘organ of
international criminal justice’, it is unclear what the precise implications of such a
pronouncement are. Clear limitations, however, are that there is no obligation incumbent on
the prosecutor to actively search for exonerating evidence and that the duty of the
prosecution to disclose exculpatory evidence applies only to evidence in its possession.
Similarly vague is the requirement that the STL prosecutor should act as an ‘agent of
justice’ in the conduct of the investigation. Other tribunals (ICC, SPSC) explicitly require
the prosecutor to ‘establish the truth’ and, to that extent, investigate incriminating and
exonerating circumstances equally. At the ECCC, the co-investigating judges are likewise
required to investigate both incriminating and exonerating circumstances.
Lastly, investigative actions undertaken by the prosecutor go beyond establishing the guilt
or innocence of a person and may serve distinct purposes, including the broader goal of
ensuring the administration of justice by anticipating the future imposition of sentences or
an eventual forfeiture. Besides, investigations may be undertaken in order to establish the
existence of mitigating or exonerating circumstances, or to prepare and submit an
indictment for contempt.
B. Evaluation
i. Human rights law
The right to a fair trial and human rights law in general do not offer much guidance as to
the ‘delineation and scope’ of the investigation phase or, more generally, on how the
investigation should be structured.253 However, some exceptions can be noted. Most
importantly, the requirement of a strict separation between the functions of judging and of
investigating under human rights law has certain implications on how the investigation
phase ought to be structured.
Guidance can be found in the case law of the ECtHR on the impartiality of judges.254 It
should be reiterated that the case law distinguishes between objective and subjective (p.
204) impartiality. While the former refers to institutional bias, the second refers to personal
bias. Proving subjective partiality is difficult as the judge is presumed to be impartial and
the contrary has to be proven.255 In turn, objective impartiality requires that the judge
keeps sufficient distance from the prosecution or the parties in the proceedings.
Some judgments of the ECtHR deal with the situation where a judge served as a prosecutor
in the same case.256 However, no problem in this regard can be discerned in the
organization of the investigation in international criminal procedure. The adjudicating
judges are not involved in the investigation of the crimes at the international criminal
tribunals. Instead, the tribunals under review have established the (Office of the)
Prosecutor as a separate organ or office in the court’s structure.257
More relevant is the question whether an adjudicating judge may be previously involved as
an investigating judge in the same case. The case law of the ECtHR is not entirely clear. The
investigating judge is supposed to be impartial and should investigate not only à charge but
also à décharge. Still, in the case of De Cubber v. Belgium, the ECtHR concluded after
taking several factors into consideration, that Article 6(1) ECHR had been violated. In
particular, the Court looked at the relationship between the investigating judge and the
prosecution, the wide-ranging powers at the investigating judge’s disposal, the fact that he
presided over the preparatory investigation (which was secret and inquisitorial in nature),
that he had placed the accused in detention on remand, and that he had interrogated him
on several occasions.258 Through the means of investigations, this investigating judge had
already acquired a particularly detailed knowledge of the case file, enabling him to play a
crucial role in the trial court. This allowed him to have a pre-conceived opinion at the
moment of decision or placed him in a position where he might have to review the
investigative acts ordered or taken by the investigating judge.259 The Court found that the
presence of the investigating judge on the bench ‘provided grounds for some legitimate
misgivings on the applicant’s part’.260 In this regard, it may be noted that the accused
person in criminal proceedings will regard the investigating judge as the adversary and not
as being impartial.261 It has been noted that the holding of the Court in this case
‘demonstrates very clearly not just the importance of the separation of the functions of
investigating and judging … , but also the conception of criminal proceedings as involving
two quite separate phases calling for separate structures’.262
Nonetheless, in other cases where the deciding judge had previously been involved in
investigative acts, the ECtHR did not conclude a violation of the requirement of objective
impartiality. What matters to the Court is the extent and nature of the pre-trial measures
undertaken by the judge.263 For example, in Fey v. Austria the Court decided that the
‘extent and nature of the pre-trial measures taken by the District Court were clearly
distinguishable from those that were dealt with in the above-mentioned De Cubber
Judgement’.264 The Court confirmed that the judge can be involved at the pre-trial stage, (p.
205) and can undertake certain pre-trial measures, where those are of a preparatory nature
and designed to complete the case file before the hearing.265 The Court also emphasized
that the judge had not ‘committed the person for trial’.266
The judge at the trial stage may also have been involved in decisions regarding the
detention of the accused. This was the case in Hauschildt v. Denmark.267 The Court
concluded that the objective impartiality of the judge had been violated. The Court looked
to the threshold under Danish law for a decision on detention and interpreted the required
‘particularly confirmed suspicion’ as a ‘very high degree of clarity with regard to the
question of guilt’.268 The threshold was considered close to the threshold for conviction at
trial.
Pursuant to the case law of the ECtHR, the investigating judge will thus normally be
prevented from sitting on the bench of the same case. In this regard, it should be noted that
the Office of the Co-investigating Judges has been established as a separate office within
the ECCC.269 More problematic is Section 10 of the TRCP, according to which, participation
as an investigating judge of the SPSC does not disqualify the judge from participating in the
same matter as a trial judge. The investigating judge holds some important powers and
responsibilies during the investigation. Notably, the investigating judge authorizes certain
investigative measures and decides on the deprivation of liberty.270 The extent and nature
of these powers and responsibilities may imply that the judge’s further involvement in the
case raises ‘legitimate doubt’ as to his or her impartiality.
ii. Comparative criminal procedure
a. Structure of the investigation phase
The structure of the investigation phase is substantially different in common law and civil
law criminal justice systems. This may detract from the evaluative value of comparative
criminal law for this subsection. The civil law style of proceedings is characterized by an
extensive pre-trial investigation. In general, the inquisitorial ideal-type investigation is
structured as an official inquest, involving detached and impartial investigators, behaving
as ‘organs of justice’.271 Underlying the involvement of state officials in the preliminary
investigation in ‘policy-implementing’ inquisitorial systems lies the idea that optimal
investigative strategies require an independent viewpoint, instead of a narrow partisan
perspective.272 This is based on the belief that the ‘objective truth’ can only be established
where the investigation is assigned to non-partisan investigators.273 Where parties may (p.
206) have reasons to conceal the truth, this investigation is best left in the hands of state
officials.274 Consequently, the role of the defence is traditionally limited.275 Rather than
expecting the defence to organize a fully-fledged investigation, the role of the defence
during the investigation is restricted to safeguarding the interests of the suspect or accused
person and checking whether state officials stick to the rules. The defence can request the
prosecutor or investigating judge to conduct a particular investigative action.276 Whereas
the defendant represents only his or her personal interest, the prosecutor represents the
public interest.277 The inquisitorial system views the defendant as ‘a target with a personal
stake in how the case is decided’.278
The prosecutor fulfils a leading role in the investigation and prosecution of the crimes.279
Some criminal justice systems reserve the role of the investigating magistrate to the most
serious crimes. However, where the investigating magistrate takes the lead over the
investigation, he or she often does not participate from the very beginning of the
investigation and the judicial investigation is normally preceded by a preliminary
investigation conducted by the prosecutor.280 The judicial police will act under the authority
of the prosecutor or the investigating judge.281
Traits of this model can most clearly be discerned in the ECCC’s pre-trial investigation
scheme. As an example, the leading and ‘truth-finding’ function allotted to the co-
investigating judges, the limited role reserved during investigations for the defence,
coupled with the possibility for the parties to request the undertaking of specific
investigative actions, may be mentioned.282
In adversarial criminal justice systems, where proceedings are shaped as a party-controlled
contest, the parties will be required to gather their own evidence.283 Where these systems
adopt the view that there is no ‘objective truth’, the regulation of the pre-trial process is
traditionally limited.284 Nonetheless, the regulation of the pre-trial phase is (p. 207)
increasing, both to restrict the police’s capacity to construct its case and to assist the
suspects and accused in building theirs.285 The adversarial ‘dispute model’ encompasses a
partisan prosecutor, who investigates a prosecution case, and a defence having
procedurally equal investigative tools in order to enable it to autonomously investigate its
case.286
In common law countries, the police traditionally bear the responsibility for the conduct of
investigations. Taking England and Wales as an example, it emerges that the prosecutor
(the Crown Prosecution Service) only plays a limited role during the investigation phase.287
While prosecutors have no investigative powers and in general do not have authority over
the police investigations, they may suggest or advise certain lines of investigation.288 While
the defence holds the power to conduct its own investigations, corresponding formal
powers are lacking and public funding is limited.289
In the accusatorial system, judicial intervention only takes place at the pre-trial stage when
the interests of the person cannot be protected in another way.290 In particular, the judge
intervenes when coercive measures are needed in the course of the investigation.291 No
judicial control is exercised over the quality of the evidence gathered at the pre-trial
stage.292
Some of these ‘characteristics’ can be traced in the international(ized) tribunals discussed.
For example, at the ad hoc Tribunals and the SCSL, the parties are expected to conduct
their own pre-trial investigations. The rules conceive of the parties as competitors,
responsible for their respective investigations, rather than organs assisting the court in its
truth-finding mission.293
However, it should be noted that most domestic systems are influenced by different ideas
and rarely expose a pure inquisitorial or adversarial model; they are more or less of a
hybrid nature. Some systems are clearly of mixed origins. For example, in Nordic criminal
procedures the investigation is primarily inquisitorial but aimed towards a trial that is
adversarial in nature. In Denmark, Norway, and Sweden294 the prosecutor leads the
investigation, assisted by the police, under a duty of objectivity, while in Finland,295 the (p.
208) police service is in charge of the investigation but still acting objectively. The diversity
among domestic systems makes comparative conclusions even more difficult.
b. Role of the prosecutor
The different structure of the pre-trial investigation unavoidably influences the role of the
different actors involved in the investigation. In civil law criminal justice systems, the
prosecutor is required to investigate and examine incriminating and exonerating facts and
circumstances equally.296 Whether exonerating facts and circumstances are investigated
with the same diligence in practice has been questioned.297 In civil law criminal justice
systems, the prosecutor is traditionally a (quasi-)judicial officer, and therefore enjoys the
same independence as judges. Far from being a partisan actor, the prosecutor is expected
to perform his or her functions in an objective manner. Where an investigative judge is
involved in the investigation, he or she is equally required to investigate all evidence à
charge and à décharge.298 Entrusting such a role to the prosecutor or investigating
magistrate is sometimes criticized where it substantially weakens the position of the
defence by preventing or limiting the possibilities of defence investigations.299
Where, in adversarial criminal justice systems, parties are expected to conduct their own
investigation, prior to the partisan contest at trial, a duty incumbent on the prosecutor to
look for exculpatory evidence is more questionable. Investigations are guided by self-
interest rather than the public interest.300 Moreover, and as previously noted, in common
law criminal justice systems the investigations are normally in the hands of the police, and
the prosecutor traditionally only assumes responsibility once the investigation is
finished.301 However, the duty of objectivity becomes important where prosecutors (e.g. in
the US) gradually assume a greater investigative role.302 Nonetheless, the ethical duties
incumbent on the US prosecutor in this regard reveal themselves as vague. True, the
prosecutor has traditionally been held to have an obligation ‘to seek justice rather than (p.
209) victory’.303 Further, ethical rules often oblige the prosecutor to adhere to values of
objectiveness or impartiality in the conduct of investigations. These rules, including the
ABA Model Rules of Professional Conduct or the ABA Standards for Criminal Justice, have
held that the prosecutor fulfils the role of a ‘minister of justice’.304 Nonetheless, in line with
the practice in international criminal law, it seems that the exact value of such (lofty)
statements remains ambiguous.305
Where the investigation is conducted by the police, it may be relevant to assess whether a
duty to search equally for incriminating and exonerating evidence is incumbent on police
officers. As will be explained, the existence of such duty for police officers is uncertain.306
In England and Wales, the Code of Practice under the Criminal Procedure and
Investigations Act 1996 provides that: ‘In conducting an investigation, the investigator
should pursue all reasonable lines of enquiry, whether these point towards or away from the
suspect.’307 This provision has been interpreted as putting a positive duty on the police to
actively search for exonerating evidence.308
Several international (soft law) documents require prosecutors to act objectively while
performing their investigative role. According to the UN Guidelines on the Role of
Prosecutors (‘Havana Guidelines’), prosecutors are expected to ‘act with objectivity’, should
‘take proper account of the position of the suspect and the victim’ and ‘pay attention to all
relevant circumstances, irrespective of whether they are to the advantage or disadvantage
of the suspect’.309 In this context, the more detailed ‘Standards of Professional
Responsibility and Statement of the Essential Duties and Rights of Prosecutors’, which were
adopted by the International Association of Prosecutors (IAP), should be mentioned. The
Standards require prosecutors to carry out their functions impartially and to act with (p.
210) objectivity where they participate in the investigation.310 The Standards also require
the prosecutor to ‘have regard to all relevant circumstances, irrespective of whether they
are to the advantage or disadvantage of the suspect’ and ‘to ensure that all necessary and
reasonable enquiries are made and the result disclosed, whether that points towards the
guilt or the innocence of the accused’.311
On a regional level, Recommendation (2000)19 of the Council of Europe on ‘the Role of
Public Prosecution in the Criminal Justice System’ may be mentioned. It requires that public
prosecutors carry out their functions ‘fairly, impartially and objectively’.312
This short analysis does not allow us to draw any conclusion. Neither a principle regarding
the structure of the investigation, nor a requirement on the prosecutor to search for the
material truth and to investigate incriminating and exonerating circumstances equally,
could be discerned.
iii. Goals of international criminal justice
The most important goals pursued by international criminal justice (retribution and
deterrence) are shared by all national criminal justice systems and do not allow us to
choose between the common law or civil law system.313 Nonetheless, it has been argued by
some that the particular goals pursued by international criminal justice may be better
served by an investigation shaped as an official inquest. Where providing a historical record
is one of the proffered goals of international criminal justice, it may be argued that an
investigation performed by a prosecutor or investigating judge, determined to establish a
‘(pre-trial) material truth’, would better serve such a goal.314 As argued by Damaška: ‘A
legal process aimed at maximizing the goal of dispute resolution [as accusatorial systems
do] cannot simultaneously aspire to maximize accurate truth-finding.’315 Consequently, in
order to maximize accurate fact-finding, and thus to achieve at least some of the particular
goals of international criminal justice, an investigation shaped as an official inquest may be
preferable. This presupposes that the prosecutor or investigating judge in practice pays
equal attention to assessing exonerating and incriminating facts and circumstances (or to
the one and objective truth). Nonetheless, some have expressed scepticism about the
effective realization of such non-partisan attitudes.316 Consequently, where some goals of
international criminal justice may be better served by a pre-trial investigation shaped as an
official inquest, these goals do not provide us with definite answers regarding the form this
official involvement at the pre-trial phase should take. No conclusions can be drawn
regarding the structure of the investigation.
(p. 211) iv. Synthesis
International human rights law does not have much to say about the delineation and scope
of the investigation phase. However, it requires a strict separation of the functions of
prosecuting and adjudicating. Unsurprisingly, in this respect, the law and practice of the
international criminal tribunals was found to be mostly in compliance with international
human rights law. Only Section 10 of the TRCP, according to which, participation as an
investigating judge of the SPSC does not disqualify the judge from participating in the same
matter as a trial judge was found to be problematic from a human rights perspective.
Human rights law does not offer further guidance regarding the structure of the pre-trial
investigation and the respective roles of the actors involved in this investigation. Further,
common law and civil law criminal justice systems provide distinct answers concerning how
the investigation should be structured and the nature of the proper roles of the actors
involved in the investigations. Consequently, the normative evaluation undertaken in the
light of comparative criminal procedure did not allow us to draw any conclusions.
Lastly, it was found that although some of the particular goals of international criminal
justice may be better served by an investigation structured as an official inquest, no definite
answer could given on how the investigation should be structured.
C. General Rules and Principles
i. Principles
The prosecutor shall conduct investigations independently and shall not seek or receive
instructions from any external source.
[Art. 16(2) ICTY Statute; Art. 15(2) ICTR Statute; Art. 15(1) SCSL Statute; Art. 42(1)
and (2) ICC Statute; Section 4.2. UNTAET Regulation 2000/16; Art. 19(2) ECCC
Law; Art. 6 ECCC Agreement; Art. 11(2) STL Statute]
A duty of due diligence in the conduct of investigations is incumbent on the parties

conducting an investigation.
[Rule 119(A) ICTY RPE; Rule 120(A) ICTR RPE; ICTY case law; ICTR case law; Art.
84(1)(a) ICC Statute; Section 41.2 TRCP; Rule 112(1)(a) ECCC IR; Rules 186(C) and
190(A) STL RPE]
ii. General rules

The prosecutor shall conduct investigations.
[Art. 16(1) ICTY Statute; Art. 15(1) ICTR and SCSL Statute; Art. 42(1) ICC Statute;
Section 7.1 TRCP; Art. 11(1) STL Statute]
The defence may conduct its own investigations.
[Art. 16(e) IMT Charter; Art. 9(d), (e) IMTFE Charter; Art. 21(4)(b), (e) ICTY
Statute; Art. 20(4)(b) and (e) ICTR Statute; Art. 17(4)(b), (e) SCSL Statute; Art.
67(1)(b), (e) ICC Statute; ECCC case law]
(p. 212) The prosecutor may continue his investigations after the confirmation of charges.
[Rule 2 ICTY, ICTR, and SCSL RPE; ICC case law; Rule 2 STL RPE; Section 1(n)
TRCP]
D. Recommendations
In the light of the complexity of the cases and the difficulties encountered by defendants in
conducting investigations, it is recommended that the obligation on the prosecutor to
actively search for and examine incriminating and exonerating facts and evidence equally
becomes a principle. To a certain extent, it may reduce the problems of existing inequalities
between the parties concerning the investigation. Moreover, it may help to remedy the
imbalance between the parties due to the prosecutor’s extensive ‘inquisitorial’ investigative
powers which are available via state cooperation, including compulsory powers related to
arrest and detention or search and seizure.
This change of the investigative role of the prosecutor should be coupled with a clearer
formulation of the defence’s investigative evidence-gathering powers and the obligations of
states and other actors to provide judicial assistance to defence teams. At present, such
powers derive from the equality of arms principle, and from the rights of the accused,
including the general right of the accused to have adequate time and facilities for the
preparation of his or her defence. To this end, the ability of the defence to conduct
investigative activities on a state’s territory and to request international cooperation and
judicial assistance should not be limited to seeking requests through the Court on its behalf,
but should be expressly stipulated.
To promote the expeditousness of proceedings and to prevent any undue prejudice to the
defence, it is important that the rule allowing the prosecutor to continue its investigations
after the confirmation of charges is understood primarily in the light of the duty of due
diligence incumbent on the parties. Where continued investigations necessarily interfere
with defence preparations, they should remain the exception and should not be a means to
rectify poor investigations.
3. Collection Of Evidence
3.1 Non-Coercive Investigative Acts
3.1.1 Interrogation of Suspects and Accused Persons 214
A. LAW AND PRACTICE OF INTERNATIONAL CRIMINAL TRIBUNALS 214
i. IMT AND IMTFE 214

ii. ICTY, ICTR, AND SCSL 214
iii. ICC 232
iv. SPSC 237
v. ECCC 238
vi. STL 240
vii. SYNTHESIS 242
B. EVALUATION 244
i. HUMAN RIGHTS LAW 244

ii. COMPARATIVE CRIMINAL PROCEDURE 249
iii. GOALS OF INTERNATIONAL CRIMINAL JUSTICE 251
iv. SYNTHESIS 252
C. GENERAL RULES AND PRINCIPLES OF INTERNATIONAL CRIMINAL PROCEDURE 253
i. PRINCIPLES 253

ii. GENERAL RULES 254
D. RECOMMENDATIONs 254
3.1.2 Questioning of Witnesses 255

iii. ICC 263
iv. SPSC 269
v. ECCC 270
vi. STL 272
vii. SYNTHESIS 275
B. EVALUATION 276
i. HUMAN RIGHTS 276

iv. SYNTHESIS 280
C. GENERAL RULES AND PRINCIPLES 281
i. PRINCIPLES 281

D. RECOMMENDATIONS 281
(p. 213) At the outset, it should be noted that given the broad and potentially unrestricted
powers to collect and examine evidence at the disposal of the prosecutor of at least some of
the international criminal tribunals, it is almost impossible to provide an exhaustive
overview of all non-coercive and non-custodial coercive investigative measures. Therefore, a
selection is made based on the criterion of the actual relevance of certain investigative
measures according to the practice of the international criminal tribunals.
A key measure in the fact-gathering process is the interrogation or questioning of persons.
In the context of international criminal law, where other forms of contemporaneous
evidence may often be lacking, the interrogation of persons may occupy an even more
important place. Statements obtained from the suspect or accused can be particularly
valuable for the prosecutor. Statements made by the suspect, especially when they are
confessional in nature, facilitate the burden on the prosecution to establish, for example, a
prima facie case against a suspect.317 The fact that the questioning of the suspect or
accused is ‘a key pressure point in criminal procedure’318 and the importance for the
prosecution of the resulting statements necessitate the existence of sufficient procedural
guarantees. They prevent all forms of undue pressure that render the statement
involuntary.
(p. 214) 3.1.1 Interrogation of Suspects and Accused Persons
i. IMT and IMTFE
The Charters and practice of both international military tribunals did not pay attention to
the rights of suspects and accused persons during interrogation or in the conduct of
investigations more generally. No specific procedural safeguards applied to the
investigation phase. As is well documented, the IMT Charter and Rules of Procedure only
included some limited safeguards for defendants.319 No similar safeguards were provided
for in the IMTFE Charter.320 One author, when describing the conduct of interrogations
during investigations before the IMTFE, argues that the interrogation of suspects was
considered ‘a purely executive process’.321 The process occurred in a procedural vacuum.
No right to remain silent or to the assistance of counsel during questioning applied.322
Defendants were normally interrogated by the prosecutor or by the police ‘at length’,
without the assistance of counsel.323
The prosecutor was empowered to question any suspect or accused.324 The statements
resulting from the questioning were admissible at trial, without any prior warning to the
defendant that they might be admitted.325 The IMTFE Charter explicitly stated so.326 Before
the IMTFE, the defendant Matsuoka had objected to the use of the statement of an
interrogation as he had been assured that it would not be used in evidence. Hence, the
admissions were made following inducements by the prosecutor. This objection was
rejected by the majority.327 Generally speaking, the statements from prior interrogations of
the accused were crucial to many convictions.328
a. Applicable procedural regime
a.1. Status of the interviewee
The procedural rules that regulate the interrogation or questioning of persons depend on
the status of the person questioned. A distinction will be drawn between the questioning of
(p. 215) witnesses, suspects, and accused persons.329 Important for the determination of
the applicable procedural regime is the distinction between suspects and witnesses.
Whereas detailed provisions regulate the rights of suspects during interrogation and the
conduct of the interrogation, not many provisions regulate the questioning of witnesses by
the prosecution or by the defence.330
The situation becomes complicated when a witness later becomes a suspect or an accused.
ICTY Trial Chamber I considered this situation in Halilović.331 The prosecution wanted to
tender from the bar table a statement by Halilović, given some five years before the
indictment in his case was confirmed.332 At that time, the prosecution did not consider him
a suspect.333 Nevertheless, the prosecution anticipated that Halilović could become a
suspect and, on several occasions, informed him of his right to counsel and his right to
remain silent. It may then be asked what safeguards should apply for a statement by a
witness, who later becomes a suspect and accused, in order to make it admissible as
evidence.334 Should statements of a person who now qualifies as an accused, taken at a
time when that person was still considered a witness, be taken in accordance with
procedural safeguards for suspects and accused persons? In other words, do these
procedural safeguards apply retroactively? The Trial Chamber in Halilović stated that:
The fundamental difference between an accused and a witness may result in an

inadmissibility of a statement of an accused taken at the time when he was still
considered a witness, insofar as the statement was not taken in accordance with
Rule 42, 43 and 63 of the Rules … . [I]n order to protect the right of the Accused to
a fair trial, in accordance with Article 21 of the Statute, it should be taken into
account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully
respected when deciding on the admission of any former statement of an accused
irrespective of the status of the accused at the time of taking the statement.335
The Trial Chamber considered that the statement was a mere summary of seven days of
interview, taken over a period of four months.336 Because there was no recording pursuant
to Rule 43 of the ICTY RPE, the Chamber could not verify the accuracy of the statement.
The Trial Chamber further argued that Halilović had not chosen to waive his right to remain
silent at trial (the only way he could challenge the contents of the statement if admitted into
evidence).337 Hence, the Trial Chamber did not admit the statement pursuant to Rule 89(D)
of the ICTY RPE. Nevertheless, the Chamber did not seem to consider that the violation of
Rule 43 should lead to the automatic exclusion of the statement of an accused.338
(p. 216) The issue was raised again on appeal. The Appeals Chamber determined that the
statement had correctly been excluded by the Trial Chamber, but underlined that the
question of whether the statement would be inadmissible due to a retroactive reading of
Rule 43 was not a decisive consideration in the Trial Chamber’s reasoning.339 The Appeals
Chamber excluded the statement pursuant to Rule 89(D), because it did not consider the
statement reliable enough; admission would have threatened the fairness of the
proceedings.340 Consequently, the Appeals Chamber did not address the question of
whether the procedural safeguards for the interrogation of suspects or accused persons
should be upheld when questioning a witness who later becomes a suspect or accused.
The ICTY may have missed an opportunity to clarify this particular issue. Interestingly, two
separate Appeals Chamber opinions, by Judge Schomburg and Judge Meron, deal with this
question.341 Leaving the issue of admissibility of prior statements aside, it is important to
establish whether the procedural safeguards for questioning should be retroactively applied
were a witness becomes a suspect or an accused. A positive answer to this question would
entail that the prosecutor should always apply the procedural safeguards in Rule 42 and 43
if there is a chance that this witness may become a suspect or an accused person. Judge
Meron supported such retroactive application.342 The underlying purposes of the
safeguards are voluntariness and reliability. Hence, they imply a value judgement that only
interviews which respect these safeguards can later be admitted into evidence. Such a view
offers a better protection of the rights of the accused person. On the other hand, it puts a
heavy burden on the prosecution by requiring recording from the moment there is a
possibility that the witness may become a suspect.
Judge Schomburg argued that the procedural safeguards apply as soon as the witness
becomes a suspect. The Chamber should ex post assess whether the person was a suspect
or accused at the moment the statement was taken. In other words, the Chamber should
consider whether the objective requirements for a person to become a suspect or an
accused are fulfilled. Schomburg’s opinion does not require the prosecutor to make audio
recordings of all statements by witnesses that may become a suspect.343 This is in line with
the case law of the ICTR. In Zigiranyirazo, the ICTR Trial Chamber ex post examined
whether the accused, who was treated as a witness during an interview by the prosecution,
objectively qualified as a suspect at the relevant time.344
The question remains as to the consequence and remedy for the non-retroactive application
of these procedural safeguards. While the decision of the Trial Chamber in Halilović is
ambiguous on this point, the Appeals Chamber still assessed the reliability of the
statements and did not uphold an automatic exclusion of the evidence. As will be illustrated
later, the consequence of a violation of the procedural safeguards for the questioning of
suspects and accused person is the exclusion of such statements.345 Consequently, the non-
automatic exclusion of the statement in the Halilović case can be (p. 217) interpreted as a
further indication that no obligation exists for the prosecutor to retroactively apply the
procedural safeguards.346
The definition of a suspect is objective in nature.347 According to the ICTY, ICTR, and SCSL
RPEs, a suspect is ‘a person concerning whom the Prosecutor possesses reliable
information which tends to show that the person may have committed a crime over which
the Court has jurisdiction’.348 It is not left to the discretion of the prosecution whether the
person should be considered a suspect or not. The relevant moment to consider the status
of the person concerned is the moment when the statement is taken. However, it has been
argued in the literature that the definition is subjective in nature.349 Under a subjective
approach, the determination of the status of the suspect falls within the discretion of the
prosecutor. Sufficient protection against the arbitrary withholding of procedural rights from
the person questioned should then be ensured by allowing the Trial Chamber to
retroactively apply the procedural rights of Rules 42 and 43. This view cannot be condoned.
First, the definitions of ‘suspects’ and ‘accused persons’ are objective in nature in that the
subjective belief of the prosecutor is irrelevant.350 Secondly, the procedural rights embody
basic and minimum rights of persons during investigations. These should always be
respected when a suspect is interrogated and should not be made dependent on a possible
later determination by a Chamber on the admissibility of the results of such interrogation. A
further note of caution is warranted here. While an objective approach should be relied
upon, it is not argued that such approach entirely removes prosecutorial discretion. On the
contrary, considerable discretion follows from the broad definition of suspects.351 The
example of Sesay, cited in the following paragraphs, exemplifies the inherent risks of
discretion abuse and the deliberate withholding of rights from persons questioned.352
Another important distinction required in order to determine the applicable regime is the
difference between accused persons and mere suspects in the investigation, since different
procedural rules apply. The definition of an accused is straightforward: from the moment
one or more counts in an indictment have been confirmed against the person, that person
becomes an accused.353 This distinction is relevant, as only the accused person will enjoy
the whole gamut of rights under Article 21 ICTY, Article 20 ICTR Statute, or Article 17
SCSL Statute.
Confusion may be created on purpose with respect to the exact status of a person. In the
Sesay case, the interrogators referred to the accused person as a suspect. The SCSL Trial
(p. 218) Chamber suggested that the investigators did so on purpose, in order to confuse
the accused and to ensure cooperation.354 According to the accessible case law, such
behaviour by prosecution investigators is exceptional. However, the incident underlines the
significance of a clear understanding of and respect for the different statuses of suspects
and accused persons and the applicable procedural regimes.
a.2. Status of the interviewer
The status of the interviewer, as well as the interviewee, may vary. A first possibility is that
the questioning is conducted by national law enforcement officials only. These national
enforcement officials may act upon a request by the tribunal or not. Secondly, the
questioning can be conducted by the prosecution staff together with national enforcement
officials (or other non-tribunal investigators). Thirdly, the questioning can be conducted by
the prosecutor or the prosecution investigators without other enforcement officials being
present. The choice hinges on different factors, including the location of the interviewee
and the applicable legislation of the state where the questioning is taking place.
Neither the Statute nor the RPEs of the ad hoc Tribunals or the SCSL provide any guidance
as to the question of whether the procedural safeguards for the interrogation of suspects
and accused apply only to interrogation by the prosecution or whether the safeguards
should also be upheld when the questioning is conducted by national law enforcement
officials.
Already in Delalić et al., the ICTY Trial Chamber had removed any doubt as to the
applicability of international criminal procedure during questioning by national law
enforcement officials. The Trial Chamber rejected the assertion by the prosecution that a
distinction should be drawn between acts performed by tribunal investigators and acts by
non-tribunal investigators.355 The Chamber confirmed that the rules on the questioning of
suspects, which are laid down in the Statute and RPE, apply equally in both scenarios. This
is important ‘as it protects the uniformity of the criminal procedure, already at an early
stage of proceedings’.356 It confirms the procedural guarantees during interrogations, as
laid down in Rule 42 and 63 of the ICTY, ICTR, and SCSL RPEs as essential or minimum
guarantees which should be respected in all cases.357 Legal assistance by states or other
international organizations should therefore be provided in accordance with these
procedural safeguards; to do otherwise risking the exclusion of the evidence.
However, later case law has restricted the applicability of the rules of international criminal
procedure to interrogations by non-tribunal investigators. In Mrkšić et al., the Trial
Chamber differentiated between interrogations conducted by the prosecutor, prosecution
staff, and persons acting on the prosecutor’s directions,358 on the one hand, and
interrogations conducted by persons or authorities who had no relevant connection with the
ICTY prosecutor, on the other.359 First, the Trial Chamber distinguished the latter (p. 219)
situation from the context in which the statements were taken in the Delalić case. There,
the accused (Mucić) was interrogated by the Austrian authorities ‘in respect of proceedings
which had been instituted at the instigation of the ICTY prosecutor to secure the transfer of
an accused to the Tribunal’.360 Therefore, there was a relevant connection with the ICTY
prosecutor. Secondly, the Trial Chamber distinguished the instant situation from the
situation where the questioning was conducted by Tribunal investigators.361 While the Trial
Chamber observed that in casu the statements were not obtained in accordance with the
relevant provisions of the Statute and RPE on the questioning of suspects and accused
(although Serbian laws were respected), it allowed the use of the resulting statements at
trial.362 Importantly, however, the Trial Chamber did not allow the resulting statements as
admissible evidence; it only approved their use at trial for the specific and limited purpose
of cross-examining the accused person who gave the statement, and in order to test the
credibility of the evidence that was given by that accused at trial.363 The Chamber clearly
stated that it would not have allowed the admission of these statements as substantial
evidence.364
In short, this decision draws a distinction between the questioning by the prosecutor or
prosecution staff or persons or authorities mandated by the prosecution, and authorities
without any relevant connection with the prosecutor. In the latter case, there are no rules
on the conduct of the questioning of suspects or accused persons under international
criminal procedural law that must be respected.365 Only national law should be respected.
However, the consequence of the violation of the procedural safeguards applicable during
the questioning of suspects or accused persons may be the non-admission of the evidence at
trial. Exceptionally, statements of the questioning can be used during cross-examination.
In the end, both decisions favour respect for the procedural safeguards under international
criminal procedural law during interrogation by states or other international organizations,
whether or not at the request of the Tribunal. Otherwise the result might be the non-
admission of the statements at trial.
If the procedural safeguards for the interrogation of suspects and accused persons should
be respected when the questioning is not executed by tribunal investigators, the next
question is whether the modalities for the conduct of such interrogation should be exactly
the same as the modalities laid down in international criminal procedure (Rule 43 of the
ICTY, ICTR, and SCSL RPEs).366 Judge Schomburg underscored that the rationale of Rule
43 is to translate the procedural guarantees for suspects and accused persons during
questioning ‘into reality using contemporary technical standards and at the same time to
assure the precision and reliability of a suspect’s statement in the language he used when
answering questions put to him by an interrogator’.367 Two judges of the ICTY Appeals
Chamber have argued that Rule 43 reflects a substantive judgment that (p. 220) unrecorded
statements are, by definition, insufficiently reliable and that such unrecorded statements
should always be excluded.368 However, such view is not undisputed. It follows from
Halilović that in the absence of a recording of the interview in accordance with Rule 43, the
prosecutor is still able to prove its reliability, which will be assessed by the Chamber in
accordance with Rule 89(C) and (D) of the RPE.369 This argument can be accepted. While
Rule 43 provides a mechanism to ensure the reliability of the statement of an accused or a
suspect, such reliability can also be proven by other means.370 Judge Shahabuddeen
referred in this regard to Rule 92 of the RPE on confessions. According to this Rule, the
confession will ‘be presumed to have been free and voluntary’, if the requirements of Rule
63 (which provides for audio or video recording in accordance with Rule 43) are strictly
complied with, ‘unless the contrary is proven’.371 Consequently, even if the recording
procedure of Rule 43 is not respected, the confession can be admitted into evidence.
Although the consequence of an interrogation in violation of the recording procedure of
Rule 43 is not the automatic bar to the admission of such a statement, ensuring that a
recording of the interview is made helps to establish the reliability and voluntary nature of
the statement. Consequently, the inclusion of a reference to this recording procedure
should be made in requests for legal assistance. Given the broad cooperation obligations of
states vis-à-vis the ad hoc Tribunals, they would be required to honour such requests.
b. Power and procedural safeguards
b.1. The power of the prosecutor to question suspects and accused persons
The Statutes of the ad hoc Tribunals and the SCSL include the competence of the
prosecutor to question suspects, victims, and witnesses in the conduct of investigations.372
The prosecutor equally holds the power to question accused persons.373
The RPEs of the ad hoc Tribunals and the SCSL provide for a detailed regulatory scheme for
the conduct of the interrogation of suspects and accused persons.374 Several rights of the
suspect during interrogation are outlined in the RPEs: (1) the right to be assisted by
counsel, (2) the right to the free assistance of an interpreter, and (3) the right to remain
silent and to be cautioned. The suspect should be informed about these rights prior to
questioning, in a language the suspect speaks and understands.375 These rights reflect
minimum rights that should be respected in all instances. The violation of one of these
fundamental rights leads to the exclusion of such evidence at trial. In addition to these
rights, accused persons enjoy all rights laid down in Article 21 of the ICTY Statute, Article
20 of the ICTR Statute, and Article 17 of the SCSL Statute.
Most litigation before the ad hoc Tribunals concerns the waiver of the right to counsel as
well as the voluntary nature of the statement given. While the procedural safeguards seem
(p. 221) to be respected in most of the interrogations, it will be exaplained how the case law
provides us with examples of transgressions where the questioning results in inducements
or threats.376
b.2. Right to assistance by counsel during interrogation
It follows from Article 18(3) of the ICTY Statute and Article 17(3) of the ICTR Statute, as
well as from Rules 42(A)(i) and 42(B) of the ICTY, ICTR, and SCSL RPEs, that every suspect
has a right to the assistance of counsel during interrogation.377 While this right to counsel
can be waived, such waiver should be voluntarily and can be revoked by the suspect at any
time.378 A similar right to assistance by counsel during questioning is guaranteed for
accused persons.379 An ICTR Trial Chamber has underlined the importance of the right to
counsel by stressing that it ‘is rooted in the concern that an individual, when detained by
officials for interrogation is often fearful, ignorant and vulnerable; that fear and ignorance
can lead to false confessions by the innocent; and that vulnerability can lead to abuse of the
innocent and guilty alike, particularly when a suspect is held incommunicado and in
isolation’.380 This guarantee ensures the proper conduct of the questioning and that the
questioned person is aware of his or her rights.381 Rule 42, which outlines the right to
counsel for suspects, reflects (and is an adaptation mutatis mutandis of) Article 6(3)(c) of
the ECHR and Article 14(3)(d) of the ICCPR.382
Remarkably, it follows from the ICTY RPE that counsel can be assigned to a suspect
‘whenever the interests of justice so demand’.383 Does this Rule qualify the right to
assistance by counsel during interrogations, so that no assistance by counsel can be
provided if the interests of justice do not require it? Such reading seems at odds with
Article 18(3) of the ICTY Statute, which does not include a qualification to the right of
assistance by counsel.384 Therefore, this reading would violate the hierarchy of norms.
The suspect or accused should first be informed about the existence of the right to counsel
during interrogation in order to be in a position to exercise or waive this right (caution).385
The suspect should be correctly informed prior to the questioning, in a language the
suspect understands.386 The RPEs of the ICTR and SCSL require the person to be informed
of this right in a language he or she speaks and understands.387 Having this right read out
to the person is all that is required. No obligation exists for the prosecutor to (p. 222)
explain in greater depth the consequences of the exercise or waiver of the right.388 There is
also no requirement for the prosecutor to clarify to the person his or her status as a suspect
(or accused).389
However, the suspect or accused should be informed about the exact nature of the right to
legal assistance during questioning, as otherwise he or she will not be in an informed
position to waive the right. In the Delalić case, the Trial Chamber rejected the argument
that the cultural background of the suspect prevented him from understanding and
appreciating the scope and meaning of his right to counsel when said right was read out.
The Trial Chamber stated that the suspect had the possibility to have his rights translated
into a language he or she understood. It stated that ‘[i]f we were to accept the cultural
argument, it would be tantamount to every person interpreting the rights read to him
subject to his personal or contemporary cultural environment’ and that ‘[t]he provision
should be objectively construed’.390 There is no room for a ‘subjective standard of informed
consent’.391
The right to counsel can be waived if such waiver is made ‘voluntarily’. It follows from the
case law of the Tribunals that the burden of proof of voluntariness and absence of
oppressive conduct is on the prosecution.392 The standard of proof was defined as needing
to be established ‘convincingly and beyond reasonable doubt’.393 If the person already has
the status of ‘accused’, the rules seem more stringent and not only require the waiver to be
‘voluntarily’ but also to be ‘express’.394 However, the requirement of an ‘express’ waiver
was also read into Rule 42 by the ad hoc Tribunals. The ICTR Trial Chamber in Bagosora et
al. held that the waiver must be ‘express and unequivocal’ and clearly relate to the
interview in which the statement is taken.395 The ad hoc Tribunals derived this requirement
from human rights law396 and common law case law.397 The term ‘equivocal’ has been
interpreted by a Trial Chamber of the ICTY as meaning ‘unclear in meaning or intention;
ambiguous’.398 The term ‘voluntary’ has been interpreted as including the requirements of
being ‘informed’ and ‘knowing and intelligent’.399 The information required for a suspect or
accused to make an informed decision depends on the stage of proceedings.400 The
requirement of a waiver to be knowing and intelligent implies that the accused is able ‘to
(p. 223) make a rational appreciation of the effects of proceeding without a lawyer’.401 A
suspect may be taken to comprehend what a reasonable person would understand but when
there are indications that a person is confused, steps must be taken to ensure that the
suspect does actually understand the nature of his or her rights.402 According to Judge Itoe
in the Sesay case, it is not sufficient to ‘rattle through the textual reading of the waiver’, a
‘comprehensive explanation of its contents and implications’ is required.403 In the Bagosora
et al. case, ICTR Trial Chamber I found that the prosecution had not discharged its burden
of showing that the accused Kabiligi had voluntarily waived his right to counsel, because
the waiver by the accused was based on a misconception that his right to counsel was
dependent on him being informed of the case against him.404 This misconception was not
corrected by the investigators.405 Consequently, the Trial Chamber concluded that there
was a violation of the right to counsel and the interview was excluded from the evidence.
No waiver of the right to counsel can be voluntary, unless the suspect knows of the right to
which he is entitled.406 To be so informed, ‘the suspect must be informed that the right
includes the right to the prompt assistance of counsel, prior to and during any questioning’.
Further: ‘Any implication that the right is conditional, or that the presence of counsel may
be delayed until after the questioning, renders any waiver defective.’407 Hence, where the
suspect expressed a desire to be assisted by two attorneys that had assisted him before and
was informed that they could assist only if he had sufficient means to pay them, failing to
inform him that a duty counsel was appointed to represent him and was available during
questioning, rendered any ‘waiver’ involuntary.408
In case the waiver is revoked by the suspect or accused person, the interrogation should
immediately cease and be resumed only when the suspect or accused person has obtained
or has been assigned counsel.409
It emerges from the jurisprudence of the ad hoc Tribunals that the right to counsel during
interrogation also includes the right to effective (adequate) assistance by counsel. In
Popović et al., the defence for Borovčanin argued that he was not adequately represented
during the interview as his counsel stood mute during the majority of the interviews. The
Trial Chamber did not agree that this, in itself, suggested that the representation was in any
way defective.410 However, if substantive evidence is adduced which puts the actual
competence to adequately represent the interests of the accused or suspect into question,
the Trial Chamber should examine this.411 In the Halilović case, the Appeals Chamber found
that the Trial Chamber had not given sufficient weight to evidence adduced that the
representation was inadequate. In casu, there was an Order by the Registry which explicitly
(p. 224) stated that the withdrawal of the counsel of Baliljagić was based on ‘available
information which seems to put into doubt the quality of the representation of the accused’
and added that ‘it does not appear that the accused is adequately represented’.412
In the Blagojević and Jokić case, Jokić and Obrenović (a former co-accused who pleaded
guilty) had indicated the same counsel (Simić) as the counsel of their choice.413 The defence
argued that a conflict of interests existed and that the transcripts of the interviews of Jokić,
in which Simić provided assistance, should not be admitted into evidence.414 It further
argued that the prosecution should have informed Mr Jokić of ‘an apparent conflict of
interest’ and about ‘the issue of waiver of conflict-free counsel’.415 The Trial Chamber held
that: ‘As a matter of principle … once a suspect or an accused waives his or her right to
remain silent, the result of any questioning by members of the Prosecution … can be used in
proceedings involving that suspect or accused.’416 The Trial Chamber rejected the
argumentation by the defence and decided that the prosecution could not question or
interfere with the choice of counsel made by Jokić.417
b.3. Right to remain silent
The right for suspects418 and accused persons419 to remain silent during questioning, as
well as the right for accused persons not to be compelled to testify against themselves or to
confess guilt,420 are laid down in the Statute and the RPE. Consequently, the right to remain
silent already attaches to the preliminary phases of the investigation. Article 21(4)(g) of the
ICTY Statute, Article 20(4) (g) of the ICTR Statute, and Article17 (4)(g) of the SCSL Statute
mention the right for the accused not to be compelled to testify against him or herself or to
confess guilt. In turn, Rule 42 of the ICTY, ICTR, and SCSL RPE explicitly includes a right to
remain silent for suspects during questioning.421 Lastly, Rule 63(B) of the ICTY, ICTR, and
SCL RPE provides for the accused persons’ right to be cautioned of their right to remain
silent.422
The rationale behind the right to remain silent and the privilege against self-incrimination is
the protection against improper compulsion by the prosecution or other authorities, and
against obtaining evidence through methods of coercion or oppression in defiance of the
will of the accused. From the case law of the ad hoc Tribunals on the right to remain silent,
certain guidelines can be derived regarding the conduct of interrogations. It emerges that
interrogation techniques which rely on compulsion, such as the use of trickery, treats, and
inducements, are prohibited, as these techniques necessarily have consequences regarding
the voluntariness of the questioning. The link with the procedural safeguards under Rule 43
should also be underscored. Rule 43 of the ICTY, ICTR, and SCSL RPE encompasses the
technical rules which are not only aimed at ensuring the (p. 225) reliability and precision of
the statement, but which equally safeguard the guarantees of Rule 42, and in particular the
protection against involuntary self-incrimination.423
Before the questioning starts, the suspect or accused should be informed of this right in a
language he or she speaks and understands. The suspect or accused should be warned that
any statement he or she makes will be recorded and may be used in evidence,424 although it
need not be specified against whom.425 However, the ICTY Appeals Chamber accepted that
where the accused is assisted by counsel, he or she is presumed to know of the existence of
the right.426
In the Delalić et al. case, an accused person was ‘encouraged’ to speak rather than to
remain silent. The Trial Chamber ruled that ‘telling a suspect that a confession would on
conviction assist in mitigation of punishment is not so strong as to induce confession’.427
The offering of an alternative to remaining silent was, according to the Trial Chamber,
‘undesirable’ and in conflict with the right. However, it did not render the interrogation
involuntary.428
Similar to the right to counsel, the waiver of the right to remain silent, and thus the choice
to respond to a question asked, should be voluntary, express, and unequivocal.429 The
suspect or accused should be aware of the existence of the right and should know the
consequences of a possible waiver.430 In the Delalić et al. case, Mucić claimed that for the
assessment of the voluntariness of such a waiver, a subjective test should be applied, taking
into consideration his cultural background and the fact that he was under arrest in a
foreign country.431 The Trial Chamber did not accept this cultural argument and stated that
the suspect had the facility of interpretation of the right in a language he understood.432
Where the suspect or accused has freely and voluntarily made statements prior to trial, he
cannot later on choose to invoke his right against self-incrimination retroactively to prevent
those statements from being introduced, provided that he was informed about his right to
remain silent before giving this statement.433
Is there a possibility to hold the silence of the suspect or the accused against him or her?
Arguably, indirect compulsion is exercised if the suspect or the accused is warned that
silence during the questioning can be used against him or her. In Delalić et al., the Trial
Chamber considered the possibility of drawing adverse inferences from the silence of the
accused. The prosecution requested an order from the Chamber to direct Mucić to provide
a handwriting sample to prove his authorship of a letter, something the defence opposed as
being a violation of the protection against self-incrimination. The prosecutor relied on the
Murray case of the ECtHR.434 However, the Trial Chamber argued that, unlike the Murray
(p. 226) case, there is no power to make adverse inferences provided for in the Statute.435
Article 21(4)(g), Rule 42(A)(iii), and Rule 63 are unambiguous.436 The Trial Chamber ruled
that compelling the accused to provide a sample would infringe Article 21(4)(g) of the ICTY
Statute.437 It argued that: ‘If the handwriting sample taken together with other evidence
will constitute material evidence to prove the charge against the accused, then the order of
the Trial Chamber would have compelled the production of self-incriminating evidence.’438
Further: ‘There is no duty in law or morals for the accused to fill a vacuum created by the
investigative procedural gap of the Prosecution.’439 According to the Chamber, the precise
meaning of the right to silence is that the accused person can stay mute without reacting to
the allegation.440
A substantial amount of litigation before the ad hoc Tribunals focuses on the alleged
involuntariness of the interview. Oppressive conduct renders the interview involuntary. In
the following paragraphs, a distinction is made between two scenarios. On the one hand,
oppressive conduct can include statements that ‘excite hope’ and which lead the suspect or
defendant to cooperate involuntarily; they coerce the defendant into cooperating. On the
other hand, certain conduct can ‘raise fears’ and equally coerce the suspect or defendant
into cooperating.
Regarding the first category, a distinction is drawn in the case law of the ad hoc Tribunals
between (i) ‘inducements that render cooperation involuntary’ and (ii) ‘inducements that
are mere incentives to cooperate’. The ICTY Appeals Chamber stated in Halilović that the
fact that an incentive was offered by the interviewer during an interrogation and that the
accused subsequently took this incentive into account does not mean that the accused acted
involuntarily.441 Only inducements which are more powerful and ‘coerce the Appellant into
cooperating with the Prosecutor’ render the cooperation involuntary.442 However, such a
test is not always easy to apply in practice. Underlying this test is a subjective element,
namely an assessment of the extent to which an inducement coerces the accused into
cooperating. For example, the effect of a statement made by the prosecution that, if the
accused cooperates, the prosecution will not oppose an application for provisional release,
will very much depend on the personality of the accused and is difficult to measure.
In Halilović, the Appeals Chamber agreed with the Trial Chamber that a statement by the
prosecution, that cooperation by the accused ‘could have a positive influence on the
Prosecution’s position in respect of an application for provisional release’, should be
distinguished from any promise of provisional release and did not render the interview
involuntary. However, the Appeals Chamber found that the Trial Chamber erred in not
classifying the statement as an inducement. While the statement was not of such a nature
as (p. 227) to coerce the accused into cooperating, this did not undermine its nature as an
‘inducement understood as an incentive to cooperate’.443
In Sesay, the SCSL Trial Chamber largely relied on common law case law, from which it
derived certain ‘principles of law’ regarding the voluntariness of interrogations. It follows
from these principles that a promise made by the prosecution will render a statement
involuntary only if the quid pro quo that is offered provides a strong enough inducement ‘to
raise a reasonable doubt about whether the will of the suspect was overborne’.444In casu,
the prosecution investigators had told the accused that they had the authority to speak to
the judges concerning potential leniency considerations if he would cooperate, and that the
judges would accept whatever they, as investigators, told them.445 Moreover, the accused
was also told that cooperation would enable the investigators to ask the Court for a reduced
sentence. Finally, the accused was told that the prosecution would take care of the
accused’s family for the duration of the interrogation. The prosecution stated that the
family of the accused would be placed in protective custody and that there would also be
financial benefits and possible relocation of the family to another country.446 They further
indicated to the accused that he would be called as a witness for the prosecution if he
cooperated which, according to the Chamber, might have been understood by the accused
as meaning that he might be able to avoid prosecution.447 This, together with other
irregularities, led the Chamber to conclude that the prosecution had not discharged its
burden to prove beyond reasonable doubt that the statements were given voluntarily. The
Court explained that the statements resulted from ‘fear of prejudice and hope of
advantage’. It referred to the role of the prosecution investigators as one which ‘borders on
a semblance of arm twisting and holding out promises and inducements to the Accused in
the course of the interrogation and particularly during the unrecorded conversations in the
course of the break in order to sustain the accused’s co-perpetration with the
Prosecution’.448 Notably, while the prosecution upheld before the Court that police trickery
was not used by the prosecution in the case at hand, it argued that such practices should be
accepted and condoned by the Court.449 In Delalić et al., the Trial Chamber found that
‘telling a suspect that a confession would on conviction assist in mitigation of punishment is
not so strong as to induce confession’.450 The offering of an alternative to remaining silent
is, according to the Trial Chamber, ‘undesirable’ and at odds with the right to remain silent
but does not render the interrogation involuntary.451
Regarding the second category (conduct that ‘raises fears’), it is to be noted that no explicit
prohibition of the use of coercion, duress, or threats during questioning can be found in the
Statute or RPEs of the ad hoc Tribunals or the SCSL. Nevertheless, the jurisprudence
provides some guidance as to what conduct is prohibited.
In Delalić et al., the Trial Chamber held that statements that are induced by oppressive
conduct (coercion, force, or fraud) that sapped the concentration and free will of the (p.
228) accused through various acts, weakened resistance, and rendered it impossible for the
suspect to think clearly, constitute oppressive conduct.452 The oppressiveness hinges upon
many factors that cannot all be catalogued. First, the characteristics of the person should
be taken into consideration. What may be oppressive to a child, old man or invalid person,
or someone inexperienced in the administration of justice, may not be oppressive to a
mature person who is familiar with the judicial process.453 Equally important are the
duration and manner of questions as well as material considerations.454 Borrowing from the
English law of evidence, the Trial Chamber defined oppressive questioning as:
Questioning which by its nature, duration or other attendant circumstances

(including the fact of custody) excites hope (such as hope of release) or fears, or so
affects the mind of the subject that his will crumbles and he speaks when otherwise
he would have remained silent.455
This test led the Trial Chamber to conclude that an interview that lasted for four hours and
forty-five minutes, in which five different officers participated, did not constitute oppressive
questioning.456 In Orić, the Defence complained that the defendant had been aggressively
questioned. The ICTY Trial Chamber concluded that the questioning was not aggressive and
held that where the style of interrogation was ‘somewhat aggressive’, ‘this was within the
limits of normality and in no way affects the integrity of the interview rendering it
unreliable’.457
The SCSL Trial Chamber in the Sesay case refused to take into consideration the cultural
background of the accused when looking into the oppressiveness of the questioning.458 The
Chamber was of the opinion that the test is to be construed objectively.
Several ICTR accused have filed motions to exclude statements made during prior
interrogation for alleged use of torture or duress.459 However, there are no instances where
the ICTR found these allegations to be proven. The requirement of video or audio recording,
if the recording is executed properly, offers an effective protection against such practices.
With regard to other forms of improper compulsion (prohibition of deceptive methods), the
case law of the ICTR has clarified that the interviewer should not mislead the suspect or
accused with regard to his or her affiliation with the OTP.460
b.4. Right to be informed of the charges or allegations
Accused persons are entitled to be informed about the nature and cause of the charges
against them prior to being questioned.461 This information duty is connected to and helps
to ensure the effective exercising of the privilege against self-incrimination.
This information duty on the prosecution has occasionally been violated. In the Simić et al.
case, a telephone interview was conducted, without properly having served the (p. 229)
indictment on the accused.462 In spite of this, the prosecution proceeded with the
interrogation after reading out sections of the indictment to him over the phone.463 At the
time of a second telephone interview, the first six pages of the indictment had been served
on the accused.464 While the prosecution was again aware that the accused had an
incomplete copy, they nevertheless proceeded with the interview on the facts of the
indictment.465 The Chamber held that it was not satisfied that effective service of the
indictment was made prior to any of the telephone interviews and found that the accused
did not fully appreciate the seriousness of the indictment at the material time, nor did he
fully understand the nature of the indictment and the proceedings.466 The obligation of the
valid service of the indictment cannot be derogated from.467
More complicated is the question of whether this right also applies when a suspect is
questioned. Neither the Statute nor the Rules of the ad hoc Tribunals include an explicit
obligation to inform the suspect about the allegations against him or her. Certainly, at this
point, the suspect could not yet have been informed about the precise charges against him
or her, as the suspect interview forms part of a fact-finding process in order to determine
whether charges should be brought against the suspect.468
Is there an obligation to inform a suspect about the allegations before questioning him or
her? Some decisions of the ad hoc Tribunals seem to put such information duty on the
prosecution. In the Karemera et al. case, the ICTR Trial Chamber did not admit into
evidence the statements of the interviews with Nzirorera and Ngirumpatse, who were
interviewed after being provisionally arrested pursuant to Rule 40 of the ICTR RPE. At that
point, each person still objectively qualified as a suspect and not an accused given that no
indictment had yet been confirmed.469 The Chamber excluded the evidence pursuant to
Rule 95, as the suspects were not informed promptly and in detail of the charges against
them, in accordance with Article 20(4)(a) of the ICTR Statute.470 Nevertheless, this decision
is confusing since the Chamber failed to explain why Article 20, which outlines the rights of
the accused, should be applied to the (custodial) questioning of a suspect.471 While the
Chamber accepted that Ngirumpatse was informed of his rights to be assisted by counsel,
to free assistance by an interpreter, and to remain silent, the Chamber found ‘no indication
that he was informed about the charges against him or the nature and cause thereof’.472 It
is unclear whether, in the reasoning of the Chamber, such requirement of information about
the charges constitutes a separate right for a suspect during questioning or whether such
requirement follows from a retrospective application of the rights of accused persons.
No right is explicitely provided in the Statute or the Rules for all suspects (detained or not)
to be informed about the allegations when questioned. However, arguably, in case of a (p.
230) custodial interrogation of a suspect, a right to be informed of the reasons for arrest
follows from human rights law.473
Some authors subscribe to a right of suspects to prompt information about the nature and
cause of the suspicions in case of questioning.474 Safferling presumes the applicability of
Article 21(4)(a) of the ICTY Statute to suspects, as underlying the procedural safeguards of
Rules 42 and 43 is a ‘scrupulous honesty towards the suspect’.475 Such argumentation
seems to be more de lege ferenda.
As acknowledged by the Trial Chamber in Karemera et al., there is a close link between the
right to be assisted by counsel and the right to be informed about the allegations.476 Indeed
it can rightly be argued that it is difficult for a suspect to decide whether to waive or
exercise the right to counsel if the suspect is not generally made aware of the allegations
against him or her.477 In this case, the Chamber expressed its doubt as to whether a
suspect, who had no knowledge about the charges or provisional charges against him, was
in an informed position to waive his right to counsel or to answer questions put to him
during his interview.478 Also in Haraqija and Morina, the Trial Chamber, when analysing the
decision of the suspect Morina to proceed with the questioning unrepresented, took into
consideration that the suspect ‘was informed of the factual basis for the allegations against
him’.479 In a similar vein, the ICTYAppeals Chamber held that a suspect should be informed
of the ‘nature of the investigation’ prior to an interview in order to make an informed
decision about the waiver of his rights.480
While this string of cases may be welcomed as broadening the rights of suspects, the basis
and source of such right remains unclear. In Haraqija and Morina, the Trial Chamber
rejected the argument made by the Defence that the obligation to inform the suspect of the
nature and cause of the charge against him under Article 14(3)(a) of the ICCPR can be
applied to the questioning of suspects.481
Other case law does not seem to put such an information duty on the prosecutor and the
Chambers reason that for the suspect to be in an informed position to waive the right to
counsel, it is sufficient that he or she is informed that he or she is a suspect, responsible for
committing acts which are chargeable under the Tribunal Statute.482 The Trial Chamber in
Delalić et al. stated that it was not necessary for the prosecution to inform a suspect of the
‘[f]acts on which [their] suspicions were based’.483
(p. 231) b.5. Right to the free assistance of an interpreter
The Statutes of the ad hoc Tribunals guarantee that every suspect has the right to
necessary translation into and from a language he or she speaks or understands.484 Rule
42(A)(ii) of the ICTY, ICTR, and SCSL RPEs encompasses the right for suspects to have the
free assistance of an interpreter when he or she cannot speak or understand the language
that is used during the questioning. Similar safeguards apply when an accused is
questioned.485 The suspect should be informed of the right prior to the interrogation.486
There is no case law of the ad hoc Tribunals or the Special Court directly concerned with
the specific issue of assistance by an interpreter during questioning. Therefore, it can be
assumed that this minimum guarantee has been a less problematic or contested issue. This
does not mean that language problems as such have not been a subject of litigation before
these tribunals.
Moreover, the ICTY jurisprudence provides us with some guidance as to the proper
understanding of the role of the interpreter during questioning.487 Interpreters act as
officers of the Tribunal and their role during questioning is that of ‘a third party in the
furtherance of the administration of justice’.488 Their function is to pass information
concerning what has been said during proceedings to each party; there is no duty for an
interpreter to keep a record of what is said by either party.489
b.6. Conduct of the questioning
The procedure for the conduct of the interviews of suspects is outlined in Rule 43 of the
RPEs of the ad hoc Tribunals and the Special Court. Rule 63(B) of the ICTY, ICTR, and SCSL
RPE makes this procedure applicable to the recording of interviews of accused persons. The
requirement of audio or video recording offers an important safeguard against any pressure
that could be put on the suspect or accused. The suspect or accused person should be
informed of the recording of the interview.490 Besides, the suspect or accused person should
be given the opportunity to clarify anything that was said, or to add anything he or she
would wish.491 Further, the time of the conclusion of the interview should be noted. Also the
fact and time of breaks should be recorded together with the time of the resumption of the
recording.492 One of the original tapes should be sealed in the presence of the suspect or
accused.493 After the interrogation, the content of the recording shall be transcribed ‘as
soon as practicable’ (ICTR/SCSL)494 or if the suspect becomes an accused (ICTY).495
While these provisions may be regarded as mere technicalities, they provide important
safeguards to the suspect or accused. They allow the precision of the interview statement or
translation to be challenged. The recording of the interrogation offers the possibility to
effectively control the voluntariness of the interview. In that sense, it is the most suitable
mechanism to prevent undue pressure being put on the person who is being interrogated.
(p. 232) Video recording is to be preferred as this makes it possible to assess the
environment in which the statement was taken as well as the body language expressed.496
The Rules do not explicitly require that an explanation be given of what occurred during a
break in the interview recording. However, the ICTY Appeals Chamber, in Halilović,
clarified that if during the break a matter is discussed which potentially affects the
voluntary nature of the interview, the interview should recommence with a full explanation
of what occurred during the break.497In casu, the recording was stopped at the request of
the accused and his counsel in order to clarify whether certain agreements reached with
the prosecutor were to be respected.498
In the Sesay et al. case, the SCSL Trial Chamber was faced with a similar situation where a
prosecution investigator testified that his role throughout the interviewing process had
been to talk to the accused during the breaks and to ensure the continuation of cooperation
‘by continuously restating and reaffirming what the Prosecution could do for him in
exchange for his cooperation’.499 No recordings were made on what had occurred during
the breaks, leaving no evidence on what was said, how it was said, and the way it was
perceived by the accused person.500 The Chamber endorsed the reasoning by the ICTY
Appeals Chamber and concluded that ‘this irregularity raises a serious and reasonable
doubt as to the voluntariness of the Accused’s statements recorded by the Prosecution’.501
Consequently, every time the recording is interrupted, the interrogators, as a rule, should
analyse whether the discussion during the break possibly affects the voluntariness of the
interview and, if so, should start the recording with a full explanation of the discussions
during the break.
iii. ICC
a.1. Status of the interviewee
Neither the Statute nor the RPE of the ICC recognize an explicit difference between
suspects and accused persons. According to commentators, disagreements on the definition
of suspects, as well as the wish ‘to avoid any kind of premature evaluation as to the guilt of
the person under investigation’, led to the deletion of the term.502 While the ICC Statute
avoids the term ‘suspect’ and talks of a ‘person against whom there are grounds to believe
that he or she has committed a crime within the jurisdiction of the Court’, this definition is
equally objective in nature.503 Once charges are confirmed, the person is referred to as the
‘accused’.504
(p. 233) The most important distinction between witnesses and suspects consists of the
application of Article 55(2) of the ICC Statute, including (i) the right to be informed of being
a suspect, (ii) the right to remain silent, and (iii) the right to have the assistance of counsel.
It follows from Regulation 41(2) of the Regulations of the OTP that in case information
conveyed during a witness interview raises grounds to believe that the witness has
committed a crime within the jurisdiction of the Court, the interviewee will immediately be
informed of his or her rights under Article 55(2) of the ICC Statute. The stated practice of
the prosecution is that interviews are preceded by a ‘screening interview’, one of the
purposes of which is to determine whether the person interviewed qualifies as a suspect.505
a.2. Status of the interviewer
The ICC Statute clearly provides that the rights of suspects equally apply when the
interrogation is conducted by the national authorities at the request of the prosecutor.506
This provision guarantees procedural uniformity. The provision should arguably be
interpreted in a broad manner so as to also include interviewers that are part of
international governmental organizations or peacekeeping operations.507 Whereas the
questioning by national law enforcement officials will be conducted according to the
provisions of the national laws, the minimum procedural safeguards in Article 55 of the ICC
Statute should in any case be respected. It should also be noted that there is broad scope
for the OTP to itself conduct or participate in such interviews pursuant to Article 99(1) of
the ICC Statute.
This explicit reference to national authorities does not appear in the provision regulating
the modalities for the conduct of questioning in Rule 112 of the ICC RPE. Unlike Article
55(2), Rule 112 on the recording procedure for interrogations of suspects and accused
persons only refers to the prosecutor. Consequently, it may be inferred that the modalities
of Rule 112 are not required in the case of questioning by non-ICC investigators.508 The
drafting history indicates that proposals had been made for the modalities in Rule 112 to
apply also to questioning conducted by national authorities at the request of the Court.509
However, this was omitted due to the view that it would have created additional obligations
for states parties that are not foreseen under the Statute. Nevertheless, as the technical
requirements outlined in Rule 112 may be beneficial to establish the reliability and
voluntariness of statements made, or to assist with the interview of particularly vulnerable
witnesses, the prosecutor may choose to refer to the modalities outlined in Rule 112 as part
of its request for cooperation to the state concerned. Article 99(1) of the ICC Statute
provides that states parties will execute requests for assistance in accordance with the
relevant procedure under their national law, and, unless prohibited by such law, ‘in the
manner specified in the request, including following any procedures outlined therein’.510
(p. 234) b. Power and procedural safeguards
b.1. Prosecutorial power
The power of the ICC prosecutor to question persons investigated, victims, and witnesses is
provided for in Article 54(3)(b) of the ICC Statute. An obligation incumbent on states
parties to comply with requests from the ICC to provide assistance to the questioning of
persons investigated or prosecuted is laid down in Article 93(1)(c) of the ICC Statute.
Articles 93 and 99(1) leave the prosecutor with broad discretion to request participation at
the questioning of the suspect or accused person by the requested state. Furthermore,
where it is necessary for the successful execution of the request and where the suspect
participates in the interview on a voluntary basis, the prosecutor may interview a suspect
on the territory of a state party without further state assistance.511
b.2. Right to assistance by counsel during interrogation
The right for suspects to have the assistance of counsel of the person’s choosing or to have
legal assistance assigned during interrogation is laid down in Article 55(2)(c) of the ICC
Statute. The suspect has to be informed of this right.512 A similar right is provided for the
accused under Article 67(1)(d) of the ICC Statute.513
After the suspect has been informed of his right to assistance by counsel, the suspect can
chose to voluntarily waive this right.514 Unfortunately, unlike the statutory documents of the
ad hoc Tribunals and the SCSL, there is no explicit requirement to immediately cease the
questioning when a suspect, who previously waived his or her right to counsel, changes
their mind.515
b.3. Right to remain silent
According to the ICC Statute, the suspect who is questioned, either by the prosecutor or by
national authorities, has the right to remain silent during the questioning.516 Accused
persons enjoy the right not to be compelled to testify or confess guilt as well as the right to
remain silent during interrogation.517 Notably, Regulation 43 of the ICC OTP Regulations
declares: ‘[n]o inducement whatsoever shall be offered to a person in exchange for
questioning or statement’.
Similar to the ad hoc Tribunals and the SCSL, the right to remain silent can be waived and
the accused or suspect should be cautioned. However, no express requirement is to be
found, either in the Statute or in the Rules, that the suspect or accused should be warned
that his or her statement may be used in evidence at trial.518 Nonetheless, the prosecution
has stated that it has ‘adopted, and consistently applied, a policy of informing all persons
questioned—including under Article 55(2)—that their evidence may be used in subsequent
proceedings’.519 This has subsequently been regulated in Regulation 40(f) of the
Regulations of the Office of the Prosecutor.
(p. 235) The ICC Statute explicitly states that silence shall not be a consideration in the
determination of guilt or innocence of the accused.520 In this regard, the ICC Statute offers
greater protection than the ad hoc Tribunals and the SCSL.521
b.4. Right to be informed of the charges or allegations
Every accused should be informed promptly and in detail about the nature, cause, and
content of the charge, in a language that the accused fully understands and speaks.522 It
has been argued that while no meaningful difference seems to exist between the ‘cause’,
which refers to the material facts, and the ‘content’, the latter requirement may include a
‘message of exhaustivity’.523
Under Article 55(2)(a) of the ICC Statute, there is an obligation incumbent on the
prosecutor to inform the suspect that there are reasonable grounds to believe that he or she
has committed a crime within the jurisdiction of the Court. However, it is debatable whether
or not such obligation falls short of an obligation to inform the suspect of the allegations
against him or her.524 Nevertheless, where the suspect has been arrested prior to his first
interrogation, he or she will already have been informed of any allegations through the
communication of the warrant of arrest.525 Alternatively, where the interrogation takes
place after the suspect’s initial appearance pursuant to a summons to appear or on a
voluntary basis, the suspect will likewise be informed about the allegations. As noted by
Alamuddin, the right for suspects to be informed about their status may hamper
investigative efforts where these suspects are senior government officials. Hence, a careful
planning of the questioning of these suspects may be required.526
b.5. Right to the free assistance of an interpreter
The right to have, free of charge, the assistance of a competent interpreter and translations
as are necessary for the requirements of fairness, if such person is questioned in a language
other than the language the person fully understands and speaks, is provided for all persons
questioned during the investigation.527 The Appeals Chamber clarified in Katanga and
Ngudjolo that: ‘An Accused fully understands and speaks a language when he or she is
completely fluent in the language in ordinary, non-technical conversation; it is not required
that he or she has an understanding as if he or she were trained as a lawyer or judicial
officer.’528 Hence, merely being conversant with a language does not seem to be sufficient.
Moreover, ‘such translations as are necessary to meet the requirements of fairness’ should
be provided for.529 This does not require translation into the native language of the suspect
or accused.
(p. 236) b.6. Conduct of the questioning
A distinction is made in the RPE between records of questioning ‘in general’ and recordings
‘in particular cases’.530 The particular cases which require an audio or video recording
relate to persons to whom Article 55(2) of the ICC Statute applies or against whom an
arrest warrant or summons to appear has been issued. Hence, for all interrogations of
persons who may have committed crimes within the jurisdiction of the Court, a recording is
required.531 Additionally, the prosecutor is free to apply this procedure in other cases, ‘in
particular where the use of such procedures could assist in reducing any subsequent
traumatisation of a victim of sexual or gender violence, a child or a person with disabilities
in providing their evidence’.532 The Pre-Trial Chamber may also order that this procedure
be applied in case of a ‘unique investigative opportunity’ under Article 56.533 Overall, the
provisions appear to favour a wide application of audio or video recording and not only in
order to respect the rights of suspects and accused persons but also to safeguard the
specific interests of particularly vulnerable victims and other persons in a vulnerable
position.534
The conduct of the questioning is regulated in great detail.535 It is expressly provided that
the waiver of the right to assistance by counsel should be recorded. Interruptions should be
recorded as well as the time of the interruption and resumption.536 Before concluding the
questioning, the person questioned should be given an opportunity to clarify or add to his or
her statement. The time of the conclusion of the questioning should be noted.537 The tape
should be transcribed ‘as soon as practicable after the conclusion of the questioning’ and
the suspect or accused should be given a copy of the transcript and the recorded tape.538
The original tape shall be sealed in the presence of the accused or suspect and his or her
counsel, if present, and be signed by them and the prosecutor.539
The suspect or accused person can object to the audio or video recording (waiver). The
person must be informed of this possibility and his or her answer must be noted in the
record of the questioning.540 The suspect or accused person can speak in private to his or
her counsel before responding.541 Exceptionally, the prosecutor can question a suspect or
accused person without video or audio recording where the circumstances prevent such
recording despite all reasonable efforts.542 If so, the reasons must be stated in writing. If
the person objects to audio or video recording of the interview, or if circumstances prevent
such recording, the general written procedure outlined in Rule 111 applies.543
(p. 237) iv. SPSC
a. Power to question suspects and accused persons
The power of the public prosecutor to question suspects and accused persons was laid
down in general terms in Section 7.4(b) of the TRCP.
b. Procedural safeguards
Suspects and accused had the right to legal assistance.544 The right to have counsel (a legal
representative) present during interrogation as well as the possibility to waive such right
was mentioned specifically only in relation to custodial interrogations.545 The right to
remain silent was also recognized, as well as the prohibition against negative inferences of
the silence in the determination of guilt or innocence.546 The suspect or accused should be
informed in detail, in a language he or she understood, of the nature and cause of the
charges against them.547 The obligation to inform the suspect in detail of the charges is
puzzling, since at that stage, by definition, the person has not been indicted.548 An
interpreter should be provided for, free of charge, if the suspect or accused could not
understand or speak one of the official languages of the court.549 No coercion, duress,
threats, torture or other forms of cruel, inhuman or degrading treatment or punishment
could be used against the suspect or accused.550 However, the TRCP lacked additional
safeguards to ensure the respect of these minimum rights during questioning, such as video
or audio recording.
The case law of the SPSC reveals that, in practice, the minimum rights of suspects and
accused were not always respected. For example, in the case of Joni Marques et al., the
accused was reportedly questioned without his lawyer being present. A standardized letter
was sent by the lawyer stating that, due to time constraints, the questioning could take
place without his presence, and including a list of rights to be read to the accused before
the questioning.551 The statement was consequently allowed during the cross-examination
of the accused at trial. The court found that the accused had waived his right to counsel by
being interviewed.
Nevertheless, a distinction was made by the Court between using the interview statement
during cross-examination and the use of the statement as evidence. For example, in the
case against Francisco Pedro, statements made by the accused to the police during the
investigation were not admitted into evidence, although the rights of the accused were
upheld during the interrogation.552 The Court decided that only statements that are made
before the investigative judge during the investigation, and in the presence of the public
prosecutor and the defence counsel, may be admitted, but not statements made before the
police or the public prosecutor.553 The Court derived this rule from the limitations of the
TRCP on the use of admissions of guilt by the accused.554
(p. 238) v. ECCC
a. Power to question suspects and charged persons
An express power for the co-investigating judges to question suspects is laid down in Article
23 new (8) of the ECCC Law. According to the Internal Rules, the co-investigating judges
may summon and question suspects555 and charged persons.556 The judicial police and
investigators cannot question the charged person.557 During the preliminary investigation,
the co-prosecutors are empowered to question any person that may provide relevant
information for the case under investigation.558 The questioning of the accused is less
relevant for the present analysis. Indeed, under the ECCC procedural system, a person only
formally becomes an accused person after the co-investigating judges or the Pre-Trial
Chamber (in case of disagreement) indict(s) the person by sending him to trial.559 At this
point, the judicial investigation has been concluded.
b. Conduct of questioning
The rules on the conduct of interrogations closely resemble the procedural safeguards of
the other international criminal tribunals. They imply audio or video recording in addition to
a written record, whenever possible, and the possibility for the suspect or accused to object
to such a recording.560 A waiver of the right to assistance by counsel should be recorded.561
Any breaks and the time thereof should be explained and the person should be given an
opportunity to clarify what was said and to add anything.562 The questioning may proceed
without audio or video recording when circumstances prevent such recording from taking
place.563 Also similarly to the ICC procedure, the co-prosecutors or co-investigating judges
may choose audio or video recording when questioning other persons, in particular when
such recording would assist in reducing subsequent traumatization of victims of sexual or
gender violence, children, elderly persons, or persons with disabilities in providing their
evidence.564
It is important to note the explicit inclusion, in the Internal Rules, of a provision prohibiting
any form of inducement, physical coercion, or threats thereof, whether directed against the
interviewee or others, during an interview.565 Violations are sanctioned by the exclusion of
evidence and the person responsible shall be disciplined. The procedural framework of the
ECCC envisages a system of automatic exclusion of the evidence obtained. Whereas the
prohibition of coercion is also included in the procedural rules of other tribunals, the
explicit prohibition of inducements or treats is a welcome improvement. The precise
boundaries of the provision remain to be clarified by the ECCC’s jurisprudence. Arguably, it
prohibits the use of different forms of deception.566 However, the provision may additionally
be interpreted to disallow putting any leading question to the person during questioning.
The imposition of severe consequences, the automatic exclusion of the evidence obtained, is
not found elsewhere at the international tribunal (p. 239) level. Another difference is the
detailed regulation of the questioning of deaf or mute persons.567
Peculiar to the procedures of the ECCC, and in line with the procedural system of a number
of civil law jurisdictions, is the importance of the questioning of the charged person by the
co-investigating judges.568 The co-investigating judges will normally interview the charged
person soon after they are seized and have received the introductory submission by the co-
prosecutors.569 The charged person can also request to be interviewed.570 The co-
investigating judges can deny such a request in an order stating the factual reasons for the
rejection.571
Before an interview with a charged person, the co-investigating judges shall summon the
lawyer (if he or she has one) at least five days in advance and allow the lawyer to consult
the case file.572 Apart from this five-day period, there is no general right for the defence to
have adequate time to prepare for the interview.573 In the opinion of the Pre-Trial Chamber,
the latter right refers to the ‘fair trail right’ to have sufficient time to prepare for trial. As
the purpose of an interview with the charged person is to put questions to the person about
what he or she knows, but not to seek the charged person’s response to specific
accusations, that right does not apply.574
The interview with the charged person may take place only in the presence of his or her
lawyer, unless the charged person has waived this presence,575 or in ‘emergency situations’.
Emergency situations are situations ‘when there is a high probability of irretrievable loss of
evidence while awaiting the arrival of a lawyer, such as the impending death of the charged
person’.576 The charged person’s consent is required. The co-prosecutors can attend the
interview and request that certain questions be put to the charged person by the co-
investigating judges. The co-investigating judges decide whether to put the question to the
charged person or not. A refusal by the co-investigating judges should be noted in the
record.577
The rules on the interviewing of a charged person should be distinguished from, and in
principle do not apply to, the adversarial hearing on provisional detention.578 The Pre-Trial
Chamber has explained that this adversarial hearing is ‘distinct in its purpose’, as it
provides the charged person with a possibility to respond to the request and arguments
made by the co-prosecutors.579 An interview with the charged person, on the other hand, is
(p. 240) aimed at obtaining a statement from the accused, which could then be used in
evidence.580 However, the Pre-Trial Chamber upheld a functional interpretation of Rule 58,
which would imply that Rule 58 should be applied to any questioning of the charged person,
irrespective of the procedure.581
In case of a confrontation, the same procedural rules on the interview of a charged person
apply. During the confrontation, the lawyers of the other parties can also request the co-
investigating judges to put certain questions to the charged person.582
c. Procedural safeguards
Article 24 new ECCC Law includes an unconditional right for suspects to legal assistance of
their own choosing and to have counsel assigned if they cannot afford it.583 The right to
legal assistance for suspects is thus not limited to the questioning. Moreover, a free choice
of counsel is explicitly guaranteed. The right for charged persons to have the assistance of
counsel during questioning is provided for in Rule 58(2) of the Internal Rules.584
The ECCC Law includes the right for accused persons not to be compelled to testify against
themselves or to confess guilt.585 Despite the fact that the ECCC Law does not include the
right to remain silent for suspects, the Internal Rules provide that every suspect or charged
person should be presumed innocent, and therefore informed at every stage of the
proceedings about their right to remain silent.586
According to the case law of the Pre-Trial Chamber, a request by a charged person or his or
her lawyer to postpone the interview cannot be understood as an attempt by the charged
person to invoke his or her right to remain silent.587 The right to remain silent does not
serve any purpose when, in the course of an adversarial hearing on provisional detention
(Rule 63 ECCC IR), the charged person is not questioned and is only given the opportunity
to respond to the request of the co-prosecutors.588 Hereby, the Pre-Trial Chamber appears
to introduce a restriction to the right for a charged person to remain silent, which seems to
be at odds with the labelling of this right as a ‘fundamental principle’ that should apply at
every stage of the proceedings.589
Charged persons equally enjoy the right to be informed about the charges that are brought
against them.590 They also have the right to interpretation into and from a language they
speak and understand.591
vi. STL
a. Power to question suspects and accused persons
The power of the prosecutor to question suspects is laid down in Article 11(5) of the STL
Statute and Rule 61(i) of the STL RPE. The questioning of suspects and accused persons is
further regulated in the RPE.592
(p. 241) b. Conduct of questioning
The procedural rules on the recording of the questioning of suspects and accused resemble
the procedural rules of other tribunals.593 Whereas technical rules on the recording of
interviews coincide with the provisions of the ad hoc Tribunals, a provision was added, in
line with the ICC RPE, to allow questioning of suspects or accused persons without video or
audio recording on an exceptional basis ‘where circumstances make it absolutely
impractical for such recording to take place’.594 This standard is less restrictive than the
standard in the ICC RPE or the ECCC IR, which allow questioning without recording ‘where
the circumstances prevent such recording taking place’.595
c. Procedural safeguards
As in other international criminal tribunals, several minimum rights should be respected
whenever a suspect is questioned. Suspects should, according to the Statute, be informed
about the existence of these rights in a language they speak and understand.596 However,
the RPE speak only of a language that the suspect ‘understands’.597 An amendment to
broaden protection offered by the RPE by requiring information in a language the suspect
‘fully understands and speaks’ was rejected.598
Article 15(e) of the STL Statute and Rule 65(A)(ii) of the STL RPE provide that the suspect
is only to be questioned in the presence of counsel. However, should the reference in Article
15(c) STL Statute to the ‘interests of justice’ criterion for the assignment of counsel be
interpreted as a limitation to the right to the assistance of counsel? Such a requirement
does not add anything as regards crimes within the jurisdiction of the STL; it will always be
in the interests of justice to have counsel assigned if the suspect does not have the means to
pay for it. The right to assistance by counsel during questioning can be waived.599 The
provision of the RPE takes into consideration the case law of the ad hoc Tribunals by not
only requiring that the waiver is voluntary but also that it is given expressly.600 The Statute
seems to offer a lesser protection to the suspect by only requiring that the waiver is
voluntary.601 It may be that through this formulation, the Judges of the STL sought to
extend the protection offered by the STL Statute. If the suspect subsequently expresses a
desire to have counsel, the questioning should cease immediately and resume only when
counsel for the suspect is present.602
The suspect also enjoys the right to the free assistance of an interpreter if the suspect
cannot understand or speak the language used during questioning, as well as the right to
remain silent and to be cautioned.603 In line with the ICC RPE, the STL Statute states that
the silence cannot be considered in the determination of guilt or innocence.604 Before being
(p. 242) questioned, the suspect should be informed that there are grounds to believe that
he or she has committed a crime within the jurisdiction of the STL.605
The same rights apply when an accused is being questioned.606 In addition, the accused
enjoys the full gamut of rights under Article 16 of the STL Statute. For example, it follows
from Article 16(4)(a) of the STL Statute that the accused should be informed promptly and
in detail, in a language that he or she understands, of the nature and cause of the charge
against him or her.
vii. Synthesis
The previous survey allows us to make a number of observations regarding the procedural
rules applicable to the questioning of suspects and accused persons. A number of
procedural safeguards can be identified which are commonly shared among the different
tribunals. The procedural rules encompassing these rights can be earmarked as firmly
established in international criminal procedural law. Other procedural rules seem not to be
commonly shared. While the jurisprudence of the ICC (and the jurisprudence of other
courts with international elements) grows every day, it remains to be seen, with regard to a
number of procedural rules on the questioning of suspects and accused outlined in the
jurisprudence of the ad hoc Tribunals and the SCSL, whether the ICC will follow their
example. For example, the case law of the ad hoc Tribunals prohibits the use of only certain
forms of inducement during questioning. On the other hand, the ECCC Internal Rules
prohibit all forms of inducement. What the future attitude of the ICC towards inducements
will be remains to be seen.
First, it is clear that the procedural framework of all tribunals under review includes the
prosecutorial power to question suspects and accused persons. At the ECCC, the co-
prosecutors are empowered to ‘summon and interview any person who may provide
relevant information on the case under investigation’, including suspects, in the course of
preliminary investigation.607 Secondly, the right to have the assistance of counsel during
interrogation is firmly established. Such a procedural right was not only found in the
procedural frameworks of the ICC, the SCSL, and the ad hoc Tribunals but also at the ECCC
and the STL. One exception is the SPSC which seems to limit the right to custodial
interrogations. Another notable exception is the possibility for the co-investigating judges of
the ECCC to question the charged person in emergency situations without counsel being
present. However, the consent of the charged person is required.
The suspect or accused should be informed about the right to counsel and have the
possibility to waive it, provided that such waiver is given voluntarily. The rules of ad hoc
Tribunals and the STL are clearer than the ICC provisions in this regard by explicitly
requiring that the waiver is express (and unequivocal). The procedures of the ad hoc
Tribunals, the SCSL, and the STL mean that if a waiver is revoked, the questioning should
immediately stop and start again only when counsel has been assigned to the suspect or
accused. Neither the ICC Statute nor the ICC RPE explicitly mention such a requirement. It
also follows from the case law of the ad hoc Tribunals that if substantive evidence is
adduced which questions the competence of the counsel to adequately represent the
interests of the suspect or accused during the interview, the Tribunal should investigate this
competence.
(p. 243) Thirdly, equally well established is the right for suspects and accused to remain
silent during questioning. The right can be waived and the suspect or accused should be
cautioned. According to the case law of the ICTY, a presumption exists that a person is
informed about the right to remain silent during questioning if he or she is assisted by
counsel. Contrary to the procedural set-up of the ICC, the ECCC, and the SPSC, the RPEs of
the ad hoc Tribunals and the SCSL, as well as the STL Statute and RPE, explicitly state that
the suspect or accused should be warned that his or her statement could be used in
evidence at trial. The right cannot be invoked retroactively. It follows from the case law of
the ad hoc Tribunals that no adverse inferences can be drawn from the silence of the
suspect or accused. The Statutes of the ICC and the STL, as well as the TRCP, explicitly
mention this prohibition.
No oppressive methods can be used during questioning that lead an accused or suspect to
speak where he or she otherwise would have remained silent. Forms of oppressive conduct,
including coercion, duress, or threats, as well as torture or other forms of cruel, inhuman or
degrading treatment or punishment, are clearly prohibited. This follows from the case law
of the ad hoc Tribunals, the ICC Statute, the TRCP, and the ECCC IR. While the procedural
framework of the STL does not explicitly mention such a prohibition, it is clear from the
RPE that evidence is not admissible when gathered in violation of international human
rights standards or by means of torture.608
No clearly established rules can be identified regarding inducements. According to the case
law of the ad hoc Tribunals, inducements that render the cooperation involuntary are
prohibited. The ECCC clearly prohibits any form of inducement. It remains to be seen
whether the ICC will consider some forms of inducement during questioning to be
acceptable.
Fourthly, most tribunals (the ad hoc Tribunals, the ICC, and the STL) require that the
suspect is informed that there are reasonable grounds to believe that he or she has
committed a crime within the jurisdiction of the court. Whereas the SPSC and ECCC
require that the suspect be informed at all stages of the proceedings about the charges, it is
unclear what that means in the absence of confirmed charges. Some case law of the ICTR
seems to put a requirement on the prosecutor to inform the suspect about the provisional
charges or allegations. At all the tribunals, the accused person should be informed prior to
being questioned about the nature and cause (and according to the ICC Statute also the
content) of the charges against him or her.
Fifthly, all tribunals provide for the right to the free assistance of an interpreter during
questioning. Such a right is firmly established. The ICC Statute includes a stronger
protection by requiring a ‘competent’ interpreter and interpretation if questioned in a
language other than one the accused or suspect fully understands and speaks. It also
includes a welcome addition in the form of a right to translations prior to questioning as are
necessary to meet the requirements of fairness.
Sixthly, all international criminal tribunals (with the exception of the SPSC) require the
video or audio recording of the questioning of suspects or accused persons. A possibility
exists for the suspect or accused to waive this right and for the prosecutor not to make such
a recording if the circumstances prevent it from taking place (ICC RPE and the ECCC IR),
or where circumstances make it absolutely impractical for the recording to take place (STL
RPE). Audio and video recording can also be applied to persons other than suspects and (p.
244) accused, in particular where such recording would assist in reducing subsequent
traumatization (ICC and ECCC).
B. Evaluation
i. Human rights law
a. Right to assistance by counsel during interrogation
International human rights law recognizes a right for the defendant to have the assistance
of counsel during interrogation. The case law of the European Court of Human Rights
(ECtHR) has long been vague, emphasizing the necessity to look at the criminal
proceedings as a whole. The Court stated that while the right to benefit from the assistance
of a lawyer already at the early stages of the investigation can be derived from Article 6 of
the ECHR, the right can be restricted for good cause.609
The practice meant that it was ‘virtually impossible’ to derive the right to the assistance by
a defence counsel from the case law of the ECtHR.610 The Court relied on a retrospective
determination of whether it could be determined that the restriction of counsel, in the light
of the entirety of the proceedings, has deprived the accused of a fair hearing.611 The Court
underscored that it depended on the special features and circumstances of the case
whether the presence of counsel during interrogations was necessary.612
However, in the Salduz case, the ECtHR changed its perspective and the Grand Chamber
clarified that the assistance of counsel is in principle required for every interrogation
during the investigation.613 The Court emphasized that ‘article 6 will normally require that
the accused be allowed to benefit from the assistance of a lawyer already at the initial
stages of police interrogation’, and that ‘this right has so far been considered capable of
being subject to restrictions for good cause’.614 Next, and after referring to the particularly
vulnerable position of the suspect during interrogations (especially in the light of the
growing complexity of the legislation on criminal procedure), the Court found that ‘in order
for the right to fair trial to remain sufficiently “practical and effective”, Article 6(1) requires
that, as a rule, access to a lawyer should be provided as from the first interrogation of a
suspect by the police, unless it is demonstrated in the light of the particular circumstances
of each case that there are compelling reasons to restrict this right’.615 Such restriction
must not unduly prejudice the rights of the accused under Article 6. The Court concluded:
‘The rights of the defence will in principle be irretrievably prejudiced when incriminating
statements made during police interrogation without access to a lawyer are used for
conviction.’616 Exceptions to the enjoyment of this right should be clearly circumscribed
and its application strictly limited in time.617 Hence, the fact that denial of access to a (p.
245) lawyer is provided for on a systematic basis by the relevant legal provisions does not
satisfy this test.618 While the Salduz judgment left some doubt as to whether access to a
lawyer also encompasses assistance by a lawyer during the interrogation, the subsequent
jurisprudence of the ECtHR may be interpreted as removing any doubt in that regard.619
Also the HRC underlined the importance of the presence of counsel during interrogations
and held that the right to counsel under Article 14(3)(d) of the ICCPR also applies to the
investigation phase.620
Importantly, the ICTY clarified that Rule 42, which outlines the right to counsel for
suspects, reflects (and is an adaptation mutatis mutandis of) Article 6(3)(c) of the ECHR and
Article 14(3)(d) of the ICCPR.621 However, it also clarified that even where the non-
provision of the right to legal assistance in a certain national criminal justice system would
not be found to be in violation of Article 6(3)(c) of the ECHR by the ECtHR, a national
provision restricting the right to counsel during interrogations would still not be acceptable
under Article 18(3) of the ICTY Statute and Rule 42(A)(ii) of the ICTY RPE.622 The ICTY (and
other international criminal tribunals) thus offer a more unequivocal protection of the right
to legal assistance during interrogations than international human rights law currently
does. This seems only logical given the specificity of the statutory right under Rule 42 when
compared to the human rights provisions, leaving no room for interpretation and restriction
of the guarantee.
The statutory documents of the ICTR, SCSL, ICC, ECCC, and STL also include a right to
assistance by counsel during interrogation.623 Such an explicit right for suspects, even
those at liberty, to be assisted by counsel reflects the evolution in the branch of human
rights law towards the recognition of the importance of legal assistance, especially during
the first stages of an investigation.
b. Right to remain silent
The right to remain silent and the privilege against self-incrimination (or nemo tenetur
principle) reflects human rights law.624 Although the ECHR does not include these rights, it
is well accepted today that the right to remain silent and the privilege against self-
incrimination form part of the right to a fair trial. The right to remain silent and the right
not to incriminate oneself were first recognized in Funke and in Murray.625 In Saunders,
the ECtHR stated that ‘although not specifically mentioned in Article 6 of the Convention
(art. 6), the right to silence and the right not to incriminate oneself are generally
recognised international standards which lie at the heart of the notion of a fair procedure
under Article 6 (art. 6)’.626 The rights are closely connected to the presumption of
innocence. The right to remain silent can be considered more limited in scope than the
privilege against self-incrimination, which is not limited to verbal expressions. On the other
hand, the right (p. 246) to remain silent goes beyond the latter right as it not only protects
against statements detrimental to the person concerned, but any declaration at all.627
Recent case law of the ECtHR emphasizes that the privilege against self-incrimination is not
an absolute right and undertakes a balancing exercise, taking into consideration several
factors to determine whether the privilege has been violated.628 These include the nature
and degree of compulsion used to obtain the evidence, the weight of the public interest in
the investigation and punishment of the offence at issue, the existence of any relevant
safeguards in the procedure and the use to which any material so obtained is put.629
The comparative analysis of the different tribunals under review established that the
application of the right to the preliminary phases of the investigation is firmly established in
international criminal procedural law.630 Human rights law is less clear in that regard. The
right attaches to the existence of a ‘charge’, within the meaning of Article 6 of the ECHR.631
However, it has been argued that the suspect should benefit from the protection of this
right from the moment he or she is questioned.632
With regard to the drawing of adverse inferences, the procedural safeguards of the
international tribunals surpass what is required under human rights law.633 According to
the ECtHR, the right to remain silent is not absolute. A conviction cannot solely or mainly
be based on the accused’s silence, but where silence clearly ‘calls’ for an explanation which
the accused ought to be in a position to provide, that failure to give an explanation ‘may as
a matter of common sense allow the drawing of an inference that there is no explanation
and that the accused is guilty’.634 ‘However, a State cannot impose sanctions which compel
the accused to provide information thereby destroying the very essence of their privilege
against self-incrimination and their right to remain silent.’635
It may be asked what forms of compulsion should be considered unacceptable as they
render the questioning involuntary. Not much guidance can be derived from human rights
law. While the case law of the ECtHR clarified that the right to remain (p. 247) silent offers
a protection against improper compulsion, it is less clear what types of compulsion can be
labelled ‘improper’.636 In Allan v. UK, the Court held that:
While the right to silence and the privilege against self-incrimination are primarily
designed to protect against improper compulsion by the authorities and the
obtaining of evidence through methods of coercion or oppression in defiance of the
will of the accused, the scope of the right is not confined to cases where duress has
been brought to bear on the accused or where the will of the accused has been
directly overborne in some way. The right, which the Court has previously observed
is at the heart of the notion of a fair procedure, serves in principle to protect the
freedom of a suspected person to choose whether to speak or to remain silent when
questioned by the police. Such freedom of choice is effectively undermined in a case
in which, the suspect having elected to remain silent during questioning, the
authorities use subterfuge to elicit, from the suspect, confessions or other
statements of an incriminatory nature, which they were unable to obtain during
such questioning and where the confessions or statements thereby obtained are
adduced in evidence at trial. Whether the right to silence is undermined to such an
extent as to give rise to a violation of Article 6 of the Convention depends on all the
circumstances of the individual case.637
c. Right to be informed of the charges or allegations

Human rights law embodies the right to be informed about the accusation or charge.638
However, today the precise boundaries of this right remain uncertain. Human rights law
requires prompt and detailed information on the nature and cause of the charge or
accusation for everyone charged with a criminal offence.639 Whether it follows from human
rights law that a suspect should be informed about the allegations against him or her will
depend on the definition of the terms charge or accusation. As Article 6(3) of the ECHR
refers to ‘everyone charged’, the right to be informed could be interpreted as only applying
when a person is formally charged. Such interpretation would mean that the prosecution
would be able to question a suspect as long as it wants, without informing him or her about
the allegations, as long as no confirmation of the charges is sought.640 However, the ECtHR
has chosen a substantive interpretation: ‘The prominent place held in a democratic society
by the right to a fair trial favours a “substantive”, rather than a “formal”, conception of the
“charge” referred to by Article 6 (art. 6); it impels the Court to look behind the appearances
and examine the realities of the procedure in question in order to determine whether there
has been a “charge” within the meaning of Article 6.’641 The Court explained in Corigliano
that ‘whilst “charge”, for the purposes of Article 6(1), may in general be defined as “the
official notification given to an individual by the competent authority of an allegation that
he has committed a criminal offence”’, it may in some instances take the form of other
measures which carry the implication of such an allegation and which likewise
‘substantially affect the situation of the suspect’.642 In Kamasinski, on (p. 248) the other
hand, the Court seems to have interpreted the term ‘accusation’ under Article 6(3)(a) ECHR
as referring to the indictment.643
The ECtHR has underlined the close link between the right to be informed about the charge
or accusation and the right to prepare a defence.644 This latter right serves as a yardstick to
interpret the right to be informed about the accusation under Article 6(3)(a) of the ECHR.
The fact that an accused has already been questioned at length will, according to the
ECtHR, have an influence on the level of information on the accusation that is required.645
Also Article 14(3)(a) of the ICCPR embodies a right to be informed about the charges.
According to the General Comment on Article 14: ‘information must be provided with the
lodging of the charge or directly thereafter, with the opening of the preliminary
investigation or with the setting of some other hearing that gives rise to official suspicion
against a specific person’.646 According to Nowak, the term ‘charge’ does not merely refer
to the formal act of lodging a complaint but rather to ‘the date on which state activities
substantially affect the situation of the person concerned. This is usually the first official
notification of a specific accusation, but in certain cases, this may also be as early as
arrest’.647
In conclusion, it is difficult, on the basis of human rights law, to determine in the abstract
the exact moment the person should be informed about the nature and cause of the charge.
The ECtHR links this right with the right to prepare a defence, a right which may have a
limited meaning during the process of evidence gathering.648 Trechsel reasons that, as the
obligation is to inform the accused in detail about the allegation, such information cannot
be given at the beginning of an investigation as the very purpose of the investigation is to
gather the evidence.649
d. Right to the free assistance of an interpreter
Human rights law recognizes the right to the free assistance of an interpreter.650 It
acknowledges the applicability of this right to the pre-trial phase and to interrogations of a
suspect or an accused by the police or by an examining magistrate.651 Where the ICC
Statute extends this right to certain documents relied upon during the questioning, it is in
line with human rights law.652 Both the ECtHR and the HRC have interpreted the right as
also applying to documentary materials. The ECtHR has ruled that ‘construed in the context
of the right to a fair trial guaranteed by Article 6, paragraph 3(e) signifies that an accused
who cannot understand or speak the language used in court has the right to the free
assistance of an interpreter for the translation or interpretation of all those documents or
statements in the proceedings instituted against him which it is necessary for him to
understand in order to have the benefit of a fair trial’.653 No translation of all items of
written evidence or official documents in the procedure is required. Fairness is used as a (p.
249) yardstick. Also the HRC has confirmed that the right of the accused to translations of
certain documents does not extend to all documents in the case file.654 However, the
Committee considered this right in the light of the right for the accused to have adequate
time and facilities to prepare a defence.655 Whereas both the ECtHR and the HRC refer to
fairness as a yardstick, it is exactly this reference to the ‘requirements of fairness’ by the
ICC Statute that has been criticized as ‘it does not offer any guidance on its actual
meaning’.656 It remains to be seen what translations will be required by the Court in order
to meet these requirements of fairness.
Human rights law also offers some guidance as to what is meant by the requirement of a
competent interpreter. In Griffin v. Spain, the HRC established that the free assistance of an
interpreter implies a certain minimum quality of interpretation in order to ensure a fair
trial.657 According to the ECtHR case law, the person questioned should be able to
understand the questions that are put to him and should be able to make him or herself
understood in his replies.658 However, it does not impose formal requirements on who can
serve as an interpreter and even allows a prisoner to serve as an interpreter.659
The ICC Statute not only requires a ‘competent’ interpreter but also interpretation and
translation if questioned in a language other than the one the person ‘fully’ understands
and speaks.660 In this sense, the protection even surpasses the protection offered by the
corresponding human rights provisions.
e. Prohibition of torture and inhuman or degrading treatment or punishment
It follows from the application of the prohibition of torture and inhuman or degrading
treatment or punishment to the context of criminal proceedings that torture and other
forms of moral and physical violence during questioning are prohibited.661
While differences between inquisitorial and adversarial criminal justice systems on how the
questioning of suspects and accused persons is conducted may not be visible at first,
disparities exist. The different structures of the criminal processes in inquisitorial and
adversarial criminal justice systems influence the procedural norms regulating the conduct
of the questioning. When the fact-gathering process is not governed by the parties, no
separate competing cases are built and the prosecutor will play a more neutral role. His or
her role is to assist the investigating judge (in those systems where the investigation is led
by (p. 250) such a judge) and the trial judge who bears the primary responsibility for
examining witnesses at trial.662
These differences are important as they impact on the understanding of what constitutes
acceptable behaviour and what interrogation techniques can be resorted to in the conduct
of interrogations. The different understandings in different national criminal justice systems
become problematic where international criminal procedural rules and practice are silent.
One example will be in focus here, the use of deception during the interrogation of suspects
and accused persons. It was shown how no firm rules could be derived from the statutory
documents of the different tribunals, nor from their practice, on what forms of deception
are acceptable in the conduct of interrogations.663 It was also shown that human rights
offers only limited guidance in that regard.664 Lacking other rules, tribunal investigators
rely on their domestic background. Consequently, tribunal investigators hold different views
as to whether and what forms of deception are acceptable. As witnessed by one tribunal
investigator, this results in conflicts between investigators.665
Indeed, dissimilar approaches exist in national criminal justice systems as to whether the
use of deception during questioning is acceptable. The use of deceit is at odds with the
neutral role that the investigators should play in inquisitorial criminal justice systems.666
These systems hold the view that ‘interviews conducted by partisan lawyers in preparation
for the adversary trial can potentially pollute informational sources in ways that cannot
later be detected’.667 Such deceptive interrogation methods distort the truth.668 Many
European continental countries prohibit the use of deceit during interrogation.669 While
under English law, deception by the police during the questioning is prohibited in principle,
some forms of deception do not warrant the exclusion of the statement.670 At the other end
of the range, American jurisprudence has put only a few constraints on the use of deception
during questioning.671 The use of leading questions is acceptable. In various cases, the US
Supreme Court has refused to exclude confessions after certain forms (p. 251) of deception
were used.672 This jurisprudence contrasts sharply with the many limitations on the use of
deception or trickery in other countries.
Ross offers an interesting analysis of these differences between inquisitorial and adversarial
criminal justice systems. She convincingly argues that the strict procedural rules on the
conduct of interrogation during investigation in civil law countries, such as the ban on
deception, fulfil a function comparable to the formal rules of evidence in common law
countries.673 She argues that these procedural rules are a body of evidentiary rules
regulating the acquisition of evidence during the investigation. The procedural rules
regulating the conduct of interrogations fulfil the same function as evidentiary rules at trial
‘to the extent that they filter and shape the information that reaches the trier of fact’.674
Further, they determine the information that reaches the fact-finder but ‘at a much earlier
stage in the criminal process’.675
An evaluation of the procedural rules on the interrogation of suspects and accused persons
in the light of the goals and objectives of international criminal procedure is a difficult
undertaking. The interrogation of the suspect or accused person by the prosecutor in the
course of the investigation aims at gathering evidence on which basis the guilt or innocence
of the accused person can be established. As such, the procedural norms governing the
questioning of suspects and accused do not seem particularly influenced by any of the
idiosyncratic goals of international criminal procedure.
However, it may also be asked whether the current procedural design of the interrogation
of suspects and accused frustrates or negatively impacts on the pursuit of at least some of
these idiosyncratic goals in any way. A pre-trial investigation designed as an official inquiry
may be preferable to fulfil at least some of the added goals of international criminal
proceedings, such as providing a historical record of the events that occurred. In order to
maximize accurate fact-finding, it may be preferable to have a neutral prosecutor who is
explicitly mandated with a positive obligation to investigate impartially and objectively and
who shies away from certain interrogation techniques, such as the use of deception.
Although the prosecutor of the ad hoc Tribunals should act as an ‘organ of justice’ and not
only as an adversarial party to the proceedings,676 and while the ICC Statute explicitly
states that the ICC prosecutor should investigate incriminating and exonerating
circumstances equally in order to establish the truth,677 some authors are sceptical as to
the possibility of achieving the effective realization of such non-partisan attitudes in
practice.678
The law and practice of international criminal procedures are in compliance with
international human rights law. By requiring the assistance of counsel during the
interrogations of suspects and accused, international criminal procedural law complies with
and, arguably, even surpasses existing human rights norms. Where the law and practice of
the reviewed tribunals recognize the right to remain silent during interrogation, this is in
full compliance with international human rights norms. Concerning what forms of
compulsion during interrogations are prohibited, the case law of the ECtHR does not offer
much guidance.
The law of international criminal procedure is clear on the right of the accused to be
informed that there are reasonable grounds to believe that he or she has committed a
crime, but the law and practice is not consistent regarding the existence of a similar right
for suspects. While human rights requires prompt and detailed information about the
nature and cause of the charge or accusation for anyone charged with a criminal offence,
the precise boundaries of this right are rather vague. The ECtHR and the HRC have
clarified that the requirement that the person is ‘charged’ should not be interpreted in a
formal manner. However, it is difficult, on the basis of human rights law, to determine in the
abstract the exact moment at which a person should be informed about the nature and
cause of the charge. It was also shown that the ECtHR underlined the close link between
the right to be informed about the charge or accusation and the right to prepare a defence.
Hence, in the absence of a clear basis for the existence of an independent, self-standing
right for suspects at the ad hoc tribunals and the SCSL to be informed of allegations, it
could be entertained that such a right underlies the right to counsel. The possibility to
waive the latter right arguably presupposes information about the allegations against the
suspect. Only then can the suspect take an informed decision as to whether to waive or
exercise that right.
The right to have the free assistance of an interpreter during the interrogation is in
compliance with human rights. Where the ICC Statute provides such right whenever the
suspect or accused is questioned in a language which he or she does not ‘fully’ understand
and speak, the protection goes further than the protection offered by the corresponding
human rights provisions.
The analysis of domestic practices revealed differences between inquisitorial and
adversarial criminal justice systems on what constitutes acceptable behaviour during
interrogations and what interrogation practices are prohibited. While the use of deceit is at
odds with the neutral role investigators should play in inquisitorial criminal justice systems,
adversarial criminal justice allows, to a variable extent, certain forms of deception. It was
argued that, where the law and practice of international criminal procedure is silent on the
use of deceit during interrogations, tribunal investigators naturally rely on their domestic
background. This, in turn, may result in investigators holding different views on the issue.
Preferably, this matter should be regulated for the international tribunals.
Lastly, it was shown that the interrogation of suspects and accused persons is not
particularly influenced by the idiosyncratic goals of international criminal procedure. It was
noted that at least some of the idiosyncratic goals may better be served by a procedural set-
up where interrogations are led by a neutral prosecutor, who investigates criminal
responsibility with full objectivity and does not use deception during interrogations.
(p. 253) C. General Rules and Principles of International Criminal Procedure
i. Principles
The prosecutor has the power to question suspects and accused persons.
[Art. 15(c) IMT Charter; Art. 18(2) ICTY Statute, Art. 17(2) ICTR Statute, Art. 15(2)
SCSL Statute, Rule 39(i) and Rule 63 ICTY, ICTR and SCSL RPE; Art. 54(3)(b) ICC
Statute, Rules 111 and 112 ICC RPE, Art. 11(5) STL Statute, Rule 85 STL RPE,
Section 7.4(b) TRCP]
The suspect and accused have the right to be assisted by counsel during interrogation.
[Rule 42(A)(i) and (B) ICTY, ICTR, and SCSL RPE, Rule 63(A) ICTY, ICTR, and SCSL
RPE; Art. 55(2)(c) ICC Statute, Art. 67(1)(d) ICC Statute, Art. 24 new ECCC Law,
Rule 58(2) ECCC IR, Art. 15(e) STL Statute, Rule 65(B) STL RPE, Rule 85(A) STL
RPE]
Prior to the interrogation, the suspect or accused shall be informed of the existence of the
right to be assisted by counsel during interrogation.
[Rule 42(A) ICTY, ICTR, and SCSL RPE, Rule 63 ICTY, ICTR, and SCSL RPE and Art.
21(4)(d) ICTY Statute, Art. 20(4)(d) ICTR Statute and Art. 17(4)(d) SCSL Statute;
Art. 55(2) ICC Statute, Art. 15 STL Statute, Rule 65(A) and 85(B) STL RPE]
The right to counsel can be waived, provided that the waiver is given voluntarily.
[Rule 42(B) ICTY, ICTR, and SCSL RPE, Rule 63(A) ICTY, ICTR, and SCSL RPE; Art.
55(2)(d) ICC Statute; Rule 65(B) and 85(A) STL RPE]
The suspect or accused has the right to remain silent during the interrogation.
[Rule 42(A)(iii) ICTY, ICTR, and SCSL RPE, Rule 63(B) ICTY, ICTR, and SCSL RPE;
Art. 55(2)(b) and Art. 67(1)(g) ICC Statute; Rule 21(d) ECCC IR, Section 6.3(h) and
6.2(a) TRCP; Art. 15(b) STL Statute, Rule 65(A)(iv) and 85 STL RPE]
Prior to the interrogation, the suspect or accused shall be informed about the right to
remain silent.
[Rule 42(A) ICTY, ICTR, and SCSL RPE, Rule 63(B) ICTY, ICTR, and SCSL RPE; Art.
55(2) ICC Statute; Rule 21(d) ECCC IR; Section 6.3 and 6.2 TRCP; Rule 65(A) and
85(B) STL RPE]
The use of coercion, duress, threats, torture and other forms of cruel, inhuman or
degrading treatment during interrogation is prohibited.
[ICTY, ICTR, and SCSL case law; Art. 55(1)(b) ICC Statute; Rule 21(3) ECCC IR;
Section 6.3(i) TRCP, Rule 162 STL RPE]
Prior to interrogation, an accused person (a person against whom one or more charges have
been confirmed) shall be informed in detail, in a language he or she understands, about the
nature and cause of the charges against him or her.
[Art. 21(4)(a) ICTY Statute, Art. 20(4)(a) ICTR Statute, and Art. 17(4)(a) SCSL
Statute; Art. 67(1)(a) ICC Statute; Section 6.3(b) TRCP; Art. 16(4)(a) STL Statute]
Where the suspect or accused cannot understand or speak the language used for the
interrogation, he or she has a right to free assistance of an interpreter during interrogation.
(p. 254) [Rule 42(A)(ii) ICTY, ICTR, and SCSL RPE, Art. 21(4)(f) ICTY Statute, Art.
20(4)(f) ICTR Statute, and Art. 17(4)(f) SCSL Statute; Art. 55(1)(c) and 67(1)(f) ICC
Statute, Art. 24 new ECCC Law; Section 6.3(c) TRCP; Rule 65(A)(iii) and 85 STL
RPE, Art. 15(C) STL Statute]
Normally, interrogations of suspects or accused shall be audio-recorded or video-recorded.
[Rule 43 and 63(B) ICTY, ICTR, and SCSL RPE; Rule 112 ICC RPE, Rule 25 ECCC
IR; Rule 66 and 85(B) STL]
ii. General rules

Prior to interrogation, the suspect or accused should be cautioned that his or her statement
may be used in evidence at trial.
[Rule 42(A)(iii) ICTY, ICTR, and SCSL RPE, Rule 63(B) ICTY, ICTR, and SCSL RPE;
Art. 15(b) STL Statute, Rule 65(A)(iv) and 85(B) STL RPE]
Prior to interrogation, a suspect shall be informed that there are reasonable grounds to
believe that he or she has committed a crime within the jurisdiction of the court.
[ICTY and ICTR case law; Art. 55(2)(a) ICC Statute; Art. 15(a) STL Statute; Rule
65(A)(i) STL RPE]
No adverse inferences may be drawn from the silence of the suspect or accused.
[ICTY case law; Art. 55(2) (b) and Art. 67(1)(g) ICC Statute; Section 6.3(h) and
6.2(a) TRCP; Art. 15(b) STL Statute]
A suspect or accused may be interrogated without the interrogation being audio-recorded
or video-recorded if circumstances prevent such recording from taking place.
[Rule 112(2) ICC RPE; Rule 25(2) ECCC IR]
The questioning of other persons (i.e. persons not suspected of committing a crime) may
also be audio-recorded or video-recorded, particularly where such recording would assist in
reducing subsequent traumatization.
[Rule 112(4) ICC RPE; Rule 25(4) ECCC IR]
D. Recommendations
Some of the rules identified should become principles. First, the ICC should adopt the rule
that every suspect or accused should be cautioned, prior to interrogation, that his or her
statement may be used in evidence. While Rule 40(f) of the OTP Regulations might be
understood to do so, the provision is drafted in more general terms and does not necessarily
cover all aspects of such a rule. Secondly, before questioning starts, every suspect should
be informed that there are reasonable grounds to believe that he or she has committed a
crime within the jurisdiction of the court in order to allow the suspect to make an informed
decision as to whether or not to waive his or her right to counsel. Thirdly, it is good practice
to provide audio or video recording of the questioning of other (vulnerable) persons. Other
tribunals should follow this example because it can help to reduce the traumatizing effects
of the interrogation.
More generally, the previous analysis shows the importance of an objective definition of the
status of the person questioned (witness, suspect, or accused). For example, the prosecutor
should treat a witness as a suspect from the moment any fact arises on the basis of which
there are grounds to believe that the witness has committed a crime within the jurisdiction
of the Court.
(p. 255) During questioning, the use of inducements that coerce the suspect or accused into
cooperating where the person would otherwise have remained silent should explicitly be
prohibited. Where dissimilar approaches were found in national criminal justice systems,
for instance on the use of deception during interrogation, it is important that prosecution
staff be well trained in order to distinguish acceptable from non-acceptable interrogation
methods.
3.1.2 Questioning of Witnesses
i. IMT and IMTFE
It follows from Article 15(c) of the IMT Charter that the four chief prosecutors held the
power to conduct the preliminary examination of witnesses during the investigation.
Similarly, the IMTFE Chief of Counsel could interview witnesses as part of his investigative
functions.679 A parallel power for the defence to interview witnesses as part of its
investigations was not provided for by the IMT nor the IMTFE Charter. However, this power
derived from the defendant’s or accused person’s right to examine witnesses at trial and to
cross-examine witnesses called by the prosecution, as well as from the general power of the
defendant or accused to conduct his defence (through himself or through counsel).680 The
IMTFE Charter, while ensuring the right of the accused to examine the witnesses the
prosecution chose to call, provided that the accused could apply in writing to the Tribunal
for the production of witnesses, falling short of a general right to examine witnesses. The
application had to state the probable location of the witness and the facts proposed to be
proved by the witness, as well as the relevance of these facts to the Defence.681 If granted,
the Tribunal should provide the accused with such aid in obtaining production of the
evidence as the circumstances required.
Absent from the procedural frameworks of the IMT and the IMTFE were procedural
safeguards for witnesses when questioned in the course of the investigation. It is to be
noted that in practice depositions and affidavits taken from witnesses played an important
role in the proceedings before the IMT and the IMTFE. Affidavits were often admitted
regardless of the availability of witnesses at trial.682 Further, nothing prevented the
admission into evidence of out-of-court witness statements, gathered in the course of the
investigation. They were admissible under the IMT and IMTFE Charters.683 At times, the
admission of affidavits and other witness statements conflicted with the right of the
defendants to examine witnesses.684
(p. 256) ii. ICTY, ICTR, and SCSL
Again, the procedural regime that applies depends on the status of the person conducting
the interview.685 In practice, witness statements are usually taken by an OTP investigator,
assisted by an interpreter.686
The question of the uniformity of procedure of the trial forum and the executing state is less
pressing than that regarding the interrogation of suspects or accused persons where
procedural rules on the conduct of witness interviews are scarce. No specific and explicit
procedural guarantees (‘minimum rules’) for witnesses are provided for in international
criminal procedural law.687 Consequently, stronger procedural safeguards may be provided
for under national procedural rules.
b. Admission of out-of-court witness statements at trial
Out-of-court witness statements, resulting from the questioning of prospective witnesses,
have increasingly been admitted into evidence in the proceedings before the ad hoc
Tribunals.688 Their introduction may be problematic as different problems regarding
reliability are associated with out-of-court witness statements: the statements have often
been made years before, are often not taken under oath, they are not subjected to cross-
examination, are taken through interpretation, and they are sometimes unsigned.689 It is of
crucial importance to understand that the ad hoc Tribunals have not adopted a system
resembling inquisitorial justice systems whereby the witness statements are gathered by a
non-partisan judicial officer, who should seek both exculpatory and inculpatory evidence
and put these statements in a dossier for use at trial. Witness statements are prepared by a
party for the purpose of the legal proceedings in which they are tendered and not by an
independent officer.690 They could be considered less reliable than depositions.691
In case the witness is present before the Chamber, the practice of the ad hoc Tribunals is
not to admit prior statements of a witness when that witness has given oral evidence, with
the exception that the party who did not call the witness is allowed, during cross-
examination, to refer to the witness’s prior statements to attempt to impeach the witness’s
credibility by challenging the consistency and reliability of his or her testimony.692 The
party calling the witness can use a prior witness statement when turning a witness into a
hostile witness, with leave from the Chamber.693 Their admission of such statements can
also be allowed in the interests of justice.694 A prior inconsistent written statement can only
be admitted into evidence if the witness was confronted with it and given the opportunity to
explain or deny the alleged inconsistencies with full awareness of what he or she had
previously said.695
(p. 257) Through amendments to Rule 90, the introduction of former Rule 94ter on the
admission of affidavits and Rule 92bis on the admission of written hearsay evidence, the
ICTY Judges made it possible for out-of-court witness statements to be admitted into
evidence, without the witness testifying at trial.696 The use of written evidence has been
prompted by the need to expedite trials.697 Over time new procedural rules have further
increased the possibilities to admit the written evidence of witnesses.698
c. Power to interview witness
The statutory documents provide the prosecutor with the power to question witnesses
during the investigation.699 This power, while being located in the investigation section of
the RPE, clearly extends to the pre-trial stage stricto sensu and to the trial phase.700 The
right for the defence to interview witnesses derives from the principle of ‘equality of arms’,
the right to obtain the attendance and examination of witnesses on the accused’s behalf
under the same conditions as witnesses against him or her, as well as from the right of the
accused to have adequate time and facilities for the preparation for his or her defence.701
No definition of ‘witnesses’ is included in the statutory documents of the ad hoc Tribunals.
However, some provisions hint at its meaning in international criminal procedural law. Rule
90(B) of the ICTY RPE, and Rule 90(C) of the ICTR and SCSL RPEs, refer to someone who
reports the facts of which he or she has knowledge.702
d. The power to compel witnesses to be interviewed
It is important to determine whether a witness can be compelled to be interviewed by
parties during the investigation. The possibility for compelled interviews is a factor which
should be taken into consideration when assessing the safeguards surrounding the conduct
(p. 258) of witness interviews, e.g. the existence of a privilege against self-incrimination for
witnesses.703 What is at issue here is not the possibility for the Chamber to require the
attendance of witnesses before the Chamber, but the prospects for the prosecutor or
defence to interview unwilling witnesses in the course of their respective investigations. It
should be noted that the prospect of compelling a witness to be interviewed by national law
enforcement personnel, following a request to that effect, depends on the national law.
The answer to this question depends on the answer to another question. It should first be
asked whether individuals are under the obligation to cooperate with the Tribunal. Only if
that is the case, may the witness be required to participate in an interview in the course of
the investigation. The Appeals Chamber held in Blaškić that it follows from provisions such
as Article 18(2) of the ICTY Statute (conferring upon the prosecutor certain powers,
including the power to question suspects, victims, and witnesses), as well as from the spirit
and purpose of the Statute, that the Tribunal ‘has an incidental or ancillary jurisdiction over
individuals other than those whom the International Tribunal may prosecute and try’.704
The individuals concerned are those that may be of assistance to the Tribunal in its task of
dispensing criminal justice.705
However, the Appeals Chamber also held that no binding orders (subpoenas) could be
directed to state officials with the exception of state officials acting in their private
capacity.706 However, this prevention against directing binding orders to state officials only
concerns the production of documents in their custody in their official capacity. This should
be distinguished from evidence of what the official saw or heard in the course of exercising
his official functions.707 The functional immunity enjoyed by state officials does not prevent
them from being compelled to give evidence in the latter case. Hence, state officials can
also be compelled to cooperate and to be interviewed in relation to what they have seen or
heard in their official capacity.
The question of whether a similar obligation exists for individuals to cooperate with the
Special Court does not seem to have received attention in the jurisprudence of the SCSL.
Where Rule 54 SCSL RPE closely resembles Rule 54 of the ICTY and ICTR RPEs, it seems
logical that witnesses on the territory of Sierra Leone can be subpoenaed.708
Once it is established that the Chambers of the ad hoc Tribunals, as well as the SCSL, hold
the power to issue binding orders to private individuals, who are consequently under an
obligation to cooperate, it must be asked whether and how a witness can be compelled to
be interviewed by the prosecutor or defence in the course of the investigation. Neither the
(p. 259) prosecutor nor the defence holds the power to compel an unwilling party to submit
to a pre-trial interview.709 Instead, they should seek the assistance of the Chamber which,
pursuant to Rule 54, has the power to subpoena the witness.710 The ICTY and ICTR Appeals
Chambers have confirmed that, based on Rule 54, a subpoena may be issued requiring a
prospective witness to attend at a nominated place and time in order to be interviewed,
where such attendance is necessary (necessity requirement) for the preparation or conduct
of trial (purpose requirement).711 The defendant must establish ‘a reasonable basis for the
belief that there is a good chance that the prospective witness will be able to give
information which will materially assist him in his case, in relation to clearly identified
issues’.712 The test should be applied in a liberal way but any fishing expedition should be
prevented.713 The party must show that it was unable to obtain voluntary cooperation from
the witness, a reasonable attempt is required,714 and it should at least be reasonably likely
that an order would produce the degree of cooperation needed to interview the witness.715
In addition, the evidence should not be obtainable by other means.716 The Appeals Chamber
further underlined that the Chamber should not issue subpoenas lightly.717 A slightly
different test is applied in ICTR jurisprudence. The requirements are that: (1) reasonable
attempts have been made to obtain voluntary cooperation by the witness, (2) the testimony
of the witness should be able to materially assist the case, and (3) the witness’s testimony
must be necessary and appropriate for the conduct and fairness of the trial.718
Interestingly, in the Krstić case, the Appeals Chamber took into consideration the argument
put forward by the defence that ‘in a situation where the Defence is unaware of the precise
nature of evidence which a prospective witness can give and where the Defence has been
unable to obtain his voluntary cooperation, it would not be reasonable to require the
Defence to … force the witness to give evidence “cold” in court without knowing first what
he will say’ and that employing such a method ‘would be contrary to the duty owed by
counsel to their client to act skillfully and with loyalty’.719
(p. 260) e. Procedural norms applying to the questioning of witnesses
Unlike the interrogation of suspects or accused persons, there is no procedural set of norms
applicable to the questioning of witnesses. One commentator noted: ‘The procedure
concerning summons and questioning of … witnesses … appears to have taken place largely
in a non-judicial context.’720 In the absence of such norms, many questions arise about the
actual practice. Indirectly, the jurisprudence of the ad hoc Tribunals and the SCSL on the
admission of prior recorded witness statements and on the disclosure obligations of the
prosecutor provides us with some hints regarding the ‘preferable practice’ for the
questioning of witnesses.721
According to the RPE, the prosecutor may record the statements of the witnesses
interviewed.722 This indicates that the prosecutor is not obliged to do so. However, such a
reading may conflict with the disclosure obligations of the prosecutor. The prosecutor must
make the statements of all witnesses he or she intends to call available to the defence.723 A
precondition for the meaningful compliance with this disclosure obligation seems to be that
witness statements are taken. Moreover, it may be argued that a meaningful defence
investigation and cross-examination at trial presuppose the disclosure of such statements.
However, another approach was taken by the ICTY Trial Chamber in a contempt case.724
According to the Chamber, there is only a duty on the prosecutor to disclose witness
statements insofar as such statements have been taken. The Chamber held that no
obligation on the prosecutor to take witness statements from the witnesses he intends to
call at trial can be derived from Rule 39.725
The Chamber opined that considering the limited scope of the contempt case at hand, fair
trial guarantees are respected and the exercising of the defendant’s right to cross-examine
the witness is guaranteed by the obligation under Rule 65ter(E) to disclose an adequate
summary of the facts on which the witness is expected to testify.726A contrario, one could
understand this reasoning as implying that in other, more complex cases, the Rule 65ter(E)
summaries may not suffice and the taking of witness statements may be necessary in order
to uphold the fair trial guarantees and the defendant’s right to cross-examine witnesses.
Arguably, also the right to adequate time and facilities for the preparation of a defence
requires the taking of witness statements, considering the large and complex nature of the
crimes falling within the jurisdiction of the ad hoc Tribunals and the SCSL.727 Even in the
absence of a clear-cut obligation, it has been the ICTY prosecutor’s constant and consistent
practice for investigators or prosecutors to take statements of all witnesses interviewed.728
Lacking an explicit provision, this practice is important on its own merits and creates
certain expectations regarding the level of diligence that is required from the prosecution
in conducting investigations.
The jurisprudence of the ad hoc Tribunals and the SCSL offers us some guidelines for the
conduct and modalities of witness interviews. In Niyitegeka, the ICTR Appeals Chamber (p.
261) outlined the ‘ideal standard’ for the taking of witness statements.729 Ideally, the
statement should be composed of all the questions that were put to a witness and of all the
answers given by the witness.730 The beginning and the end of the interview, specific events
such as requests for breaks, the offering and accepting of cigarettes or coffee, and other
events which could have an impact on the statement or its assessment should be recorded
as well.731
The recording must be in a language the witness understands. The witness should have the
chance to read the record as soon as possible after the interview has been made, or have it
read out to him or her, and to make the corrections he or she deems necessary. The
statement should be signed by the witness to attest the truthfulness and correctness of its
content to the best of the witness’s knowledge and belief.732 In Zigiranyirazo, the Trial
Chamber stated that from such signature follows the presumption that the statement was
recorded pursuant to the Rules.733 However the Trial Chamber fails to clarify what these
‘Rules’ are. The Appeals Chamber in Niyitegeka further adds that the investigator and
interpreter should sign the statement.734 These detailed guidelines mirror some of the
procedural norms that apply to the interrogation of suspects and accused persons.735
Nevertheless, the Appeals Chamber emphasized that a witness statement that was not
recorded in accordance with this standard does not necessarily render the proceedings
unfair, and may be admitted into evidence. However, the inconsistency with the standard
set out can be taken into consideration when assessing the probative value of the
statement.736
Hence, it remains for the prosecution to determine their witness statement-taking
procedures. While OTP guidelines on the questioning of witnesses presumably exist, they
are internal and not publicly available.737 However, the ICTY considers it good practice that
the statement is recorded in the witness’ own words, that paraphrasing is avoided, and that
the statement is recorded and signed in a language the witness understands.738
Audio or video recordings of witness interviews are not systematically made.739 Such
recordings help to ensure the integrity of the proceedings. However, it has been noted that
certain disadvantages are usually connected to the taping of witness interviews. First and
(p. 262) foremost, witnesses may be reluctant to speak while being recorded.740
Furthermore, transcribing the recordings may create backlogs.741
In principle, the parties are free in their choice of witnesses to interview. The interviews
will normally not be conducted under oath.742 Where a witness is interviewed by national
judicial enforcement officers pursuant to a request for legal assistance, national procedural
law may require the taking of an oath. In the exceptional scenario of a deposition-taking,
the witness can be required to testify under oath in the course of the investigation.743
In the absence of an explicit norm allowing for the witness to be compelled to answer
questions at the investigation stage, no duty to speak can be discerned when a witness is
interviewed by the OTP. No procedural norms allow the sanctioning of the witness in case of
non-cooperation during an interview. A duty to speak exists in principle only in the course of
the trial proceedings.744 Only by having a witness testifying at trial, may the witness be
compelled to answer questions put to him or her.745 Also in the situation where, as
previously discussed, a witness has been compelled to take part in a pre-trial interview, he
or she cannot be compelled to answer questions.746 In practice, witnesses only rarely refuse
to answer a question when interviewed during the investigation. First, a witness who does
not want to testify will normally not voluntarily appear for a pre-trial interview. It should
also be recalled that a Chamber will only subpoena a witness to attend a pre-trial interview
where it is ‘reasonably likely that there would be cooperation if such an order were
made’.747 Besides, most implementing laws allow the questioning of witnesses by the
international prosecutor through an on-site investigation only if the witness agrees to the
interview.748 Of course, if the witness is interrogated by national law enforcement officials
pursuant to a request, national procedures will apply and may require the witness to
answer the questions that are put to him or her.
In addition, it should be noted that while both parties are in principle free to call the
witnesses they want, testimonial privileges may prevent compelling testimony from certain
classes of witnesses at trial. Although there is no jurisprudence concerning requests to
subpoena privileged witnesses to be interviewed pre-trial, a Chamber would in all (p. 263)
likelihood not honour such requests. Arguably, the same approach would be taken
regarding requests to subpoena such persons to give evidence at trial. In case the
prosecutor requests the national law enforcement officials to interview a witness, national
procedural norms recognizing privileges may prevent the taking of evidence.
A privilege against self-incrimination is only provided for witnesses testifying in the
courtroom.749 It allows witnesses to object to making any statement that may incriminate
him or her.750 A right to remain silent during the investigation is only provided for suspects
but not for witnesses. It could be argued that in the absence of a duty to speak for
witnesses in the course of the investigation, as previously noted, a right to remain silent can
be construed. However, in case a witness is interrogated by national law enforcement
officials pursuant to a request, the witness may be required to reply to questions under
domestic law.
Statements that are not given voluntarily, but rather obtained by oppressive conduct,
cannot be admitted into evidence. When there are prima facie indicia of oppressive conduct,
the burden is on the party seeking to have the statement admitted into evidence to prove
that the statement was given voluntarily and was not obtained by oppressive conduct.751
Whether the jurisprudence of the ad hoc Tribunals and the Special Court concerning the
voluntariness of statements by suspects or accused persons applies mutatis mutandis to
statements resulting from witness interviews has not yet been determined in the case
law.752 The ICTY Manual on Developed Practices notes that investigators should be careful
when making promises of witness protection where these may be portrayed by the defence
as an inducement to provide favourable evidence.753
iii. ICC
Both the defence and the prosecution will have to interview witnesses during their
respective investigations. In case the prosecution decides to question a witness, it can,
according to the Statute, either request the responsible national authorities of the state
where the witness is present to conduct the questioning, in accordance with the laws of the
requested state, or it may request to do the questioning itself on the territory of a state.754
Where the prosecutor decides to request the responsible national authorities to conduct the
questioning, the ICC Statute leaves broad discretion for the prosecutor to seek to
participate in the questioning.755
Where the prosecution wants to conduct the questioning itself, different scenarios are
possible. First, where the prosecutor anticipates that no state assistance is required, the
prosecutor may conduct the questioning directly on the territory of the state party pursuant
(p. 264) to Article 99(4) of the ICC Statute, subject to prior notification and consultation.
Such possibility is important, as a witness may feel intimidated and be reluctant to be
interviewed in the presence of the authorities. Witness participation in the questioning must
be voluntary and the taking of evidence directly by the prosecutor must be necessary for
the successful execution of the request. It is also possible to conduct the interview in the
absence of the authorities of the requested state.756 Article 99(4) requires that questioning
in the absence of the authorities should take place only when this is essential for the
execution of the request. The availability of this course may be particularly relevant when
the witness refuses to be questioned while national authorities are present.757 If the request
is directed to the state where the alleged crimes were committed, and there has been a
determination of admissibility pursuant to Articles 18 and 19 of the ICC Statute, the
prosecutor may directly execute the request following all possible consultations with the
requested state.758 In other cases, the prosecutor may execute the request following
consultations with the requested state party and subject to any reasonable conditions or
concerns raised by that state party.
Secondly, Article 57(3)(d) of the ICC Statute allows the prosecutor to conduct the
questioning directly on the territory of a state, when authorized to do so by the Pre-Trial
Chamber in the case of a failed state.
Thirdly, a State may conceivably permit the prosecutor to conduct compulsory measures on
its territory pursuant to a request made under Article 93(1)(l) for any other type of
assistance not prohibited by the laws of the requested state.
The ICC Statute includes several procedural safeguards that apply to the questioning of
witnesses, but there may be some disagreement as to whether all of them apply also when
witnesses are questioned by national authorities or other actors. Article 55(2) of the ICC
Statute expressly provides that the safeguards listed apply when questioning is conducted
by national authorities pursuant to a request under Part 9. On the contrary, Article 55(1)
which contains other more basic safeguards, such as the right not be to compelled to
incriminate oneself or to confess guilt, does not have an express reference to national
authorities. However, Rule 111(2) of the ICC RPE remedies this lacuna by stating that
‘when the Prosecutor or national authorities question a person, due regard shall be given to
Article 55’. Although Rule 111(1), which outlines the formal requirements regarding the
taking of the statement, does not explicitly refer to questioning by national authorities, it
would be good practice to request that these requirements be adhered to also when
national authorities interview a witness on behalf of the Court.759
b. Admission of out-of-court witness statements at trial
Like the ad hoc Tribunals and the SCSL, the ICC allows for the admission of prior recorded
testimony under certain conditions. Generally, the testimony may be admitted only when
this is not prejudicial to or inconsistent with the rights of the accused.760 Prior recorded
witness statements, or audio or video recordings, are admissible at trial if the witness is (p.
265) present for cross-examination.761 In case the witness is not present at trial, the
statement can only be admitted into evidence provided that both the prosecutor and the
defence were present during the interview and had the opportunity to examine the
witness.762 Consequently, it may be important for the prosecution to indicate in a request
for the taking of a witness statement that certain persons should be permitted to be present
and be allowed to assist in the interviewing process.763
Alternatively, where the prosecutor considers an investigation to present a unique
opportunity to take testimony or a statement from a witness, or to examine, collect, or test
evidence, which may not be available subsequently for the purposes of a trial, the
prosecutor may request the the assistance of the Pre-Trial Chamber.764 The Pre-Trial
Chamber can take various measures to enable the taking of such evidence as may be
necessary to ensure the efficiency and integrity of the proceedings and, in particular, to
protect the rights of the defence. The classic example is that of a witness who is terminally
ill. Presumably, the issuance of an order for the statement to be taken from the witness
without the presence and participation of counsel would fall foul of Article 67(1)(e), as well
as the spirit of the analogous procedure described in Rule 68. To this end, Article 56
provides, as one of the possible measures, that the Pre-Trial Chamber may authorize
counsel to participate in the execution of the unique investigative opportunity. The Chamber
may also appoint one of its own members to observe and make recommendations or orders
regarding the questioning of witnesses.765 During the negotiations, the Preparatory
Commission discussed whether this procedure could also apply to vulnerable witnesses
where exposure to repetitive questioning might be harmful, but the issue was left
undetermined and thus remains for the Court to decide.766
c. Power to interview witnesses
The prosecutorial power to question witnesses follows from Article 54(3)(b) of the ICC
Statute. During the preliminary examination stage, the prosecutor may also receive written
or oral testimony at the seat of the Court.767 The defendant’s power to interview witnesses
follows from its rights to obtain the attendance and examination of witnesses on his or her
behalf under the same conditions as witnesses against him or her, to raise defences and to
present other evidence admissible under this Statute, and to adequate time and facilities for
the preparation of the defence.768 Under Article 57, the Pre-Trial Chamber may also, inter
alia, issue such orders and warrants as may be required for the purpose of an investigation
or, upon the request of the defence, issue such orders or seek such cooperation as may be
necessary to assist a person in the preparation of his or her defence. As described
previously, the Chamber can also issue relevant orders where there is a unique investigative
opportunity to take testimony or a statement.769
(p. 266) Article 93 of the ICC Statute obliges states parties to provide assistance, inter alia,
in the identification and whereabouts of persons, and in the collection of evidence,
including testimony under oath and the production of evidence.770 States can also be
requested to assist in the questioning of any person being investigated or prosecuted.771
d. The power to compel witnesses to be interviewed
The Court itself does not posses the power to directly compel the appearance of individuals
for questioning in the context of investigations, nor to compel such witnesses to answer
questions. The Court only has the compulsory power to require witnesses that are before it
in the context of ICC proceedings to provide testimony (i.e. to answer questions).772
Nonetheless, national authorities may be able to require the attendance of a person for
questioning by their own law enforcement officials during investigative activities
undertaken at the request of the Court. For example, the Court may make a request to a
state under Article 93(1)(b) for the taking of evidence by its competent authorities on the
Court’s behalf. Although the Court cannot require the state to compel the person’s
appearance for questioning at the national level, the domestic legislation of the state in
question will typically enable the police or the judiciary to exercise such powers where
required. To take the example of one of the ‘situation countries’ before the ICC, Section 78
of the International Crimes Act of Kenya provides that the taking of evidence by the
national authorities on the Court’s behalf is to be conducted by a high court judge, while
Section 80 provides that the authorities may compel the person to appear before the judge
for questioning.773 This suggests that should the Office of the Prosecutor wish to participate
or take part in the questioning of a person during a domestic process involving the
compelled appearance of a person for questioning, this could be specified as part of the
terms for the execution of the request, by reference to Article 99(1), ‘following any
procedure outlined therein or permitting persons specified in the request to be present at
and assist in the execution process’.
This section does not deal with the more general question of whether the Court has the
ancillary power to require the attendance of a witness for testimony before the ICC during
trial proceedings. Commentators differ in relation to the Court’s powers in this regard,
juxtaposing the apparent minimum duty of states parties of ‘Facilitating the voluntary
appearance of persons as witnesses or experts before the Court’ in Article 93(1)(e), with the
Trial Chamber’s power under Article 64(6)(b) to ‘Require the attendance and testimony of
witnesses and production of documents and other evidence by obtaining, if necessary, the
assistance of States as provided in this Statute’, which would presumably be coupled with a
request under Article 93(1)(l).774
(p. 267) If Chambers of the Court do indeed lack the power to subpoena witnesses who are
not before it to appear to give testimony, the ability of the parties to rely at trial on
interviews conducted during the investigative stage will take on added importance. In this
regard, in order for the resultant recorded testimony to be admissible where the
subsequent presence of the witness at trial cannot be guaranteed, it may be paramount to
secure examination of the witness by both parties during the investigative stage.775
e. Procedural norms applying to the questioning of witnesses
A number of procedural safeguards are provided for witnesses under the ICC Statute.776
The continued lack of certainty over the Court’s powers to compel witness appearance at
trial increases the significance of testimonial evidence obtained outside the courtroom. This
necessitates adequate guarantees to avoid any possible discrepancies between the
procedural regimes that apply to witnesses testifying in the courtroom and to a testimony
collected outside the court.
e.1. Guarantee against self-incrimination
With respect to protecting persons from being compelled to incriminate themselves or from
confessing guilt, the ICC Statute has been hailed for extending human rights protection to
all persons during a criminal investigation, including witnesses.777 This guarantee should
be distinguished from the right to remain silent that is available to suspects and accused
persons. It offers protection to the witness when the evidence is obtained and a violation
requires that compulsion occurred. Hence, persons can incriminate themselves during the
investigation or confess guilt, but may not be compelled to do so.778 No explicit obligation
to inform the witness about the existence of the right, before the start of the questioning, is
provided in the Statute or RPE. However, providing such information is routine practice of
the prosecution and an obligation to do so is included in the Regulations of the OTP.779
Some clarification is necessary regarding the precise scope of the privilege and its
application to national authorities. It may be asked whether, during the course of the
investigation, the guarantee is as unqualified as it may appear at first. For example, Rule 74
of the ICC RPE provides that the Chamber may require a witness who is testifying before
the Court to answer a question that may lead to self-incrimination. A necessary pre-
condition, however, is that the Chamber provides an assurance that the evidence will be
kept confidential, will not be disclosed to the public or any state, and will not be used,
either directly or indirectly, against the person in any subsequent prosecution by the
Court.780 If this rule is applicable to the investigation phase, then the witness who has
agreed to be interviewed can be required to answer certain questions, provided that the
prescribed assurance of confidentiality and immunity from prosecution has been offered.
However, an apparent conflict could then arise between Article 55(1)(a) and Rule 74 of the
ICC (p. 268) RPE. A strict literal reading of Rule 74 indicates that such an assurance may
only be given by a Chamber.781 Consequently, it would appear that Rule 74 can only be
applied by extension during investigations where Pre-Trial Chambers are involved in the
taking of evidence as part of judicial proceedings.782
The position of a witness being interviewed during the investigation differs considerably
from that of a witness testifying in court. In the former situation, there is no possibility for
the investigator or prosecutor to direct the witness to answer a question with an
accompanying sanctioning mechanism.783 Only the Court can sanction a witness for
misconduct consisting of refusing to comply with an order to answer a specific question.784
While the prosecutor cannot give a formal assurance to a witness pursuant to Rule 74, he or
she could nonetheless enter into an agreement with a witness limiting the use of the
statement to solely generating new investigative leads.785 This would not provide a
guarantee of immunity from prosecution, but could nonetheless serve as a method to
facilitate investigations by encouraging lower-level insiders with possibly critical knowledge
to provide information which could assist in the investigation of persons with greater
responsibility.
It is difficult to conceive how the assurances that are available under Rule 74 of the ICC
RPE could apply to a request that has been made for national authorities to take a witness
statement in accordance with Article 93(1)(b) of the ICC Statute. National authorities are in
no position to offer immunity from use and, as such, to effectively prevent further
prosecution by the ICC.
In conclusion, from Article 55(1)(a) follows an unqualified right for witnesses not to be
compelled to incriminate themselves during the investigation.
e.2. Other procedural safeguards
Other procedural rights, including the right to an interpreter and the prohibition of duress,
coercion or threats were discussed at length in the previous section on the interrogation of
suspects and accused. The findings of that section equally apply here.786
As mentioned earlier, Article 55(1) of the ICC Statute provides minimum rights that must be
upheld also when states interrogate witnesses following a request from the Court. This may
seem to prevent the use of a compulsory process by national authorities to obtain a
statement from the witness concerned, since Article 55(1)(b) provides that a person shall
not be subjected to any form of coercion. Yet, Article 93(1)(b) of the ICC Statute has been
interpreted and implemented by a number of states parties as allowing the use of coercive
powers in conducting such an interview.787 Clearly, Article 55(1)(b) should not be
interpreted to prevent, in and of itself, the use of a compulsory process by national
authorities to (p. 269) require the attendance of a person for questioning, as opposed to the
use of compulsion during the course of such questioning.
f. Conduct of the interview
An obligation to record the formal statements made by a witness questioned in relation to
an investigation or proceedings is provided for in the RPE.788 The Rules require the
signature of the person conducting and recording the questioning as well as the signature
of the witness.789 The date, time, and place of the interview, together with all persons
present during the interview should be mentioned in the record.790 If someone refuses to
sign the record, this should be noted as well as the reasons therefor. From the wording of
Rule 111(2) of the ICC RPE, it can be derived that these procedural obligations apply only
to the prosecutor, but not to witness interviews conducted by the defence. Rule 112(4) may
be interpreted as an encouragement to the prosecutor to make an audio or video recording
of the interview (especially of interviews with vulnerable witnesses), although no strict
obligation to do so exists. Where it is possible, pursuant to Article 93(10)(b)(i)(a) of the ICC
Statute, to transmit witness statements to states parties, the practice of the prosecution is
to inform the witness thereof.791
iv. SPSC
a. Power to interview witnesses
The prosecutor was empowered to question witnesses.792 The police could also conduct
witness interviews. It is doubtful that many defence interviews were conducted in practice,
since often no witnesses were called at trial.793 For example, in the Los Palos case, the
defence blamed this on the lack of time and logistical constraints such as a lack of cars to
travel to the districts and to speak with potential witnesses.794
b. Conduct of witness interviews
Few provisions dealt with the conduct of interviews by the prosecutor (or the defence).
Some provisions addressed specific rights afforded to the victims of the crimes alleged.
More specifically, when a victim of the crime was interviewed, the officer conducting the
interview had to inform him or her of the right to be notified of the proceedings at which
the victim has a right to be heard.795 Moreover, in potential cases of sexual assault against
women the interview should be conducted by a female officer, unless the victim did not
object to a different procedure.796 Other provisions prohibited the questioning of some
witnesses in relation to the information that the witnesses had received from the accused
on a confidential basis, such as a priest or monk, lawyer, or medical professional.797 The
actual practice of the SPSC with respect to witness interviews has not been possible to
ascertain.
(p. 270) v. ECCC
a. Power to interview witnesses
A detailed set of provisions regulates the conduct of the questioning of witnesses at the
ECCC. During the preliminary investigation, the co-prosecutors, or the judicial police
officers or investigators at the co-prosecutor’s request, may summon and interview any
person who may provide relevant information on the case.798 When seised, the co-
investigating judges hold the power to question witnesses and to record their
statements.799 The co-investigating judges can delegate this power to judicial police officers
or investigators.800 Less clear-cut is the power they hold to issue an order requesting the
co-prosecutors to also interrogate the witness.801 Such a power, allowing one party to the
proceedings to conduct an investigative action on behalf of the impartial and independent
co-investigating judges, sits uneasily with an inquisitorial procedural model encompassing
the institution of an investigative judge.
Under Cambodian criminal procedure, the prosecutor has the right to participate in the
questioning of witnesses by the investigating judge.802 The Internal Rules limit the presence
of the co-prosecutors to the interrogation of the charged person and to confrontations.803
Fairness considerations seem to have guided this deviation from Cambodian criminal
procedure. Providing one of the parties to the proceedings with the right to be present
during the questioning of witnesses by the Co-Investigating Judge and to put questions to
that witness, although through and following authorization by the co-investigating judges,
may be considered unfair. The defence is not allowed to interview witnesses. It can only
request the co-investigating judges to interview a particular witness.804
b. The power to compel witnesses to be interviewed
The co-investigating judges can decide to summon witnesses to an interview.805 In case the
witness refuses to appear, the co-investigating judges may issue an order requesting the
judicial police to compel the witness.806 A witness who refuses to attend an interview before
the co-investigating judges without a just excuse, is subject to a sanction.807 In addition, a
witness who attends the interview but subsequently refuses to produce evidence may be
sanctioned.
(p. 271) c. Conduct of the interview
Before the start of the interview by the co-investigating judges, the witness has to take an
oath.808 A witness giving false evidence under solemn declaration exposes himself or
herself to a sanction under Cambodian law.809 No audio or video recording is prescribed.
However, the recording procedure which applies to the interrogation of suspects and
charged persons may also be applied to other persons, ‘in particular where the use of such
procedures could assist in reducing the subsequent traumatisation of a victim of sexual or
gender violence, a child, an elderly person or a person with disabilities in providing their
evidence’.810 This may be understood as a signal to apply the recording procedure for the
interrogation of suspects and charged persons as widely as possible. Live testimony by
audio or video-link is possible in the course of the judicial investigation,811 and a special
procedure applies in case a deaf or mute witness is interrogated.812
A written record should be made of every interview and signed or fingerprinted by the
interviewee after reading.813 If necessary, the record will be read back and if the person
refuses to sign, this should be noted in the record. The Internal Rules do not provide further
indications as to how these written records should be taken. According to the Cambodian
code of criminal procedure, they are taken in the form of a procès-verbal.814
Special procedural norms regulate the questioning of a civil party by the co-investigating
judges. Being a party to the proceedings, the civil party should be summoned five days
before the interview and have access to the dossier within this timeframe.815 The lawyer of
the civil party should be present during the interrogation, unless this right is properly
waived.816 Civil parties can request to be interviewed, or request the co-investigating
judges to interview other witnesses, but the judges have discretion as to whether or not to
grant the request.817 No other parties are present during this interrogation except where
there is a confrontation of the civil party with another party or a witness. During a
confrontation, the other parties present may request the co-investigating judges to put a
question to the civil party, but the co-investigating judges may deny such a request.818
While the co-investigating judges normally interrogate civil parties, investigators can do so
under certain conditions and upon the issuance of a rogatory letter.819
d. Procedural norms applying to the questioning of witnesses
The ECCC IR provide for a right against self-incrimination for witnesses.820 All witnesses
who are interviewed have a right to refuse to answer questions that may tend to incriminate
(p. 272) them, not only in front of the co-investigating judges, but also in front of the co-
prosecutors in the course of the preliminary investigation.821 Notification of this right prior
to the commencement of the interview is required.822 Whereas the privilege is unqualified
during any preliminary investigation, the witness can be required to answer a question by
the co-investigating judges under certain conditions.823 In case the co-investigating judges
consider that a witness should be required to answer a question, they may assure the
witness that the response: (1) will be kept confidential and not be disclosed to the public;
and/or (2) will not be used either directly or indirectly against that person in any
subsequent prosecution by the ECCC. The witness is not required to answer the question if
no assurance is given. In deciding whether to provide assurances, the co-investigating
judges shall consider a number of circumstances, as outlined in the Internal Rules.824 The
Internal Rules further outline the gamut of measures at the co-investigating judges’
disposal to give effect to the assurances provided.825
Exceptions from the general obligation to take the oath before being questioned by the co-
investigating judges exist for certain witnesses on the basis of their close connection to the
charged person, accused, civil party, or victim (father, mother, ascendants, descendants,
brothers, sisters (in law or not), husband, or wife (divorced or not)) or on the basis of their
age (younger than 14 years old).826
The right to the assistance of counsel for witnesses is limited to the situation where an issue
of self-incrimination arises during the proceedings.827 In such a case, the testimony should
be suspended and a lawyer provided. Besides, every witness may request an interpreter
where needed.828
Also concerning witnesses ‘no form of inducement, physical coercion or threats thereof,
whether directed against the interviewee or others, may be used in any interview’.829
Available sanctions are the non-admission of the statement recorded and disciplinary action
against the persons involved in such conduct. A not yet settled question is how far the
prohibition of inducements prevents the interviewer from making promises of protective
measures to witnesses.
vi. STL
a. Power to question witnesses
The STL prosecutor holds the power to summon and question witnesses and record their
statements.830 The prosecutor can seek support from any person, entity, or state in order to
conduct the questioning of witnesses.831 Both the prosecutor and the Head of the Defence
Office, at the request of the defence, can request the Lebanese authorities or other states to
have a witness questioned themselves, or by their staff, or jointly.832 The prosecutor may be
(p. 273) assisted by Lebanese authorities as appropriate.833 Parties can also request the
pre-trial judge to authorize the questioning of witnesses in Lebanon.834 The statutory
documents do not set forth any conditions for such authorization.
The pre-trial judge plays an important role in assisting the parties with the gathering of
evidence. This greater role should be understood in the light of the autonomous character
of the STL Pre-Trial Judge, who cannot sit on the Trial Chamber and consequently does not
run the risk of having his or her impartiality questioned because of exposure to the
evidence at the pre-trial stage.835 Although the statutory instruments do not confer any juge
d’instruction-like powers on the pre-trial judge, the RPE empower the pre-trial judge to be
proactive.836
First, the possibility exists for the pre-trial judge to assist the parties, after the indictment
has been confirmed, if a unique opportunity arises to gather evidence or take a statement, a
possibility that is clearly based on the ICC model.837 The parties may make a request to that
extent to the pre-trial judge. In exceptional cases, the pre-trial judge may summon and
interview witnesses or request the competent national authorities to do so, if the parties or
the participating victims, on a balance of probabilities, are unable to conduct the interview,
and provided that the measures are in the interests of justice.838 The pre-trial judge may
also act proprio motu.839
An innovation is the competence of the pre-trial judge to question anonymous witnesses, at
the request of a party or a victim.840 This may take place when there is a serious risk that
the witness or a close relative of the witness would die or suffer grave physical or mental
harm as a result of his or her identity being revealed, and when other protective measures
would be insufficient. Another situation is where there is a serious risk that imperative
national security interests might be jeopardized should the identity or affiliation of the
witness be revealed. The detailed procedure provides for questioning without the parties
and the legal representatives of the victims being present. Nevertheless, the parties and
victims may request the pre-trial judge to put certain questions to the anonymous
witness.841 They will be provided with a provisional transcript, which may be the basis for
additional questions.842 The final version of the transcript will then be given to the parties
and the legal representatives, together with an opinion by the pre-trial judge on the veracity
of the witness statement and on the potential for any serious risk in case the name or
affiliation of the witness is revealed.843
Like other international criminal tribunals, the RPE includes a procedure for the taking of
depositions by the pre-trial judge, acting at the request of a party or proprio motu, if there
is reason to believe that the evidence would later not be available for trial.844 The other (p.
274) party and the legal representatives of the victims should have an opportunity to put
questions to the witness. Deposition may also be organized by means of a video-
conference.845
b. Admissibility of out-of-court statements
As a rule, the principle of oral statements applies, but in some instances, where the
interests of justice so allow, witness statements may be delivered and admitted into
evidence in written form.846 First, witness statements containing testimony which does not
relate to individual acts or conduct of the accused as charged may be admitted even if the
witness is not present and cannot be cross-examined.847 To be admissible, the statement
should be signed (by the witness, the interviewer, and by the counsel, judge or prosecutor, if
present) and the time, date, and place of the interview, and the names of persons who were
present, should be identified. It should be indicated if the statement is not signed by the
witness as well as the reason for this.848
Secondly, witness statements relating to individual acts or conduct as charged in the
indictment may be admitted only if the witness is present and available for cross-
examination. The witness must attest that the written statement reflects what he or she
would tell if examined, and that the written evidence or transcript accurately reflects his or
her declaration.849 The Trial Chamber may also decide that a witness statement that does
not relate to individual acts or conduct of the accused is admissible only if the witness
appears and is available for cross-examination.850
Further, statements of a person who is dead, cannot be traced, or is, for good reason,
unavailable to testify, may be admitted, as well as statements of anonymous witnesses.851
Regarding the latter category, the RPE adds that a conviction may not solely, or to a
decisive extent, be based on the statements of anonymous witnesses.
c. Procedural norms on the conduct of the questioning of witnesses
Given the aforementioned possibilities to rely on witness statements at trial, the absence of
detailed guidelines or directions in the RPE on the taking of witness statements is striking.
Nevertheless, the President of the Tribunal issued a practice direction on the procedure to
be followed for the taking of depositions for witness statements to be admissible in lieu of
oral evidence.852 The Practice Direction also prescribes the procedure for the taking of
depositions by the pre-trial judge, including the order of the examination of the witness. The
pre-trial judge may ask questions at any time and the accused can normally be present.853
Audio-visual registration is also provided for.854 For statements to be admitted in lieu of oral
evidence, the Practice Direction stipulates, inter alia, that the party requesting the
questioning should ensure that the witness interviewed will have the opportunity to read (p.
275) the statement and make corrections, whereafter the final statement should be read
back to the witness and signed.855
A qualified privilege against self-incrimination is only provided for the trial. The Trial
Chamber may compel the witness to answer, provided that the testimony is not used in any
subsequent prosecution against the witness other than regarding contempt or false
evidence.856
The pre-trial judge may summon a witness to appear.857 A duty to speak and accompanying
power to compel the witness to answer a question (including an exception in case of risk of
self-incrimination) apply only to witnesses testifying before a Chamber.858 However, a
witness making a false statement during the investigation, including statements made
before the pre-trial judge, national authorities, or the parties, may be sanctioned where the
person knows or has reason to know that that statement may be used as evidence in the
proceedings before the Tribunal.859 However, statements that are not made ‘under solemn
declaration’ may be sanctioned only if the statement is accompanied by a formal
acknowledgement by the witness that he or she has been made aware of the potential
criminal consequences of making a false statement.860
vii. Synthesis
Some conclusions can be drawn from the comparative overview. All tribunals under review
provide that the prosecutor holds the power to question witnesses. At the ECCC, this power
is limited in principle to the preliminary examination. In the course of the judicial
investigation, the co-investigating judges are empowered to interview witnesses. In the
absence of an express power for the defence to question witnesses, such a power derives
from the accused’s right to examine witnesses, the principle of equality of arms, and the
right of the accused to have adequate time and facilities for the preparation of his or her
defence. One important exception should be noted: at the ECCC, the defence is prohibited
from interviewing witnesses and can only undertake preliminary inquiries in order to
exercise its right to request the co-investigating judges to undertake investigative actions
(and interview witnesses).
The different tribunals admit, to a varying extent, out-of-court statements resulting from
pre-trial witness interviews at trial.
While the ad hoc Tribunals and the SCSL can compel witnesses to be interviewed by the
prosecutor or the defence during the investigation (under certain conditions), the ICC lacks
the power to directly compel the appearance of individuals for questioning in the context of
investigations. Also the ECCC and the STL recognize the possibility to compel witnesses to
be interviewed by the co-investigating judges (ECCC), or by the defence, prosecutor, or pre-
trial judge (STL).
With the exception of the SPSC, the law or practice of the tribunals obliges the prosecutor
to make a record of every interview. At the ad hoc Tribunals and the SCSL, the requirement
derives from the prosecutor’s disclosure obligations as well as from the defendant’s rights
to cross-examine witnesses and to have adequate time and facilities for (p. 276) the
preparation of a defence. Unlike interrogations of suspects and accused, there is no
requirement that witness statements be audio or video recorded. Nevertheless, the
procedural framework of the ECCC and the ICC encourage such recordings in relation to
vulnerable witnesses. The STL procedure provides for audio-visual recordings only for
depositions and where witness testimony is collected by national authorities, e.g. in case
the state does not allow the taking of a deposition upon the order of the Pre-Trial Judge or
by video link.
Only the procedural frameworks of the ICC and the ECCC provide for detailed procedural
rules regulating the taking of witness statements. The case law of the ad hoc Tribunals only
provides guidelines regarding the ‘ideal standard’. Nevertheless, detailed and standardized
procedures for the taking of witness statements are important for introducing such
statements in evidence.
The ICC Statute explicitly protects witnesses from being compelled to incriminate
themselves or from confessing guilt. The Internal Rules of the ECCC provide for a right
against self-incrimination of witnesses that applies both during the preliminary
investigation and the judicial investigation. Such protection may be of special importance in
the context of prosecuting mass crime, given the reliance on insider witnesses. Where the
witness is questioned by the prosecutor in the course of the investigation, the right is
unqualified. In the course of the ECCC judicial investigation, the right is qualified and the
witness may be compelled to answer a question after assurances of confidentiality and
immunity from use are provided. Unlike the ECCC, the ICC Statute does not explicitly
require that the witness should be informed about the existence of the right prior to the
commencement of the interview, but such information has been provided for in the
Regulations of the Office of the Prosecutor.
In line with the findings on the interrogation of suspects and accused persons, the use of
oppressive conduct (including coercion, duress, and threats) in the course of witness
interviews is prohibited.861
Lastly, a right to the free assistance of an interpreter during the questioning of witnesses
applies. The ad hoc Tribunals and the SCSL do not provide for such right. However, it may
be assumed that witnesses are provided with an interpreter if language problems arise. The
ICC Statute requires a ‘competent’ interpreter and interpretation if the questioning is done
in any language other than one that the witness fully understands and speaks.
B. Evaluation
i. Human rights
a. The privilege against self-incrimination for witnesses
The right of an accused person not to be compelled to testify against him or herself, or to
confess guilt, has already been discussed.862 The right is laid down in Article 14(3)(g) of the
ICCPR. In the absence of an equivalent formulation in the ECHR, the ECtHR read the nemo
tenetur principle into Article 6 of the Convention.863 It may be asked to what extent
witnesses are also covered by this protection. Notwithstanding the ‘substantive’ rather than
‘formal’ understanding of a ‘person charged’ by the ECtHR, it is difficult to see how this
provision can be applied to witnesses interviewed during the investigation stage of
proceedings.
(p. 277) However, it has been argued that as soon as somebody is confronted with questions
or with a request for documents that could result in self-incrimination, such a person is de
facto ‘charged’ within the autonomous meaning of Article 6.864 There may be situations
where a person is interrogated as a witness, whereas, in the autonomous meaning of Article
6(1) of the ECHR, that person should be considered ‘charged’ and should consequently be
protected against improper compulsion by the authorities. Consequently, witnesses may
also benefit from the protection of the nemo tenetur principle. This argument is supported
by the case law of the ECtHR. The Court applies the ‘substantially affected’ criterion to
determine whether or not the witness should be considered ‘charged’ within the meaning of
Article 6(1) of the ECHR.865
Moreover, at least two authors have argued, by referring to the character and purpose of
Article 14(3)(g) of the ICCPR, that the drafters intended to codify the nemo tenetur
principle as a general principle of law for the first time and were guided by the Fifth
Amendment of the US Constitution. The drafters were not specifically thinking in terms of
the procedural distinctions between investigation and trial, or witnesses, suspects, and
accused persons.866 Hence, the right should be understood as applicable to witnesses as
well.
Remarkably, the existence of a privilege against self-incrimination for witnesses was
considered and dismissed by one ICTY Judge in a dissenting opinion in the Tadić case.867 No
such privilege for witnesses can be found in the ICCPR, nor has such right been recognized
in the jurisprudence of the ECtHR.868
b. Right to examine witnesses
Two different aspects of the right to examine witnesses are relevant: (i) the right to
examine, or to have examined, the witnesses against him or her, and (ii) the right to obtain
the attendance and examination of witnesses under the same conditions as witnesses
against him or her. The rights are set forth in the ICCPR, ECHR, and ACHR, although the
latter limits the application of the right to examine witnesses to witnesses ‘present in the
court’.869 The African Charter on Human and Peoples’ Rights does not mention this right.
It follows from the consistent case law of the ECtHR that while, in principle, evidence will
be produced at the public hearing, with a view to the adversarial argument, infringements
to this principle can be allowed as long as they do not infringe the rights of the accused.
Exceptions to the ability to question witnesses in open court are possible. While the
defendant should be given the opportunity to challenge and question witnesses against him
or her, this opportunity can either be given when the witness makes the statement or at a
later stage of the proceedings.870 The accused may thus be given the possibility to examine
the witness outside the courtroom or to have the witness examined (e.g. by a national
judge).871 However, this does not lead to a right for the accused to be present at the
moment (p. 278) when the witness makes the statement. The jurisprudence of the
ECommHR has confirmed that no right exists under Article 6(3)(d) of the ECHR for the
accused to be present during the questioning of witnesses during the investigation and to
put questions to those witnesses (directly or indirectly), provided that the witnesses are
again heard and examined at trial.872
On certain occations, it may prove necessary for the judicial authorities to refer to
depositions taken in the course of the investigation.873 If a conviction is based solely or
decisively on depositions concerning a witness who has not been examined by the defence,
either in the course of the investigation or at trial, the right to a fair trial is violated.874
There is no unlimited right to secure the witnesses’ appearance; it is normally for the
national court to decide on the necessity or advisability of hearing a particular witness.
Consequently, witness statements resulting from pre-trial interviews may be admitted
without a possibility for the defence to examine that witness as long as the finding of guilt is
not based solely or in a decisive manner on these statements. Hence, Rule 92bis of the
ICTY, ICTR, and SCSL RPEs seems to be in line with the ECtHR’s jurisprudence by only
allowing the admission of witness statements, without a possibility of cross-examination,
that go to proof of a matter other than the acts or conduct of the accused as charged in the
indictment.875 No conviction may solely, or in a decisive manner, be based on witness
statements admitted under other Rules allowing the admission of witness statements
without the possibility of cross-examination: Rule 92ter (unavailable persons) and Rule
92quinquies (persons subjected to interference). At the ICC, Rule 68(a) of the ICC RPE and
the requirement that both parties are present for a statement to be admissible is more
protective of the defendant’s rights than the aforementioned human rights law
jurisprudence.876
In the S.N. v. Sweden case, no violation of the right to examine witnesses was found by the
ECtHR where a witness (whose statements were virtually the sole pieces of evidence) did
not testify at trial and the defence counsel was absent during the pre-trial police interviews.
A first interview was conducted when the defendant was not yet aware of the suspicions
against him. Furthermore, the defence counsel had consented not to be present during a
second interview and to the manner in which the interview was conducted rather than to
ask for the postponement of the interview.877 The outcome shows that defence counsel
should exercise the necessary diligence.878
The right to question a witness can also be exercised through a rogatory commission. In the
Solakov case, the ECtHR found no violation of Article 6(3)(d) of the ECHR although some
witness statements which played an important role in the finding of guilt were taken in the
US following a rogatory letter and in the absence of the defendant’s counsel.879 The counsel
of the defendant had been summoned but they chose not to attend the hearing, nor did they
expressly provide any question to be put to the witness.880
(p. 279) ii. Comparative criminal procedure
In civil law criminal justice systems, interrogation transcripts, obtained from witnesses by
state agencies (directed by the prosecutor or juge d’instruction) during the investigation,
are put in the case file (dossier). They have been prepared by criminal law personnel, often
in a summarized, brief form instead of full, literal transcripts containing ‘behavioural cues
and traits’.881 The out-of-court witness statements included in the case file can normally be
considered by the judges during the trial proceedings.
Private witness interviews are looked at with considerable suspicion. Where a witness has
been interviewed by private lawyers, the witness may have been ‘tampered’ with.882
Damaška links this prejudice to the ‘ethos of official exclusivity’, a distinctive feature of civil
law criminal justice systems.
Besides, in inquisitorial criminal justice systems, citizens are considered ‘suppliers of
information’. Consequently, there is less support for privileges against self-incrimination
and testimonial privileges.883 They hamper fact-finding precision and interfere with the
search for the truth. In fact, there is a duty for citizens to submit to the interrogation
process and to testify.884
With the exception of the SPSC and the ECCC, the procedural structure of the investigation
resembles the common law criminal justice systems more, insofar as each party is
responsible for its own evidence gathering and processing. Pre-trial interviews with
witnesses are traditionally conducted by the parties. Witnesses are associated with one of
the parties. Common law criminal justice systems characteristically favour live witnesses.
Statements of pre-trial witness interviews are not set out in a case file, allowing superior
review.885
In line with the findings concerning the interrogation of suspects and accused persons, it is
argued here that the questioning of witnesses is not particularly influenced by any of the
goals of international criminal justice. Nevertheless, it should be noted that the analysis of
the law and practice of the different tribunals has established the distinction between those
tribunals where witnesses are interviewed during the investigation by the parties to the
proceedings and those tribunals where the witnesses are interrogated by a neutral official
in charge of the investigation.
The former procedural arrangement is to be found at the ad hoc Tribunals, the ICC, and the
STL. It could be argued that where the two parties gather evidence and identify and
interview their witnesses, there is an inherent risk that unfavourable witness evidence is
disregarded and no statement is recorded. A desire to limit the risks of partisan
investigative strategies is apparent from the inclusion in the ICC Statute of an express duty
of objectivity for the prosecutor.
In a procedural scheme encompassing an official and neutral investigation, by contrast, all
statements resulting from the interrogations of witnesses are put in the case file and will
normally be available for the judges’ consideration at trial. The judges can consider the
witness statements prior to the commencement of the trial and decide what witnesses
should be heard orally and what pre-trial witness statements can be admitted in written
form.886
(p. 280) Some goals of international criminal procedure, including the goal of providing a
historical record, may be hampered by partisan selection of witnesses. Hence, a procedural
arrangement whereby an investigation is structured as an official inquest and witness
statements are put in a case file may be preferable. However, the specific nature of the
crimes concerned may effectively prevent the consideration of all evidence, even where a
neutral official is in charge of the investigation. As noted by Damaška, large and complex
cases in particular will inevitably lead to evidence-selection.887 If this is so, facts that are
relevant from a historical perspective may remain unexamined.888 Moreover, other goals of
international criminal procedure, such as transparency, may be better served by an
adversarial process.
In conclusion, the goals of international criminal procedure do not allow us to make a clear
choice for one of the two procedural arrangements that were found in the law and practice
of the tribunals under review.
iv. Synthesis
From the previous analysis, a number of conclusions can be drawn. First, the law and
practice of the different tribunals under review do not raise important human rights
concerns. It is unclear whether human rights law requires the application of the privilege
against self-incrimination to the questioning of all witnesses. Further, while it follows from
international human rights law that the right to examine witnesses does in principle require
that the defendant should be given the opportunity to challenge and question witnesses in
open court, certain exceptions are permissible. The right to a fair trial will be violated
where a conviction is based solely or in a decisive manner on depositions from a witness
that were not examined by the defendant, either at trial or during the investigation. The
requirements for the admission of witness statements resulting from pre-trial interviews at
the tribunal level are more protective of the defendant’s rights than what is required under
human rights law.
Secondly, comparative criminal procedure reveals an important distinction between
inquisitorial and adversarial criminal justice systems. In inquisitorial criminal justice
systems, on the one hand, the interrogation transcripts resulting from the interrogation of
witnesses in the course of the investigation are put in the case file (dossier) and can be
considered by the judges at trial. On the other hand, in adversarial criminal justice systems,
statements taken in the preliminary criminal investigation can only exceptionally be relied
upon at trial and risk being excluded as inadmissible hearsay or as having low probative
value, although this does not affect the duty to disclose all exculpatory evidence to the
defence. Comparative criminal procedure does not allow us to draw any conclusions on the
law and practice of the tribunals under review.
Thirdly, it was argued that the procedural norms and practice relating to the questioning of
witnesses do not seem to be particularly influenced by any of the idiosyncratic goals of
international criminal procedure. Some goals, including the goal of establishing a historical
record, may be better served by a system which would prevent a selective approach to
witnesses and ensure that all witness statements are in principle available to the judges at
(p. 281) trial. Hence, it could be argued that a structure like that of an official inquest, in
the course of which witness statements are taken and put in the case file, may be
preferable. However, it was concluded that it follows from the large and complex nature of
the cases that fall within the jurisdiction of the tribunals under review that selection of
witnesses may well be inevitable.
C. General Rules and Principles
i. Principles
The prosecutor has the power to question witnesses.
[Art. 18(2) ICTY Statute, Art. 17(2) ICTR Statute, Art. 15(2) SCSL Statute; Rule 39(i)
ICTY, ICTR, and SCSL RPE; Art. 54(3)(b) ICC Statute; Rule 50(4) IR ECCC
(preliminary examination); Art. 11(5) STL Statute and Rule 61(i) STL RPE; Section
7.4(b) TRCP]
The prosecutor shall make a record of the witness interview.
[Rule 111 ICC RPE; Rule 55(7) IR ECCC; ICTY, ICTR, and SCSL case law]
The use of coercion, duress, threats, torture and other forms of cruel, inhuman or
degrading treatment during witness interviews is prohibited.
[Art. 55(1)(b) ICC Statute; Rule 21(3) ECCC IR; Section 34.2 TRCP, Rule 162 STL
RPE]
ii. General rules

In the course of the investigation, the defence may interview witnesses.
[Art. 16(e) IMT Charter; Art. 9(d) and (e) IMTFE Charter; Art. 21(4)(b), (e) ICTY
Statute; Art. 20(4)(b) and (e) ICTR Statute; Art. 17(4)(b) and (e) SCSL Statute, Art.
67(1)(b) and (e) ICC Statute]
D. Recommendations
Unlike interrogations of suspects and accused, witness interviews do not have to be audio
recorded or video recorded at the international criminal tribunals. Nevertheless, the ECCC
and ICC procedural frameworks encourage such practice, especially in relation to
vulnerable witnesses. The STL only provides for the audio-visual recording of witness
interviews where a deposition is taken by the pre-trial judge or by the national state. It is
recommended that audio or video recordings should be made of witness interviews as far as
practicably possible, while recognizing the increased burdens this may impose on the
investigative process given that the contents thereof may not be readily amenable to textual
search analysis without a separate written transcription being created. Nonetheless, such
recordings may enhance the transparency of the witness statement recording process and
enable control over the conduct of witness interviews. To a certain extent, this requirement
may remedy some of the problems (e.g. translation issues) linked to pre-trial interviews of
witnesses.
As pre-trial witness statements are increasingly allowed in evidence at trial, clear and
public guidelines should be available for all courts outlining the procedure for the conduct
of witness interviews and the taking of witness statements. These guidelines would enhance
the transparency of the questioning and statement-recording processes.
(p. 282) The privilege against self-incrimination for all witnesses during the investigation
phase should become a principle. The status of the person interviewed may change. A
person who is interviewed as a witness may later become a suspect. Providing witnesses
with a privilege against self-incrimination takes this situation into account and ensures
protection against self-incrimination at the early stages of the investigation. Hence, the
model set by the ICC and the ECCC should be followed by other similar criminal tribunals.
Only the ECCC’s procedural framework and the ICC Regulations of the Office of the
Prosecutor expressly require the witness to be informed of the privilege against self-
incrimination prior to the commencement of the interview. While no such obligation appears
to follow from human rights law, recognizing this requirement as a principle would ensure
the effective realization of this right.
3.2 Non-Custodial Coercive Investigative Acts


a. DIRECT ENFORCEMENT V. REQUESTS FOR JUDICIAL ASSISTANCE 283

b. FORMAL AND MATERIAL CONDITIONS FOR THE USE OF COERCIVE MEASURES 284
b.1. Judicial authorization 284

b.2. Principle of proportionality 285
b.3. Necessity (subsidiarity)—specificity 286
b.4. Threshold for coercive action 286
c. SEARCH AND SEIZURE OPERATIONS 287

d. TRACING, FREEZING, AND SEIZURE OF PROPERTY, PROCEEDS, OR
INSTRUMENTALITIES OF THE CRIME 289
e. INTERCEPTION OF COMMUNICATIONS 290
f. EXAMINATIONS OF BODY AND MIND 291
iii. ICC 292
a. DIRECT ENFORCEMENT V. REQUESTS FOR JUDICIAL ASSISTANCE 292

b. FORMAL AND MATERIAL CONDITIONS FOR THE USE OF COERCIVE MEASURES 293
b.1. Judicial authorization 293

b.2. Principle of proportionality 293
b.3. Necessity—specificity 293
b.4. General threshold for the use of coercive measures 294
c. SEARCH AND SEIZURE OPERATIONS 294

d. IDENTIFICATION, TRACING, AND SEIZURE OF PROPERTY, PROCEEDINGS, ASSETS,
AND INSTRUMENTALITIES OF CRIMES 295
e. INTERCEPTION OF COMMUNICATIONS 297
f. EXAMINATIONS OF BODY AND MIND 298
iv. SPSC 298
a. FORMAL AND MATERIAL CONDITIONS 298

b. SPECIFIC COERCIVE ACTS 299
v. ECCC 299

vi. STL 301

vii. SYNTHESIS 302
B. EVALUATION 303
i. HUMAN RIGHTS LAW 303
a. REQUIREMENT OF JUDICIAL AUTHORIZATION 303

b. REQUIREMENT OF PROPORTIONALITY 304
c. PRIVILEGE AGAINST SELF-INCRIMINATION 305
d. INHUMAN AND DEGRADING TREATMENT 306
a. REQUIREMENT OF JUDICIAL AUTHORIZATION 306

b. GENERAL THRESHOLD 308
c. PROPORTIONALITY 308
iv. SYNTHESIS 310
C. GENERAL RULES AND PRINCIPLES OF INTERNATIONAL CRIMINAL PROCEDURE 311
i. PRINCIPLES 311

D. RECOMMENDATIONS 311
(p. 283) A. Law and Practice of International Criminal Tribunals

i. IMT and IMTFE
The procedural frameworks of the IMT and the IMTFE did not explicitly confer compulsory
investigative powers on the chief prosecutors or the chief of counsel. However, in practice,
searches and other coercive investigative acts were conducted by the prosecution and were
considered to be executive processes.889 No material, substantial, or formal requirements
for the use of the coercive investigative acts, such as the obligation to seek judicial
supervision, were provided for under the IMT or IMTFE Charter.
a. Direct enforcement v. requests for judicial assistance
The broad investigative powers at the prosecutor’s disposal include the possibility to rely on
coercive measures in the course of the investigation. It needs to be clarified whether the
prosecution can directly execute coercive measures on the territory of a state or whether it
should direct a request to the competent national authorities. In the Kordić and Čerkez
case, ICTY Trial Chamber III held that the execution of coercive measures by the prosecutor
encompassing the taking of enforcement action, directly on the territory of Bosnia
Herzegovina, was ‘perfectly within the powers of the Prosecution provided for in the
Statute’.890 Hence, the direct enforcement of coercive acts is possible without directing a
request for legal assistance to the national authorities concerned. Nevertheless, in Blaškić
the Appeals Chamber clarified that normally the prosecutor should rely on the cooperation
of the competent judicial or prosecutorial authorities of the state concerned, except when
the prosecutor is authorized to execute the coercive measures directly on the territory of
the state by national law or special agreement.891 However, in the states or entities of the
(p. 284) former Yugoslavia, coercive measures can be executed directly by the Tribunal as
part of its inherent powers.892
b. Formal and material conditions for the use of coercive measures
b.1. Judicial authorization
The execution of coercive powers by the prosecutor of the ICTY, ICTR, or SCSL does not
expressly require any form of judicial authorization. Nonetheless, the statutory documents
of the ad hoc Tribunals and the SCSL could be interpreted as providing for an obligation to
obtain a judicial warrant. Indeed, from the reading together of Rules 39(iv) and 54 of the
ICTY, ICTR, and SCSL RPEs, one may conclude that a warrant by a judge or Trial Chamber
‘is necessary for the conduct of the investigation’.893 However, such an interpretation is not
applied in practice. Illustrative of this is the following conclusion by the ICTY Trial Chamber
in Stakić: ‘there appears to be no identifiable rule of public international law according to
which it is mandatory to request a judge’s warrant before conducting a search and
seizure’.894
The sparse accessible jurisprudence of the ad hoc Tribunals reveals the following practice.
Normally, no request for a judicial warrant or order is made to a Chamber or judge of the ad
hoc Tribunals. Instead, a prosecutorial request to take or execute lawful coercive measures
is directed to the national authorities concerned.895 Whether a judicial authorization needs
to be obtained by the national authorities before such coercive action is initiated depends
on national law, including special agreements that may have been concluded with the
international criminal tribunal concerned.896 Exceptionally, in cases where cooperation by
the national authorities cannot be ascertained, the ICTY prosecutor has obtained a judicial
warrant by the Tribunal before resorting to its coercive powers. For example, in the
Karadžić case, the prosecutor sought and obtained a warrant from an ICTY judge for a
search operation in the premises of the Public Security Center (CJB) on the territory of
Bosnia and Herzegovina.897
The ICTY Manual on Developed Practices confirms a practice of requesting judicial
authorization to execute a search and seizure operation only ‘in areas protected by (p. 285)
uncooperative local authorities’.898 In accordance with the already mentioned Blaškić
decision, the ICTY considers that coercive measures are directly enforceable in the states or
entities of the Former Yugoslavia.899 In these situations, it appears to be the practice of the
prosecutor to obtain the authorization by a judge of the ICTY before executing coercive
measures.
It is difficult for the Tribunal to check whether the request has been executed by the
national authorities concerned in accordance with national laws. Nevertheless, the
Tribunals expect the coercive measures to be executed in accordance with national
procedural requirements, which is reflected in their jurisprudence. For example, ICTR Trial
Chamber II noted in relation to a search and seizure that ‘the Trial Chamber takes
cognizance of the fact that most countries maintain a police code of ethics for the members
of their police forces for search and seizure’.900
From this, it can be concluded that the prosecutor only resorts to the procedural vehicle of
Rule 54 in cases where the execution of a request by the national authorities is unlikely. In
the instances where a request for an order or warrant is directed to the Trial Chamber or a
Judge, this is not based on an understanding that a form of judicial authorization is required
for the use of coercive measures. It may well be that the ICTY prosecution considers a
warrant necessary where it directly enforces coercive measures on the territory of the
former Yugoslavia. However, in the light of the scarce jurisprudence and the internal
character of prosecutorial guidelines on this issue, no such conclusion can be drawn.
Moreover, it is clear that the possible interpretation of Rules 39(iv) and 54, that prior
judicial authorization is required in all cases, is not upheld in practice. This is consistent
with the Tribunals’ practice of requiring unsuccessful attempts to obtain cooperation by the
parties as a pre-condition before issuing a court request for cooperation to a state in
accordance with Rule 54 (‘reasonable efforts’ requirement).901
b.2. Principle of proportionality
Occasionally, the ICTY jurisprudence points to the existence of a substantive condition for
coercive measures in the form of a principle of proportionality, applicable due to the
infringement of fundamental rights. The Appeals Chamber has argued that some
proportionality requirement for restrictions of fundamental rights exists in most national
criminal justice systems, meaning that coercive measures restricting fundamental rights
should serve ‘a sufficiently important objective’ and should not impair the right more than
is necessary to accomplish the objective.902 Besides the ICTY has been guided by ‘a general
principle of proportionality’.903
In Stakić, for example, the ICTY Trial Chamber held that the legality of a search of
materials in the possession of Stakić upon his arrival at UNDU largely depended on the
proportionality of the measure.904 The Chamber identified ‘the general principle of
proportionality’, which entails that a measure in public international law is proportional
only when: (1) it is suitable, (2) it is necessary, and (3) its degree and scope are in a
reasonable (p. 286) relationship to the envisaged target (proportionality in the narrowest
sense).905 Coercive measures should not be capricious or excessive. The Trial chamber
considered that in particular the requirements of necessity and proportionality stricto sensu
entail that in some cases the accused’s right to privacy may be predominant, e.g. as far as
medical records or diaries are concerned.906 Notwithstanding the aforementioned examples
to the contrary, this requirement of proportionality seems to lead a rather obscure life in
international criminal proceedings and explicit references are rare.
The origins of these criteria, which were first established in decisions concerning
provisional release by the ICTY Trial Chamber in the Hadžihasanović et al. case and later
confirmed by the ICTY Appeals Chamber in Limaj,907 are unclear. The test is reminiscent of
the interpretation given by the German Constitutional Court to the ‘Rechtstaatsprinzip’,
consisting of three elements: suitability, necessity, and proportionality stricto sensu.908
b.3. Necessity (subsidiarity)—specificity
The principle of proportionality (lato sensu) relied upon by the ICTY in Stakić also
encompasses a notion of necessity in the sense of subsidiarity.909 This principle of
subsidiarity means that coercive measures can only be relied upon when less intrusive
measures would not be sufficient.
Where a request for the use of coercive measures is put to the judge or Trial Chamber
pursuant to Rule 54 of the ICTY, ICTR, and SCSL RPEs, a different requirement of necessity
applies. The order or warrant should be necessary for the purposes of the investigation and,
thus, for obtaining evidence (requirement of necessity).910 Moreover, the material being
sought must be relevant to an investigation or prosecution or for the conduct of trial
(requirement of specificity).
b.4. Threshold for coercive action
The procedural frameworks of the ICTY, ICTR, and SCSL do not provide for a triggering
mechanism or a minimum threshold for the use of coercive action. Nowhere do the
statutory documents require a threshold, or an underlying justification or basis for the
adoption of coercive measures, such as ‘probable cause’, the existence of ‘concrete
indications’, or ‘reasonable grounds’.911 The only applicable threshold is the general
‘sufficient basis to proceed’ assessment made by the prosecutor to start an investigation.912
It is unclear whether the Trial Chambers do apply any minimum threshold when authorizing
(p. 287) requests made to execute coercive measures. In Naletlić and Martinović, the
defence argued in vain for ‘the establishment of some standard of review for search
warrants in order to protect against prosecutorial capriciousness and zeal’.913 Where a
request is directed to the state concerned, the applicable threshold will depend on national
legislation.
c. Search and seizure operations
No explicit provision in the Statute or the RPE of the ad hoc Tribunals or the SCSL details
search and seizure powers. Still such powers exist, deriving from Article 18(2) of the ICTY
Statute, Article 17(2) of the ICTR Statute, Article 15(2) of the SCSL Statute, and Rule 39(i)
and (ii) of the RPEs of the ICTY, ICTR, and SCSL. According to the ICTY Trial Chamber in
Stakić, the absence of an explicit provision on search and seizure is ‘based in principle on
the expectation that such matters would be governed by the law of the requested state’.914
However, this ignores the competence of the Tribunal, in exceptional cases, to directly
enforce search and seizures, without directing a request to the state where the search and
seizure are to be executed. In such cases, it is unclear what procedures should apply to the
operation.915
Respect for the rights of the suspect or accused necessitates limitations regarding the items
or materials that may be seized. In Gotovina, the Appeals Chamber concluded that
limitations may follow from the functional immunity to which the defence team members
(including investigators) are entitled, in case the items seized ‘derive from acts performed
by members of the … Defence in fulfillment of their official functions before the
Tribunal’.916In casu, search and seizure operations were executed by the Croatian
authorities at several locations associated with Gotovina’s defence and formed part of
criminal investigations for alleged involvement in the concealment of missing military
documents relating to a military operation that formed part of the proceedings before the
ICTY.917
Limitations with respect to the places that can be searched and items that can be seized
also follow from state or diplomatic immunities of property. For example, under customary
international law, the premises of diplomatic missions enjoy immunity protection.918 It has
been argued that ‘there is little evidence in State practice that those immunities have
suffered from an exception in the special case of investigative or other measures relating to
proceedings for crimes under international law’.919 Whereas Article 7(2) of the ICTY Statute
and Article 6(2) of the ICTR and SCSL Statutes discard personal immunities, immunities of
property are not included in the said provision. Therefore a request to a state for a search
of premises or the seizure of objects subject to state or diplomatic immunity may conflict
with the state’s obligations under international law. However, this problem does not yet
seem to have arisen in practice.920
(p. 288) According to Rule 41(B) of the ICTR and SCSL RPE, the prosecutor is under the
obligation to draw up an inventory of all documents and objects seized from the accused
and should return ‘without delay’ all materials that are of no evidentiary value.921 This
provision puts an affirmative obligation on the prosecutor ‘to assess the evidentiary value of
the seized materials in a timely manner in order to justify her retention of any seized
materials’.922 The provision was inserted in the ICTR RPE923 after earlier jurisprudence had
acknowledged the existence of a lacuna in the Statute and RPE and recognized ‘that there
is want of a mandatory specific legal provision for an inventory to be made’.924 Without a
mandatory requirement, a seizure cannot be considered illegal when no such inventory is
made. A similar requirement is also to be found in the SCSL RPE.925 At the ICTY, on the
contrary, no similar provision exists and the failure to make a complete inventory of all
items seized during a search and seizure will not in itself lead to the exclusion of this
evidence.926
An explicit provision regulates cases of urgency. In such cases, the prosecutor may request
that the state concerned seizes physical evidence pursuant to Rule 40(ii) of the ICTY RPE,
and Rule 40(A)(ii) of the ICTR RPE and SCSL RPE.927 When seeking a warrant of arrest, the
prosecutor may request the judge confirming the indictment to issue an order to seize
documents and search the premises where the accused is arrested.928
The situation is more problematic when a search is conducted on the premises or in the
immediate surroundings of the place where the accused is found and arrested (searches
incidental to arrest proceedings) in the absence of such an order. ICTR Trial Chamber II has
clarified that search and seizures incidental to an arrest can sometimes be characterized as
urgent measures, particularly in the light of the risk of destruction of evidence.929 However,
the Trial Chamber did not accept the prosecutor’s argument that the issuance of an arrest
warrant implies the authorization for search and seizure operations at the time of the
arrest.930
When, in the Muvunyi case, the defence argued that materials had been seized illegally at
the time of the arrest, the ICTR Trial Chamber found that national law in the state where
the measures were taken provided for the seizure of materials in the course of an arrest or
after that arrest has been effectuated.931 Hence, the Chamber concluded that ‘a sufficient
legal basis existed for the seizure of materials from the accused at the time of his arrest,
and for their subsequent use in proceedings before this Tribunal’.932 The Tribunal thus
holds the view that a legal basis under national law suffices for the execution of a search
and (p. 289) seizure operation incidental to arrest proceedings, without requiring any form
of judicial authorization by the Tribunal.
Irregularities in the initiation and execution of search and seizures may result in breaches
of the right to privacy of the suspect (accused) or a third person. Where the search and
seizures are executed by states, the ICTR has sometimes declined to assess the legality of
the search and seizure operation.933 Such an approach deviates from that taken by the
ICTY. As previously discussed, the Tribunal held in the Delalić et al. case, in relation to the
interrogation of an accused in the absence of counsel, that the fact that the violations were
committed by a state executing a request does not prevent the Tribunal from addressing
these violations and providing remedies.934 As to the admission of evidence, the general
approach of the ad hoc Tribunals and the Special Court has been to engage in a balancing
exercise as envisaged under Rule 89(D) of the ICTY, ICTR, and SCSL RPEs rather than to
exclude illegally obtained evidence.935
d. Tracing, freezing, and seizure of property, proceeds, or instrumentalities of
the crime
Seizure does not necessarily result from the search of premises. Notable in this regard is
the tracing, freezing, and seizure of assets, property, proceeds, or instrumentalities of the
crime. Such seizure is referred to in relation to Rule 61 of the ICTY and ICTR RPE, which
set forth procedures in case of a failure to execute an arrest warrant within a reasonable
time. According to Rule 61(D), the Trial Chamber may, proprio motu or upon request by the
prosecutor, order state(s) to adopt provisional measures to freeze the assets of the accused,
without prejudice to the rights of third parties.
These coercive measures are not aimed at gathering evidence. Instead, the freezing of
assets may seek to prevent the accused at large from using these assets to evade arrest and
from taking steps to disguise these assets or putting them beyond reach of the Tribunal.936
In that sense, it supports the execution of other coercive measures, notably the execution of
the arrest warrant against the accused. In the end, this measure supports the
administration of justice. However, the freezing of assets of the accused also serves a
second distinct purpose. Assets can be frozen for the purpose of granting restitution of
property, or payment from its proceeds, which may be ordered by the Trial Chamber
pursuant to Rule 105 of the ICTY and ICTR RPEs and Rule 104 of the SCSL RPE after a
conviction.937
In the Milošević case, the Single Judge confirmed that also upon confirmation of the
indictment, the judge may order the freezing of the assets of an accused. Such power
ultimately derives from Article 19(2) of the ICTY Statute and Rule 47(H)(i) of the ICTY RPE.
In such case, the more specific procedure set out in Rule 61(D) does not apply;938 and (p.
290) hence, there is no need for such order to be issued by the full Trial Chamber as
required under Rule 61(D).939
The SCSL RPE have no provision similar to Rule 61(D) of the ICTY and ICTR RPEs. In the
Norman et al. case, the SCSL declined to issue a similar order.940 Single Judge Thompson
stated that ‘nowhere is it expressly provided that there is a law enforcement power to seek
an order from a court to freeze the assets of an indicted person pending trial’.941 The
freezing or forfeiture is only explicitly referred to in a post-conviction setting.942 Even then,
such measures are limited to property that has been acquired unlawfully or as a result of
criminal conduct.943 Hence, a high threshold applies for any order to freeze assets of an
accused pending trial, since it must be established that ‘there is clear and convincing
evidence that the targeted assets have a nexus with criminal conduct or were otherwise
illegally acquired’.944 The requirement, which seems to be related to a standard for
conviction, may render this prosecutorial tool useless. Indeed, the standard seems too high
for a provisional measure.945
Also at the ICTR, jurisprudence is scarce. Based on Rule 40(A) of the ICTR RPE, the
prosecutor in one case requested the French authorities to freeze certain bank accounts of
Felicien Kabuga (who allegedly financed the genocide in Rwanda) and his family.946 The
French authorities complied.
e. Interception of communications
Intercepted communications have played an important role as evidence in proceedings
before the ad hoc Tribunals.947 Noteworthy are the intercepted communications between
VRS members which have been used in a number of cases before the ICTY, often to prove
key elements of the prosecution case.948 Usually, such intercepted evidence has previously
been gathered by intelligence organizations, often outside and in disregard of existing
procedural frameworks, in war-like situations.949
The prosecutor may want to intercept communications as an investigation method. In the
Haraqija and Morina (contempt) case, conversations between the accused Morina and a
protected witness were covertly recorded by the police of an unnamed European country, in
consultation with the ICTY prosecutor.950 The investigative action, whereby the witness (p.
291) had been fitted with hidden electronic recording devices, apparently followed the Trial
Chamber’s strongly held impression in the Haradinaj case that ‘the trial was being held in
an atmosphere where witnesses felt unsafe’.951 On appeal, Morina argued that the evidence
should be excluded since the measure violated national law and international human rights
(privacy), and that ‘the use of secret recordings during his suspect interview violated his
right against self-incrimination, since it prompted him to give a detailed account of the
meeting which the Trial Chamber relied on to convict him’.952 However, the Appeals
Chamber found that even if the recordings violated domestic law, Rules 89(D) and 95 of the
ICTY RPE did not require the exclusion of the intercepted evidence.953
In the absence of further regulation of the interception of communications, the general
prosecutorial power to collect evidence is broad enough to allow for such investigative
acts.954 Interception of communication will normally be executed by a national authority
following a request from the international prosecutor, which means that national
procedures and requirements will be followed. The jurisprudence mostly deals with the
admissibility of evidence that has previously been obtained illegally and not with the
question of whether the interception of communicqtions violated the right to privacy.955 The
jurisprudence reveals that the illegality under national law will not automatically and
necessarily lead to mandatory exclusion of the evidence under Rule 95 of the ICTY, ICTR,
and SCSL RPE.956 Both ad hoc Tribunals apply the balancing test provided for under Rule
89(D) of the ICTY RPE providing for the exclusion of evidence ‘if its probative value is
substantially outweighed by the need to ensure a fair trial’.957
f. Examinations of body and mind
Persons can be requested to undergo certain tests in the course of the investigation. These
may include medical examinations and the taking of fingerprints, photographs, or body
samples—such as handwriting, voice, breath, blood, urine or other bodily specimens—which
may be used for DNA identification. The examinations may serve to identify a person or
clarify the factual circumstances of a case.958 However, the measures may risk interfering
with the privacy rights or the privilege against self-incrimination of the person concerned.
In the absence of a provision detailing this power, the competence derives from the general
evidence-gathering powers of the prosecutor.959
It can rightly be asked how far the right against self-incrimination prevents the suspect or
accused from being compelled to provide materials for the execution of certain tests,
including DNA tests. This question arose in the Delalić et al. case.960 At stake was a request
(p. 292) by the prosecution for an order, pursuant to Rules 39(iv) and 54 of the ICTY RPE, to
direct one accused to provide a sample of his handwriting for analysis and identification.
The sample was required in order to determine the authorship of a letter, considered to be
threatening, which was allegedly written by the accused and sent to a witness. According to
the prosecution, the order was sought for identification purposes. The defence objected and
argued that requesting the accused to provide a handwriting sample against his will would
violate Article 21(4)(g) of the ICTY Statute and have the effect of compelling the accused to
contribute to self-incrimination.961
The Trial Chamber was not satisfied a handwriting sample per se could be regarded as
material proof against an accused. Nevertheless, the Chamber held that ‘where the material
factor absent in the incriminating elements is the handwriting sample of the accused, the
Trial Chamber cannot compel the accused to supply the missing element’.962 Doing so
would infringe the provisions of Article 21(4)(g) of the ICTY Statute protecting the accused
from self-incrimination. Importantly, the fact that the handwriting sample in itself is neutral
is not the issue.963 If the sample taken together with other evidence would constitute
material evidence to prove the charge against the accused, then the order of the Trial
Chamber would have compelled the production of self-incriminating evidence.
iii. ICC
a. Direct enforcement v. requests for judicial assistance
In general, the ICC prosecutor does not have the power to undertake coercive actions
directly on the territory of a state. The prosecutor has to ensure the cooperation of the state
concerned.964 Assistance may also be provided by others, such as peacekeeping forces. For
example, regarding the Situation in the DRC, the Memorandum of Understanding between
the ICC and MONUC allows MONUC to provide assistance in the execution of requests for
cooperation, including coercive measures, at the request of the authorities of the DRC.965
Only in the exceptional scenario of a ‘failed state’, may the ICC prosecutor take coercive
measures on the territory of a state, with the authorization of the Pre-Trial Chamber.966 In
such cases, the discharge of the Court’s mandate and effective prosecution might justify the
power of the prosecutor to carry out on-site investigations including forcible measures.967
(p. 293) b. Formal and material conditions for the use of coercive measures
b.1. Judicial authorization
The ICC Statute does not include an explicit requirement of judicial authorization for the
use of coercive measures. However, Article 57(3)(a) could be interpreted as the legal basis
for the obligation on the prosecutor to request a warrant from the Pre-Trial Chamber before
executing coercive measures. This may be appropriate, for example, where the prosecutor
intends to seek the assistance with a coercive measure from a state that does not require
judicial authorization in the domestic process, and thereby ensuring at least one level of
judicial supervision over the execution of a coercive act. Nevertheless, as has been argued,
this latter provision leaves the issue to the discretion of the Court,968 and to date there is no
case law on such authorizations.
b.2. Principle of proportionality
No requirement of proportionality for the execution of coercive measures is to be found in
the ICC Statute or the RPE. Nonetheless, the ICC Pre-Trial Chamber referred to the
principle of proportionality in the Lubanga case, in connection with the assessment of the
legality of a search that had been conducted on the private premises of the accused in the
DRC. The Pre-Trial Chamber derived the principle from case law of the ECtHR in relation to
infringements of the right to privacy.969 The Pre-Trial Chamber concluded that the search
operation conducted by the DRC authorities was of an indiscriminate nature and not
proportionate to the objective sought by the national authorities.970 Hence, the operation
was in violation of the principle of proportionality and, thus, a violation of internationally
protected human rights.971 This finding was subsequently confirmed by Trial Chamber II.972
However, the Trial Chamber concluded that the violation of the principle of proportionality
would not lead to the automatic exclusion of the resulting evidence.973
b.3. Necessity—specificity
It has been argued by Kress that Article 57(3)(a) and (b) of the ICC Statute ‘allude to the
existence of a necessity requirement’ which will govern requests for coercive measures.974
Indeed, the reference in the Article to orders and warrants ‘as may be required for the
purposes of an investigation’ or ‘as may be necessary to assist the person in the preparation
of his or her defence’ are reminiscent of a requirement of necessity. These provisions
equally seem to allude to the existence of a specificity requirement. Article 57(3)(b) is
complemented by Rule 116 of the ICC RPE on the collection of evidence at the request of
the defence, which includes a requirement of relevance as well as a requirement of
specificity for requests to seek cooperation from states.975 Trial Chamber IV, in responding
to a defence request to issue cooperation orders under Article 57(3)(b), has held that
requests for assistance must be based on the requirements of: (i) specificity, (ii) relevance,
and (iii) necessity.976 Hence, different ICC Chambers have begun to adopt a position (p.
294) similar to that of the ad hoc Tribunals and the SCSL, and to read these requirements
into Article 57(3)(a) in order to avoid ‘fishing expeditions’.977
b.4. General threshold for the use of coercive measures
The ICC Statute includes the requirement that the information in the possession of the
prosecutor must reveal a ‘reasonable basis to believe that a crime within the jurisdiction of
the Court has been committed’, before the investigation is triggered.978 Whereas the
prosecutor can use some of his investigative powers already during the preliminary inquiry,
no coercive measures can be used before the commencement of the investigation and, thus,
the determination of a reasonable basis to proceed.979
c. Search and seizure operations
Similarly to the ad hoc Tribunals, the power to conduct search and seizure operations is not
explicitly provided for in the ICC Statute. The power derives from Articles 54(3)(a) and
93(1)(h) of the ICC Statute. The further conditions and procedures for the adoption and
execution of search and seizures are subject to the domestic laws of the country requested
to execute the measure coupled with any specific measures requested by the Court
pursuant to Article 99(1). The latter offers the prosecution leeway to request, inter alia, the
participation of OTP staff in the execution of the request.980
Domestic regulations are typically drafted to regulate interferences with the fundamental
rights of the suspect (accused) or third persons. The Court may therefore face a situation
where it has to examine how a state has executed a request for cooperation in order to
determine whether it should apply the exclusionary rules concerning evidence contained in
Article 69(7).981 As observed by Orie, it will be difficult for the court to avoid such a
function entirely, as ‘the observing of these formal requirements might be decisive for the
determination as to whether or not human rights have been violated while obtaining the
evidence’.982 The stipulation of specific measures as part of its request to the executing
authority pursuant to Article 99(1) will therefore have to take into account both the
domestic legal framework and the requirements of the ICC Statute.
During the negotiations on the Rome Statute, a proposal was made to include an explicit
provision on ‘search and seizure privacy rights’. The Zutphen draft of the ICC Statute
contained the following provision:
The right of all persons to be secure in their homes and to secure their papers and
effects against entries, searches and seizures shall not be impaired by the Court
except upon warrant issued by the [Court] [Pre-Trial Chamber], on the request of
the Prosecutor, in accordance with Part 9 [7] or the Rules of the Court, for adequate
cause and particularly describing the place to be searched and things to be seized,
or except on such grounds and in accordance with such procedures as are
established by the Rules of the Court.983
(p. 295) However, this provision was not accepted.984 It has been argued by Edwards that
the principal reason for the deletion of this provision was ‘because it was thought that those
rights were covered in other Parts of the Rome Statute, including in Part IX’.985 The failure
to include an express privacy right in the ICC Statute as a safeguard against unauthorized
search and seizure does not mean that the right to privacy is not protected. The right is
included in the ‘internationally recognised human rights’ referred to in Article 21(3) of the
ICC Statute and therefore binding upon the Court, including the prosecutor when
conducting investigations.
Nonetheless, evidence obtained in violation of the right to privacy will not automatically be
excluded. Article 69(7) of the ICC Statute falls short of being an exclusionary rule for all
human rights violations.986 Instead, it provides for the mandatory exclusion of evidence only
if: (a) the violation casts serious doubt on the reliability of the evidence, or (b) the
admission of the evidence would be antithetical to and would seriously damage the integrity
of the proceedings.987 Hence, evidence obtained through irregular coercive measures, e.g.
a search and seizure operation without the required judicial authorization,will only be
excluded under Article 69(7) of the ICC Statute when the requirements of one of the two
limbs are fulfilled (‘the dual test’).988
d. Identification, tracing, and seizure of property, proceedings, assets, and
instrumentalities of crimes
Pursuant to Article 57(3)(e) of the ICC Statute, the Pre-Trial Chamber may proprio motu or
at the request of the prosecutor or of victims (who have made a request for reparations or
have made a written undertaking to do so)989 seek cooperation from states in taking
protective measures for the purpose of forfeiture.990 By restricting such requests for
protective measures to situations where a warrant of arrest or a summons has already been
issued, a threshold has been included in the provision. Moreover, the Pre-Trial Chamber
must have due regard to the strength of the evidence and the rights of the parties
concerned. According to Rule 99(2) of the ICC RPE, prior notification to the suspect against
whom the protective measures are sought is not necessary unless such notification ‘would
not jeopardise the effectiveness of the protective measures’.991
(p. 296) This power of the Pre-Trial Chamber is accompanied by the requirement that state
parties provide cooperation for the ‘identification, tracing and freezing or seizure of
proceeds, property, assets and instrumentalities of crimes for the purpose of eventual
forfeiture, without prejudice to the rights of bona fide third parties’.992 It follows from the
reference in Article 57 to Article 93(1)(k) that the latter provides an exhaustive list of
protective measures that can be ordered by the Chamber via a request for assistance under
Article 57(3)(e).993 In turn, these provisions are linked to Article 77(2)(b), providing the
legal basis for the Court to order, upon conviction, ‘a forfeiture of proceeds, property and
assets derived directly or indirectly from that crime, without prejudice to the rights of bona
fide third parties’.994
The Court has underlined the importance of the freezing of assets for the arrest of a suspect
or accused person in order to prevent disruption to the support network of suspects.995 The
freezing of assets has a twofold purpose of facilitating enforcement and supporting the
arrest and surrender.996
The Pre-Trial Chamber in Lubanga concluded that Article 57(3)(e) of the ICC Statute also
includes requests for the taking of protective measures for the purpose of eventual
reparations to victims and derived such interpretation from a contextual997 and a
theological998 interpretation of the article.999 The Pre-Trial Chamber also underlined the
importance of the early seizure or freezing of assets:
Existing technology makes it possible for a person to place most of his assets and
moveable property beyond the Court’s reach in only a few days. Therefore, if assets
and property are not seized or frozen at the time of the execution of a cooperation
request for arrest and surrender, or very soon thereafter, it is likely that the
subsequent efforts of the Pre-Trial Chamber, the Prosecution or the victims
participating in the case will be fruitless.1000
Indeed, without the exercising by the Court of its power to seize assets as early as possible
in the proceedings, the prospects of monetary awards for the victims will remain
limited.1001
Notably, the Pre-Trial Chamber criticized the prosecutor for not having made an application
for protective measures for the purpose of forfeiture together with the application for an
arrest warrant. While the Chamber in the instant case decided to act proprio motu, it
opined that where the prosecutor is the organ of the Court primarily in charge of the
investigation. Therefore, the prosecutor should take these matters into consideration (p.
297) for future Article 58 applications as this would greatly benefit the effectiveness of the
reparation system.1002
The Regulations of the OTP now address these concerns and state that the OTP should
consider, at the time when an application for a warrant of arrest or summons to appear is
considered, to request measures for the identification, tracing, and freezing or seizure of
property, assets, or the instrumentalities of the crimes, in particular for the ultimate benefit
of victims.1003
Similarly, requests for the identification, tracing, and freezing or seizure of property and
assets have been issued to the competent national authorities by the Pre-Trial Chamber
regarding a number of other suspects.1004 For example, a request for cooperation was
addressed to the Republic of Portugal to identify, trace, freeze, and seize any property and
assets of Mr Jean-Pierre Bemba located on its territory, subject to the rights of bona fide
third parties, which was subsequently executed by the Portuguese authorities.
Subsequently, the Pre-Trial Chamber requested the competent judicial authorities to initiate
an investigation into the alleged disappearance of the money that had been frozen.1005 In
relation to other suspects, similar requests for protective measures have been issued.
Nevertheless, these requests remain confidential.1006
While the use of the term ‘forfeiture’ in Article 57(3)(e) suggests that only proceeds, assets,
or property which are directly or indirectly related to the crime can be seized,1007 requests
for provisional freezing or seizure should not be limited to the proceeds, property, or assets
which have been derived directly or indirectly from a crime within the jurisdiction of the
court. Consequently, protective measures may relate to other proceeds, property, or assets
owned or controlled by the suspect.1008 It is evident that where all assets of a suspect or
accused have been frozen, this may frustrate the payment of his or her defence counsel. In
such case, the Court can order the states parties to (partially) lift the freeze.1009
e. Interception of communications
The prosecutorial power to seek interception of communications derives from the general
power to collect and examine evidence (Article 54(3)(a) of the ICC Statute). Unless so
authorized under Article 57(3)(d), the prosecutor lacks the power to intercept
communications directly by means of on-site investigations.1010 Kress notes that during the
negotiations of the Statute it was understood that requests for other types of assistance
under Article 93(1)(l) would encompass also modern intrusive methods such (p. 298) as
telecommunication intercepts.1011 In other circumstances where the intercepts have been
previously undertaken by the national authorities at their own initiative, the request would
be for ‘the provision of records and documents, including official records and
documents’ (such as evidence contained in domestic investigative dossiers or police files)
under Article 93(1)(i). For example, in Mbarushimana, communications previously
intercepted by French and German authorities were admitted into evidence for the purpose
of the confirmation of charges.1012
f. Examinations of body and mind
At the Rome conference, it was proposed to include the possibility of medical examinations
of persons to whom Article 55(2) applies.1013 The debate focused on the question of
whether the person’s consent would be required, as medical examinations as such may
interfere with the right to physical integrity. While it could be argued that for medical
examinations assessing fitness to stand trial, no consent should be required, delegates
disagreed on the question of whether a medical examination could be ordered for the
purpose of obtaining incriminating evidence.1014 It was opined that the intrusiveness of the
examination should be taken into consideration (blood or urine samples may not require the
consent of the person concerned).1015 Nevertheless, there was a broad understanding that
the person concerned should have access to the results of the examination.1016
Provisions were included in Rule 113 of the ICC RPE on the ‘collection of information
regarding the state of health of the person concerned’. It allows the Pre-Trial Chamber to
order, either proprio motu or at the request of the prosecutor or the person concerned, a
medical, psychological, or psychiatric examination.1017 The provision gives considerable
discretion to the Pre-Trial Chamber but underlines that the Chamber should consider the
nature and purpose of the examination and whether the person consents or not. The expert
executing the examination will be chosen from the list of experts or an expert approved by a
party, after approval by the Pre-Trial Chamber.1018 It follows from the formulation of the
provision that this power not only aims at gathering evidence, but also ensures the
administration of justice. Where the taking of cellular materials is required for identification
purposes, including the execution of DNA analysis, the OTP normally transmits a request to
the competent national authorities. Such tests will be executed in compliance with the
national laws and, to the extent not prohibited by national law, according to any specific
procedures requested by the ICC.1019
iv. SPSC
a. Formal and material conditions
At the SPSC, coercive measures required judicial authorization by an investigating
judge.1020 This applied, inter alia, to exhumation, forensic examination, search of locations
and buildings, seizure of goods or items, including seizure or opening of mail, intrusive (p.
299) body search, physical examination, including the taking and examination of blood,
DNA, samples, and other bodily specimens, interception of telecommunication and
electronic data transfer, and other warrants involving measures of a coercive character in
accordance with the applicable law. The investigating judge would only issue orders or
warrants lawfully requested by the public prosecutor when there were reasonable grounds
to do so.1021
b. Specific coercive acts
An authorization by the investigating judge was required for the execution of search and
seizures by the prosecutor.1022 Warrantless search and seizures were possible in cases of
urgency. In such cases, the written record of the search should immediately be sent to the
investigating judge for an ex post assessment of the measure.1023
The SPSC procedural framework included a threshold for the issuance of a search warrant,
namely ‘reasonable grounds to believe that such search would produce evidence necessary
for the investigation or would lead to the arrest of a suspect whose arrest warrant has
previously been issued’.1024 Moreover, the provision detailed the necessary content of a
search warrant, including the identification of the location or items to be searched, the
reasons for the search, the restrictive measures that can be used by police officers during
the search, and the time of the day when the search warrant may be executed.1025
Searches were normally limited to daylight hours except where there were reasonable
grounds to believe that a night-search was necessary for the effective execution of the
warrant or for the safety of the persons involved in the search.1026 The search warrant
should be served on the occupant of the premises. A written record of the search including
an inventory of items seized should be made.1027 If nobody was present at the premises, the
police may provide for at least one independent witness.1028
Judicial authorization was also required for the interception of communications.1029 The
requesting prosecutor then executed the warrant.1030 Further, an order or warrant issued
by the investigating judge was necessary to execute physical examinations, which could
include blood tests, and the taking of DNA or other bodily specimens.1031 Such a warrant or
order could be lawfully executed only by a person with ‘appropriate medical
qualifications’.1032
v. ECCC
In contrast to the other international criminal tribunals, the ECCC Internal Rules explicitly
distinguish between coercive and non-coercive investigative measures. The Internal Rules
make the execution of coercive measures conditional upon judicial authorization.1033
Moreover, it is not possible for the co-prosecutors or for the co-investigating judges to
delegate the the execution of coercive investigative measures to investigators.1034 Coercive
(p. 300) measures should be ‘strictly limited to the needs of the proceedings’ (necessity
requirement).1035 All coercive measures should also be ‘proportionate to the gravity of the
offence’ (proportionality requirement).1036 Another general requirement is that whenever
the co-prosecutors or co-investigating judges resort to coercive measures, the powers
should be excercised in full respect of human dignity.1037
The procedural framework of the ECCC provides for a detailed set of procedural conditions
regulating the execution of search and seizures, akin to what is found in most national
jurisdictions. Search and seizures can normally be initiated only by the co-investigating
judges.1038 During the preliminary investigation, the co-prosecutors may request judicial
police officers or investigators to search premises and gather relevant information only with
the written approval of the owner or occupier of the premises.1039 Nevertheless, if the
owner or occupier is absent, or in case he or she refuses access, a written judicial
authorization by the President of the Pre-Trial Chamber is required.1040 In cases of urgency,
the approval by the owner or occupier may be given orally and thereafter confirmed in
written form within 48 hours.
A written record of the search or an inventory of items seized is required.1041 Searches
conducted during the preliminary investigation should be executed during daytime.1042 A
search operation should be executed in the presence of the occupant of the premises or two
witnesses.1043
On the interception of communications, the Internal Rules clarify that the co-prosecutors
lack the authority to take such measures.1044 This power rests solely with the co-
investigating judges.
The Internal Rules refer to the possibility for the co-investigating judges (or the Trial
Chamber) to order, proprio motu or at the request of a party, that an accused or charged
person undergoes a medical, psychiatric, or psychological examination by an expert. Such
examination may be ordered to establish the person’s fitness to stand trial or ‘for any other
reasons’.1045 The examination of the accused, charged person, or civil party may take place
in the absence of his or her counsel.1046 The Pre-Trial Chamber has interpreted Rule 32 as
being sufficiently broad to encompass requests to assess the ability of an accused or
charged person to effectively participate in the proceedings.1047 The provision seems broad
enough to include examinations for identification purposes or to clarify the factual
circumstances of the case in the course of the judicial investigation.
(p. 301) vi. STL
The procedural framework of the STL does not include any express formal or material
conditions for coercive measures. Notwithstanding the public character of the pre-trial
proceedings (including filings and orders), the STL provides that pre-trial filings related to
coercive measures shall be confidential as long as necessary for the effective conduct of the
investigation and/or protection of any person.1048 The RPE do not expressly require the
prosecutor to request a warrant or an order for the execution of coercive measures in the
investigation.1049 Rule 77(B) of the STL RPE prescribes that whenever a party wants to
conduct investigative measures independently on the territory of Lebanon, it ‘may’ seek the
Pre-Trial Chamber’s authorization, when this party deems such authorization ‘appropriate
and necessary’.1050 However, such provision falls short of a general obligation to obtain a
warrant for the execution of coercive measures on the territory of Lebanon.
The prosecutorial power to conduct search and seizures derives from the general evidence-
collecting powers.1051 The prosecutor or, at the request of the defence, the Head of the
Defence Office may either request Lebanon or a third state to allow direct execution of the
search and seizure or have the search and seizure executed by the judicial authorities, with
or without the presence of OTP staff.1052 Exceptionally, the Pre-Trial Judge may request a
state to search premises or seize evidence at the request of a party, a victim, or proprio
motu.1053 This presupposes that the parties are not able to collect the evidence themselves,
and that the collection of evidence would be in the interests of justice. The proprio motu
power applies when the judge considers that the interests of justice, the need for the
impartial establishment of the truth and the necessity to ensure a fair and expeditious trial,
in particular the need to ensure the equality of arms and to preserve evidence, make the
gathering of evidence imperative. The seizure seems limited to ‘probative materials’.
No other provisions regulate the adoption or execution of search and seizures. However, the
competence of the Pre-Trial Chamber to provide such warrants and orders as are necessary
for the conduct of the investigations may be interpreted as including an obligation to
request judicial authorization.1054
It follows from Rule 82(C) STL RPE that the Pre-Trial Judge may request states to freeze the
assets of the accused, without prejudice to the rights of third parties. The Pre-Trial Judge
may issue the request either proprio motu or upon a request by the prosecutor or Registrar,
and after having heard the defence.
As to the execution of the measures, no general obligation to cooperate with the Court is
incumbent on any state other than Lebanon.
(p. 302) vii. Synthesis
On a general level, no obligation can be discerned in the law or practice of the ad hoc
Tribunals, the SCSL, and the ICC to obtain judicial authorization from the tribunal before
the prosecutor can initiate non-custodial coercive measures. However, where the ICC
prosecutor may exceptionally execute coercive measures directly on the territory of a state
(‘failed state’ scenario), an authorization of the Pre-Trial Chamber is nonetheless required.
The analysis of the procedural framework of the other tribunals under review revealed a
more diverse picture. While the ECCC and the SPSC both require a judicial authorization
(normally ex ante), the STL does not make such formal requirement explicit, with the
possible exception of direct evidence gathering on the territory of Lebanon. Secondly, from
the practice of the ICC and the ad hoc Tribunals, the requirement can be inferred that non-
custodial measures should respect the principle of proportionality. Additionally, the law of
the ECCC and the SPSC (reasonableness) arguably also include such a requirement.
Thirdly, no specific threshold or triggering mechanism for the use of non-custodial coercive
measures could be identified.
More specific conclusions relate to individual non-custodial coercive investigative
measures. In the absence of specific norms in the procedural frameworks of the
international criminal tribunals, these powers derive from the general prosecutorial power
to collect evidence. The law and practice of the different tribunals clarify that the
prosecutor has the power to initiate search and seizure operations. Jurisprudence from the
ICTY clarified that the lawyer-client privilege and restrictions on disclosure limit the items
that can lawfully be seized. An inventory should be made of all documents and objects
seized. The procedural frameworks of the ad hoc Tribunals and the SCSL include an
express provision on urgent requests to national authorities for the seizure of physical
evidence.
Unlike the rudimentary regulation of search and seizures for the other tribunals, the ECCC
and the SPSC provide for a detailed set of procedural conditions. These conditions include
requirements as to the content of the search warrant (SPSC), the condition that the search
warrant is served on the occupant of the premises (SPSC), limitations regarding the time
when search and seizure operations can be executed (SPSC, ECCC), and requirements
regarding the persons that should be present during search and seizures (SPSC, ECCC).
Importantly, the SPSC law requires the existence of ‘reasonable grounds to believe that
such search would produce evidence necessary for the investigation or would lead to the
arrest of a suspect whose arrest warrant has previously been issued’ before a warrant may
be issued.
No uniform approach is identified regarding the possibility to provisionally freeze assets of
the accused person in the course of the investigation. While the jurisprudence of the ICTY
and the SCSL acknowledge the existence of a power to take such measures, the SCSL Trial
Chamber has established a high threshold by concluding that the power is referred to only
in a post-conviction setting and finding that the measures should be limited to property that
has been acquired unlawfully or as a result of criminal conduct.
The ICC Pre-Trial Chamber may, proprio motu or at the request of the prosecutor or of
victims, seek cooperation from states in taking protective measures for the purpose of
forfeiture. The Court’s case law clarifies that protective measures for the purpose of
eventual reparation of victims are included. The applicable threshold requires that a
warrant of arrest or a summons has already been issued.
While the broad prosecutorial powers include the possibility to seek the interception of
communications, the laws of the different international criminal tribunals, except the ECCC
and SPSC, do not spell out this measure explicitly. The practice of the international criminal
tribunals demonstrates the important role played by previously intercepted evidence in the
proceedings.
(p. 303) According to ICTY jurisprudence, the privilege against self-incrimination may
protect against compelling the suspect or accused from providing materials, for the
execution of certain tests, including DNA tests.
B. Evaluation
i. Human rights law
a. Requirement of judicial authorization
By definition, coercive measures do infringe upon the rights and liberties of suspects,
accused persons, or third persons. They affect rights such as the right to liberty, the right to
privacy, and the right to property. These rights are, to a varying extent, provided for in
international human rights law.1055 Human rights law allows for interference with the
aforementioned rights only insofar this is in accordance with the law. Such legal basis for
coercive measures seems conspicuously absent in international criminal procedure. The
extremely broadly formulated powers ‘to collect evidence’ and ‘to conduct on-site
investigations’ constitute the only legal basis in the Statutes of most tribunals under review
(the ECCC and the SPSC being exceptions).1056
The lawfulness requirement under human rights law implies legislation fulfilling certain
requirements and coercive measures taken in accordance with this legislation. More
precisely, it includes a qualitative element requiring regulation that is sufficiently detailed
and precise (foreseeability), as well as adequately accessible.1057 The ECtHR’s case law
requires the existence of sufficient procedural safeguards, either through the requirement
of legality (internal quality of the law) or through the requirement of proportionality.1058 For
example, with regard to the interception of communications, the ECtHR has held that the
lawfulness principle requires:
… a definition of the categories of people liable to have their telephones tapped by

judicial order, the nature of the offences which may give rise to such an order, a
limit on the duration of telephone tapping, the procedure for drawing up the
summary reports containing intercepted conversations, the precautions to be taken
in order to communicate the recordings intact and in their entirety for possible
inspection by the judge and by the defence and the circumstances in which
recordings may or must be erased or the tapes destroyed, in particular where an
accused has been discharged by an investigating judge or acquitted by a court.1059
Also the Human Rights Committee has stressed the importance of procedural safeguards to
avoid arbitrary interference.1060
(p. 304) The absence of detailed statutory norms may be more striking for someone coming
from the ‘civil law’ tradition, where all law should be statutory in principle, than it is for
someone coming from a ‘common law’ background. It follows from the case law of the
ECtHR that the requirement of lawfulness should be interpreted in a substantive, rather
than in a formal sense.1061 Hence, not only statutory law but also case law would suffice as
a legal basis for coercive measures. However, international criminal tribunals might lack a
sufficient number of judicial precedents, rendering the prospects of a ‘settled case law’
unlikely.1062 The scarce jurisprudence of the different international criminal tribunals is not
helpful in clarifying the boundaries and content of the coercive powers at the prosecutor’s
disposal during a criminal investigation. Moreover, in the cases where the ICTY prosecutor
has sought a judicial warrant from a Chamber, this has been done on an ex parte basis and
the warrant kept under seal in most cases.1063 While this does not rule out the
establishment of a ‘settled case law’, the confidentiality involved may fail to meet the
requirement of foreseeability.
The importance of a judicial authorization for the execution of coercive measures has been
underscored in the jurisprudence of both the ECtHR and the HRC. The ECtHR has done so
when assessing the proportionality of domestic law on coercive measures and has stated
that the absence of a requirement for a judicial warrant may be problematic where the
conditions and restrictions provided by law are ‘too lax and full of loopholes’.1064 The
ECtHR has also underlined that vigilance should be exercised in case the executive
authorities can resort to coercive action without a judicial warrant.1065 Likewise, the HRC
has expressed concerns when prosecutors are empowered to take coercive measures
without judicial consent.1066 In general, it appears that such judicial authorization can
either be ex ante or ex post.
From human rights law, the following conclusions can be drawn: (1) no clear-cut obligation
to obtain a judicial authorization before authorities can resort to coercive action can be
discerned; and (2), where the law (here the statutory documents of the international
criminal tribunals) is overly broad and vague on the use of coercive powers by the
prosecutor, human rights law should be interpreted as providing an obligation for the
prosecutor to obtain a judicial authorization for coercive action.
b. Requirement of proportionality
Coercive measures should, as they interfere with human rights, be proportionate to the
legitimate aim they pursue. This principle of proportionality has been viewed in the
jurisprudence of the ECtHR as a corollary to the requirements that infringements of a right
must be ‘necessary in a democratic society’ and respond to a ‘pressing social need’.1067 The
requirement of proportionality follows from the need to balance different competing
interests underlying the right at stake (right to privacy, right to property) and the limiting
interest in a particular case.1068 The ECtHR has emphasized that where the proportionality
(p. 305) requirement is derived from the ‘necessary in a democratic society’ provision, the
word ‘necessity’ is not synonymous with ‘indispensable’, ‘strictly necessary’, or ‘absolutely
necessary’ but means more than ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’, or
‘desirable’. There is a certain margin of appreciation for states but the ultimate control lies
with the Court.1069 A notion of reasonableness or proportionality is equally inherent in
Article 17 of the ICCPR on the right to privacy.1070 The width of the powers restricting
certain rights or freedoms is one aspect that will be considered when the ECtHR looks into
the proportionality of a coercive power restricting human rights. In that regard, the ECtHR
has always been highly critical of giving excessively wide and discretionary powers to the
executive.1071 For example, on several occasions the Court has found search warrants to be
too ambiguous in scope.1072
c. Privilege against self-incrimination
It can rightly be asked how far the privilege against self-incrimination, which follows from
human rights law,1073 protects the suspect or accused from being compelled to provide
materials for executing certain tests, including DNA tests. Constant ECtHR jurisprudence
underlines that the privilege against self-incrimination lies at the heart of a fair procedure
(Article 6(1) of the ECHR). However, the right not to incriminate oneself is primarily
concerned with respecting the will of an accused person to remain silent. It does not extend
to the use in the criminal proceedings of material which may have been obtained from the
accused through the use of compulsory powers but which exist independent of the will of
the accused. The privilege does not extend to the taking of blood, breath, urine, voice, or
other bodily samples, including for the purpose of DNA testing.1074
In the Delalić et al. case, the ICTY Trial Chamber did not make any reference to the
jurisprudence of the international human rights courts.1075 Instead, the Trial Chamber
interpreted Article 21(4)(g) of the ICTY Statute as a self-standing provision, and by doing so
the decision widened the scope of the privilege against self-incrimination, surpassing the
existing human rights protection.
(p. 306) d. Inhuman and degrading treatment
It cannot be excluded that examinations of body and mind may amount to inhuman or
degrading treatment, which is prohibited under international human rights law.1076 The
leading case of the ECtHR in this regard is Jalloh.1077 Where forcible medical intervention,
interfering with a person’s physical integrity, is used to retrieve evidence of the crime from
the inside of the individual’s body, ‘rigorous scrutiny’ of all surrounding circumstances is
required. This includes the availability of alternative methods of recovering the evidence,
the seriousness of the offence, the risks involved for the health of the suspect, the manner
in which the procedure is carried out and the degree of medical supervision available.1078
Such intervention must not attain the minimum level of severity that would bring it within
the scope of Article 3 ECHR (torture or inhuman or degrading treatment or punishment). In
casu, the Court found the forcible administration of emetics to obtain evidence (drugs) will
constitute inhuman and degrading treatment or punishment where it attained the minimum
level of severity required. This minimum level will help in assessing whether less intrusive
methods were available, whether the manner in which the procedure was executed ‘was
liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of
humiliating and debasing’ the person concerned, and whether the procedure involved
health risks or resulted in both physical and mental pain.1079
a. Requirement of judicial authorization
Both common law and inquisitorial criminal justice systems often require the issuance of a
judicial warrant before the prosecutor can resort to the use of coercive measures.1080 On
the basis of an analysis of 33 national reports, Ambos concluded that ‘[i]n general, the
Prosecutor may not initiate compulsory measures without judicial authorisation’, and that
such a requirement was shared by most national systems surveyed.1081 Nevertheless, it is
argued here that no general principle of law requiring judicial authorization can be
identified.
Ambos’ analysis reveals that in all common law countries surveyed, the issuance of
warrants for coercive measures is ‘the most exclusive judicial competence during the pre-
trial phase’.1082 While this is true, the police have wide-ranging coercive powers and can
initiate coercive investigative acts without judicial or prosecutorial authorization. For
example, while English law in principle requires a judicial authorization for searches of
premises, there are many exceptions to that rule authorizing the police to conduct searches
without a warrant.1083(p. 307) Also personal searches can be conducted in this manner.1084
DNA samples can be taken by the police without judicial authorization.1085 On the other
hand, under English law, the interception of communication does now require a prior
judicial authorization by a judge acting as commissioner.1086 In the US and Canada, the
prosecutor normally lacks compulsory powers and should obtain a judicial
authorization.1087 However, while the US Fourth Amendment requires a judicial warrant for
the execution of searches, several exceptions exist, including where the search is executed
in the hot pursuit of a suspect1088 or for further search of the premises, in the form of a
protective sweep, based on the reasonable suspicion that accomplices are hiding there.1089
In inquisitorial criminal justice systems, judicial intervention is normally required to protect
the person concerned against undue infringements of his or her rights.1090 While criminal
justice systems characterized by a judge-led investigation, like France and Belgium, require
judicial authorization,1091 the prosecutor traditionally has limited compulsory powers.1092 In
criminal justice systems with a prosecutor-led investigation, the picture is diverse. In
Germany, an authorization by a judge is normally needed, except where this would delay the
proceedings.1093 In the Netherlands, the police and the prosecutor may initiate certain
coercive measures, which do not require a prior warrant. Only the more intrusive or far-
reaching coercive powers require prior judicial authorization.1094
(p. 308) Given the absence of an explicit requirement of prior judicial authorization for the
initiation of coercive measures, it may be asked whether this requirement could be
considered a general principle of law that might fill the existing lacuna where the statutory
documents of the international criminal tribunals are silent. The limited comparative
exercise just conducted shows a rather diverse picture. For example, the distinction
between investigative acts that presuppose judicial authorization and those that do not is
not identical in all states.1095 Hence, it cannot safely be concluded that the requirement of a
prior judicial authorization constitutes a general principle of law.
b. General threshold
National criminal justice systems often establish a minimum threshold and provide for a
triggering mechanism for the use of coercive measures in the course of criminal
investigations.1096 A comparative study by Vervaele on the basis of reports received by 17
states concluded that most countries seem to adhere to a ‘reasonable suspicion
requirement’ for the use of coercive measures.1097 An often-cited example is the Fourth
Amendment to the US Constitution that requires the showing of a ‘probable cause’ before a
search warrant may be issued. Normally, English law requires the existence of ‘reasonable
grounds for believing that an indictable offence has been committed’ before an entry and
search of premises may be authorized.1098 Under Canadian law, the search of premises
presupposes that a judicial official be satisfied by information on oath that there are
reasonable grounds to believe that the prescribed items will be found at the place to be
searched, and will provide evidence of an offence, or the whereabouts of the person
believed to have committed an offence, or anything reasonably believed to have been used
for committing any serious offence against a person.1099 Belgian law requires the existence
of serious indications that a crime has been committed.1100 Contrary to these national
criminal justice systems, specific thresholds for the use of coercive measures are only
provided for at the SPSC and the ECCC.
c. Proportionality
As indicated earlier, the proportionality requirement relied upon by the ICTY is reminiscent
of the German Rechtstaatsprinzip.1101 A principle of proportionality of coercive measures
governs the German Vorverfahren or Ermittlungsverfahren.1102 Also the French code de
procedure pénale stipulates that coercive measures to which a person suspected or
prosecuted is subjected should be strictly limited to ‘what is necessary for the process,
proportionate to the gravity of the offence and should not infringe human dignity’.1103 In
Dutch criminal procedure, a general principle of proportionality derives (p. 309) from the
‘Beginsel van redelijke en billijke belangenafweging’, requiring a balancing of the aim
pursued and the action taken, that is between truth-finding and the infringement on the
rights and freedoms of the suspect or accused.1104 These domestic laws are in line with the
aforementioned principle of proportionality of coercive measures as deriving from human
rights law.1105
Most coercive measures serve the broader goal of ‘truth-finding’ or support other coercive
measures that serve this goal (e.g. the seizure of evidence through a search operation).
Nevertheless, some coercive measures were found to serve other goals. For example, the
freezing of assets serves the administration of justice in facilitating the execution of the
arrest warrant by disrupting the support networks of the suspect. It may also enable the
execution of the sentence or the restitution of property. At the ICC, a fine or a forfeiture of
proceeds, property, and assets, may serve the reparative function of restitution and
compensation to victims. In this regard, the provisional freezing of assets may also support
the goal of international criminal justice of providing satisfaction to victims.
More importantly, if one of the objectives of international criminal procedural law is to
protect the due process rights of the defendant, it could be argued that a judicial warrant
for non-custodial coercive measures issued by an international judge is sometimes to be
preferred. First, it is possible that an international request to conduct coercive measures
does not require a warrant under domestic law. Besides, the national judge may not always
be best placed to assess the request and may lack the overview and necessary
information.1106 For example, to some extent, the international judge may have more
information to assess the necessity of an investigative act. In some situations the national
authorities might exercise restraint in controlling coercive measures that are executed on
behalf of an international tribunal and towards whom they have an obligation to cooperate.
The requested state may also be reluctant to accept responsibility for any irregularities that
might occur.1107 There may also be situations where judicial authorization is not required at
the national level for the specific measure sought, or such authorization requirement may
be circumvented in practice. If so, a lacuna may exist in the protection of the defendant
without judicial control by an international judge.1108
Post-hoc authorization or supervision by the international criminal tribunal of coercive
measures taken by national authorities is equally problematic, because the international
judges may lack the required knowledge of the national criminal justice system, or there
may be some sensitivity where it involves international judicial supervision of domestic
measures, including the application of national law and/or the compliance of those laws
with international human rights standards.1109 Indeed, the ICTR has previously argued that
the sovereignty of the state concerned prevents it from supervising the lawfulness of (p.
310) coercive measures executed by national law enforcement personnel under national
law.1110 However, there is also case law indicating no such constraint.1111 In some cases,
post-authorization may be less problematic or even be preferable, e.g. in cases of urgency.
Therefore, while a formal requirement of a prior authorization by a judge or Chamber of the
international criminal tribunal may be time-consuming or sometimes duplicative, e.g. where
national criminal justice systems require domestic judicial authorization,1112 in some
circumstances such pre-authorization may offer the fullest protection for the suspect or
accused person, and ultimately for the admissibility of the eventual evidence collected.
iv. Synthesis
The law and practice of the tribunals reveal, in most cases, the absence of an express
obligation to obtain judicial authorization from the tribunal before coercive measures can
be taken by the prosecutor. Hence, there appears to be a tension between international
criminal procedural law and international human rights norms and practice. Non-custodial
coercive measures by their very nature infringe individual rights (right to privacy, right to
property). Given the broad and unrestricted coercive powers the international prosecutor
has or may request, human rights law requires the issuance of a judicial warrant (pre- or
post-authorization).
To the extent that the jurisprudence of the international criminal tribunals requires that
non-custodial coercive measures are proportionate, this is in line with international human
rights standards. Under human rights law, the requirement of proportionality follows from
the need to balance different competing interests of the right at stake (right to privacy,
right to property) and the limiting interest in a particular case.
From a limited comparative survey it may be concluded that many domestic criminal justice
systems require a judicial warrant before the prosecutor can resort to the use of coercive
measures. Nevertheless, no general principle requiring prior judicial authorization could be
discerned, since most of the considered criminal justice systems envisage important
exceptions to the requirement of a prior judicial authorization.
Notwithstanding the conclusion that many national criminal justice systems set certain
thresholds for the use of coercive measures, no further conclusions could be drawn as to
whether such a threshold for non-custodial coercive measures is necessary in international
criminal procedural law.
The law and practice on the use of non-custodial coercive acts do not reveal important
tensions between the different idiosyncratic goals of international criminal justice.
However, if respecting the due process rights of the defendant is one of the objectives of
international criminal procedural law, the prior judicial authorization of non-custodial
coercive acts will avoid any lacuna in the protection of the defendant.
(p. 311) C. General Rules and Principles of International Criminal Procedure
i. Principles
The prosecutorial power to collect evidence includes the power to make use of non-
custodial coercive measures.
[Art. 18(2) ICTY Statute, Art. 17(2) ICTR Statute, Art. 15(2) SCSL Statute, Rule
39(i)–(ii) ICTY RPE, ICTR RPE, and SCSL RPE; Art. 54(3)(a) ICC Statute; Art. 11(5)
STL Statute, Rule 61(i) STL RPE; Section 7.4 TRCP]
ii. General rules

Unless otherwise authorized, the prosecutor shall request the assistance of the competent
national judicial or prosecutorial authorities for the execution of non-custodial coercive
measures.
[ICTY case law; Arts 57(3)(d) and 99(4) ICC Statute]
Non-custodial coercive investigative action shall be proportionate.
[ICTY case law, ICC case law, Rule 21(2) ECCC IR]
An inventory shall be made of all items and documents seized from the accused.
[Rule 41(B) ICTR RPE and SCSL RPE, Rule 50(2) and (5) ECCC IR, Rule 61(2)–(3)
ECCC IR, Section 15(5) TRCP]
Assets belonging to the suspect or accused may be provisionally seized or frozen in the
course of the investigation.
[ICTY and SCSL case law; Arts 57(3)(e) and 93(1)(k) ICC Statute]
D. Recommendations
The absence of a requirement to obtain judicial authorization from a tribunal judge or pre-
trial chamber for coercive measures is problematic from a human rights perspective. This
lacuna can be partly explained by the fact that international courts and tribunals normally
take such measures through national authorities, who in turn need to obtain a judicial
authorization pursuant to their domestic law. Nonetheless, it is possible that some coercive
measure may not require authorization at the domestic level in certain states. In other
situations, the prosecutor may be able to execute the measure directly through an
executing agency, without judicial supervision, as with SFOR search and seizure operations
conducted on behalf of the ICTY prosecutor in Bosnia and Herzegovina. Prior judicial
authorization of non-custodial coercive acts will avoid any lacuna in the protection of the
defendant. Therefore, it is strongly recommended that the international criminal tribunals
adopt, in line with the ECCC and SPSC, a rule requiring judicial authorization for the use of
non-custodial coercive measures where no judicial authorization is required at the domestic
level or where such measure is taken directly on the territory of a state by the international
prosecutor. An exception to this rule could be made for situations of urgency, by providing
for some form of ex post judicial control.
It is further recommended that the international criminal tribunals adopt a minimum
threshold for non-custodial coercive measures, such as a ‘probable cause’. No specific
threshold currently exists in international criminal procedure. The only exception can be (p.
312) found in the TRCP, which require, in relation to searches, that there be ‘reasonable
grounds to believe that such search would produce evidence necessary for the investigation
or would lead to the arrest of a suspect whose arrest warrant has previously been issued’.
The drafting history of the ICC reveals that it was proposed, inter alia, to make search and
seizures dependent on the determination of an ‘adequate cause’, but that this provision was
not adopted.
Given that non-custodial coercive measures infringe individual rights, the principle of
proportionality should entail that any judicial warrant stipulate the places that may be
searched, the items that may be seized, the persons involved in the operation or, in case of
the interception of communication, that any judicial warrant indicate the duration of such
interception, and the procedure to be followed in transcribing or drawing up a log of such
intercepted communications.
The rule that an inventory should be made of items and documents seized during a search
operation should become a principle.
4. Restriction and Deprivation of Liberty

Restriction and deprivation of liberty occupy a central place in criminal procedure; this is
no different in international criminal proceedings. As in national criminal proceedings, the
restriction and deprivation of liberty of an individual who is presumed to be innocent raises
pertinent questions of fairness and efficiency.
The deprivation of liberty—as an aspect of criminal procedure—cannot be allocated to any
specific stage; in fact, it can run from the pre-trial phase up to and including the appeals
phase. But as a general rule—and especially in international criminal proceedings—
deprivation of liberty, in the form of arrest and detention on remand, occurs and is most
litigated in the pre-trial phase. In certain ways, deprivation of liberty is a condicio sine qua
non in respect of reaching subsequent stages in international criminal proceedings. Trials
in absentia are—besides the exceptions of the post World War II IMTs and the STL—
prohibited, and many of the individuals indicted by international criminal tribunals refuse to
surrender themselves voluntarily.
As a result, for both conceptual and practical reasons, the deprivation of liberty, will be
examined as a matter within the pre-trial phase.
This section is structured as follows. Looking at it chronologically, the normal sequence
would be: arrest outside the seat of the court,1113 detention on remand outside the seat of
the court, surrender, and detention on remand at the seat of the court. The authors have
opted to distinguish thematically between arrest and detention on remand, the latter
including detention at both the national level and at the seat of the court. Surrender—or
transfer—of arrested persons to international criminal tribunals, although entailing by
definition the deprivation of liberty, merits no separate attention in this context; the
deprivation of liberty during surrender is too short and can also be categorized as
deprivation of liberty at either the national level or at the seat of the court.
(p. 313) 4.1 Arrest

Arrest is undeniably one of the most intrusive coercive measures in law enforcement,
especially when followed by detention on remand. Arrest in international criminal justice
has a very basic connotation when compared to the variety of legal forms and terms related
to deprivation of liberty in national criminal justice systems. In the latter, there exist
different modalities in depriving individuals of their liberty, different grounds for doing so,
different evidentiary standards, and different requirements to determine authorities
competent to deprive individuals of liberty, etc. This more complex set-up finds its basis in a
complete justice system, dealing with all types of crime, and a justice system where there is
direct contact between authorities and individuals. International criminal justice is highly
reactive, usually coming into play years later, and dealing with only the most serious of
crimes.
The simplicity of the notion ‘arrest’ in international criminal justice is striking. Another
important distinctive feature is that arrest in this particular context tends to be coupled
with ‘surrender’. Surrender seems to be the immediate purpose of arrest, but after
surrender the ensuing deprivation of liberty continues elsewhere, at the seat of the tribunal.
To understand properly the importance of arrest for international criminal proceedings one
must bear in mind that trials in the absence of the accused are ruled out in contemporary
international criminal justice, with the exception of the STL. While this makes arrest a
precondition for any trial to start, its importance of course goes beyond the prohibition on
trials in absentia. Even when trials in absentia are possible, these have very little authority
and should not undermine efforts to obtain arrests.
The law and practice related to arrests differs significantly among different international
criminal tribunals, as will be examined in the following.
i. IMT and IMTFE
It is safe to say that because of the unique circumstances in which the IMT and IMTFE
functioned—as occupation tribunals—and because of the fact that there was not yet any
international human rights law securing the right to liberty, their respective laws and
practices on arrest and detention are of no value for contemporary international criminal
justice.
There were in the laws of the IMT and IMTFE no provisions dealing with the arrest and
detention of accused persons. This was because the accused were captured on the basis of
the laws of war and, as such, their arrest and detention was not a matter for the IMT and
IMTFE; they were simply made available by the occupying powers’ military. It appears that
each victorious power considered accused individuals as its own prisoners, rather than
prisoners over which the IMTs could exercise the power of detention/release.1114
When reading accounts as to how accused were ultimately selected for trial by the IMT it is
clear that their availability, as prisoners in the hands of the victorious powers, was an
important consideration.1115 Exceptionally, Martin Bormann was tried and convicted to (p.
314) death in his absence. There was no effort to obtain his attendance by issuing arrest
warrants or requests for assistance; moreover in the IMT Judgment Bormann’s death
sentence was not accompanied by a warrant for his arrest with a view to making the
execution of the sentence possible.
The accused at the IMT and IMTFE became available at the end of the war, when victorious
powers took control of German and Japanese territory, respectively. In Article 3 of the
London Agreement of 8 August 1945 the four allied powers agreed to make available to
each other—and to the IMT—alleged war criminals detained by them; they also agreed to
use heir best endeavours to make available to the IMT war criminals not present on their
territories. In practice, on the basis of this provision, the allied powers cooperated both
with each other and with the IMT by sending individuals in their respective detention
across jurisdiction to stand trial.
An exception to the ordinary course of events—i.e. arrest at the end of the war—was Rudolf
Hess, who flew to Scotland in May 1941 and was arrested and detained by the British
authorities since that date, until he was sentenced to life imprisonment by the IMT, a
sentence he served at Spandau prison, Berlin. His situation is in a way similar to that of one
of the ECCC accused who had already been detained for a considerable time prior to the
creation of the ECCC, a matter that will be discussed in ECCC case law.1116 However, in this
report the focus on instances of arrest and detention at the request of an international
criminal tribunal or otherwise directly related to existing international criminal
proceedings.
In the ICTY’s procedural system, the issuance of an arrest warrant, at the request of the
prosecutor, is connected to the confirmation of the indictment (Article 19(2)).1117 The
evidentiary threshold for confirmation is that of a prima facie case (Article 19(1) ICTY
Statute/Article 18(1) ICTR Statute). Rule 47 of the ICTY and ICTR RPEs sets out the
procedure for submission of the indictment by the prosecutor, including matters such as the
required evidentiary threshold and the role of the judge in calling for additional evidence.
The landmark decision on defining a prima facie case came from Judge McDonald in the
Kordić case.1118 She ruled that ‘a prima facie case … is understood to be a credible case
which would (if not contradicted by the Defence) be a sufficient basis to convict the accused
on the charge’.1119 When confirming the Milošević indictment the confirming judge defined
a prima facie case as ‘a credible case which, if accepted and uncontradicted, would be a
sufficient basis on which to convict the accused.’1120 The standard is largely
uncontroversial. Of course, there can be disagreement if it is properly applied in practice,
but that is a different matter, not relevant for the purposes of this study.
As with many other procedural matters, the law on arrests had to be fleshed out in the RPE.
However, the RPE do not deal with it in a detailed way. The relevant provisions are Rules
40, 40bis, 54, 55, 56, 57, 58, 59, 59bis, and 61. These provisions add to the Statute the
prosecutor’s power to request a suspect’s provisional arrest and detention—under certain
conditions—and, very practically, try to strengthen the enforcement of arrest warrants at (p.
315) the national level. Surprisingly, neither the Statute nor the RPE require any specific
ground for an individual’s arrest. Both in domestic systems and human rights law any arrest
must be based on sufficient proof and serve a recognized purpose, such as eliminating a
risk of flight or preventing the risk of commission of further crimes.1121 The law and
practice of the ad hoc Tribunals seem to make the arrest a purpose in and of itself, or
regard it as an auxiliary coercive measure to ensure the individual’s appearance at the
Tribunals, and his or her continuing detention. The logical consequence thereof is that
detention is the rule and liberty the exception; this has also been formally codified for a
considerable time in Rule 65, dealing with provisional release.1122 Another arguably
missing element in the law of the ICTY is that the RPE do not provide for less intrusive
forms of legal process to obtain the appearance of the accused, like a summons to appear. It
is true that the broad language of Article 19 and Rule 54 does not directly exclude such a
possibility—and use could also be made of inherent or implied powers to issue a summons
to appear—but practice has been such that the confirmation of an indictment is followed by
the issuance of an arrest warrant. Arrest warrants are also not nullified by the fact that
certain accused have surrendered themselves voluntarily to the ICTY, it just means that the
execution of the warrant only takes place upon arrival in The Hague.
Litigation in respect of arrest warrants tends to concentrate on their method of execution
and related alleged irregularities. The issuance itself of arrest warrants has not triggered
particularly interesting case law, which can, in significant part, be explained by the fact that
these are ex parte procedures. There has been a rare case where the US District Court in
Laredo, Texas, ruled that the evidence in support of a request for arrest failed to meet the
standard set out in the Fourth Amendment to the US Constitution.1123 But there is no
avenue available for defendants at the ad hoc Tribunals to challenge the issuance of an
arrest warrant because of lack of sufficient evidence. The same applies to the question of
necessity—or grounds—for an arrest warrant; the necessity for initial deprivation of liberty
—via arrest—cannot be challenged by the detained person at an early stage. It is the issue
of continuing deprivation of liberty that has been the object of increasing litigation in the
form of applications for provisional release.
The case law pertaining to legality of arrest—including subsequent proceedings—is
generally not rooted in the violation of a specific provision in the legal framework of the ad
hoc Tribunals concerning issuance and execution of arrest warrants, but has its origin in
human rights law, especially habeas corpus rights. Contrary to the right to a fair trial, the
right to liberty—and rights in case of deprivation of liberty—are not part of the Statute. In
the RPE, the judges have inserted a provision obliging the registrar to ‘instruct the person
or authorities to which a warrant is transmitted that at the time of arrest the indictment
and the statement of the rights of the accused be read to the accused in a language that he
or she understands and that the accused be cautioned in that language that the accused has
the right to remain silent, and that any statement he or she makes shall be recorded and
may be used in evidence’ (Rule 55(E)). However, there is no direct obligation incumbent
upon national authorities to respect the arrested person’s rights. In case law, the ad hoc
Tribunals have nevertheless applied such rights and provided remedies when national
authorities failed to respect the rights of the arrested person.1124 A distinction must be
made between (p. 316) case law dealing with unlawful arrest—e.g. by abduction or luring—
and case law triggered by alleged human rights violations following arrest, such as not
being brought promptly before a judge or not being informed promptly and adequately of
the charges.1125 In addressing these situations, the participants at the ad hoc Tribunals are
in no way assisted by provisions in the Statute and RPE. Participants may, in the absence of
a solid legal framework, be tempted to consider the arrest and treatment of individuals
within the sovereign domain of states over which no supervision can be exercised, as can be
encountered in certain decisions of Trial Chamber II of the ICTR.1126 But the prevailing
view currently seems to be that human rights violations committed in the framework of
arrests have a bearing on an individual’s right to a fair trial and must be addressed when
raised.1127 Arrested persons tend to seek, as a remedy for unlawful arrest at the ICTY and
ICTR, the termination of proceedings, on the ground of lack of jurisdiction. Less far-
reaching remedies have not been proposed by the defence and have therefore also not been
considered in that case law. In response to these challenges, the ICTY and ICTR have set a
relatively high threshold, in the sense that only egregious human rights violations could
warrant a lack of further jurisdiction.1128 This approach rejects the principle of male captus
bene detentus and has been followed in ICC practice.1129 The matter will be explored in
more detail in the section on Remedies as part of this working group report.
In case of urgency, the ad hoc Tribunals provide for a procedure for provisional arrest,
transfer, and detention, consisting of two modalities. First, pursuant to Rule 40, the
prosecutor has, in case of urgency, the power to request a state to arrest an individual
provisionally. There are notable discrepancies between Rule 40 of the ICTY RPE and Rule
40 of the ICTR RPE. The latter regulates detention at the national level in more detail. For
example, it deals explicitly with the situation of possible release by the custodial State (Rule
40(B)). Furthermore, the ICTR Rule contains forms of protection after transfer to the Court.
Remarkably, there is no protection whatsoever in either ICTY or ICTR Rule 40 for the
accused detained pursuant to Rule 40 at the national level. However, in Barayagwiza, the
ICTR Appeals Chamber ruled that Rule 40 and Rule 40bis must be read together and
interpreted restrictively; it also said: ‘We cannot accept that the Prosecutor, acting alone
under Rule 40, has an unlimited power to keep a suspect under provisional detention in a
State, when Rule 40bis places time limits on such detention if the suspect is detained at the
Tribunal’s detention unit.’1130 But this language has never been codified in an amendment
to that effect of Rule 40 of the ICTY and ICTR RPEs.
Secondly, Rule 40bis provides for the transfer and provisional detention of suspects at the
seats of the ICTY or ICTR. It thus concerns the situation in which an indictment has not yet
been confirmed. This procedure requires judicial intervention, but the evidentiary threshold
—a reliable and consistent body of material which tends to show that the suspect may have
committed a crime over which the Tribunal has jurisdiction—lies arguably lower than in the
case of an arrest warrant issued after confirmation of the indictment.
The SCSL RPE follow basically the law of the ICTY and ICTR. However, the focus is on
Sierra Leone, which is the only state having a duty to cooperate with the SCSL; third (p.
317) states—or ‘international bodies’—can be requested to arrest individuals, but have no
obligations to that end (Rule 56). The law regarding arrest has never been a big issue at the
SCSL. With the exception of the arrest of Charles Taylor, who was apprehended by the
Nigerian authorities and flown to Monrovia where he was arrested by UNMIL, and then
transferred to the Special Court, no arrest was the result of cooperation from a state other
than Sierra Leone. Furthermore, the legality of arrest itself was never challenged by any
accused. Charles Taylor challenged his arrest, but on the basis of perceived immunity from
arrest and, as a special case, cannot be considered in the framework of the law on
arrest.1131
iii. ICC
The ICC has, in common with its UN predecessors, a prohibition on trials in absentia. Yet,
its law regarding arrest differs radically in a number of respects. Both the Statutory
provisions and the RPE are far more detailed than the law of the ICTY/ICTR. Furthermore,
where the law of the ICTY/ICTR combines the procedural and cooperation (or internal and
external) elements of arrest, the ICC system makes a laudable effort at separating the
arrest procedure (Articles 58 and 59) from the legal assistance to be provided by states
(essentially Article 89), although some overlap is inevitable. In this part the focus is on the
arrest proceedings.
At the outset it must be mentioned that the overarching right not to be subjected to
arbitrary arrest—not present in the ICTY/ICTR Statutes—has found its way into the ICC’s
founding document in Article 55(1)(d). The provision is buried in the section on rights of
persons during an investigation. As such, it is unclear if the effect of this provision is to be
limited to the stage of ‘an investigation under this Statute’. This does not seem logical,
because the right not to be subjected to arbitrary arrest or detention is not limited to the
investigation phase. The approach adopted by Chambers seems to emphasize that detention
is the exception and not the norm.1132
Article 58 sets out the procedure to issue an arrest warrant or summons to appear. The
summons to appear is an alternative to the arrest warrant and can be issued when the Pre-
Trial Chamber believes that the summons is sufficient to ensure the person’s appearance
(Article 58(7)).1133 The summons does not seem to generate any binding effect upon the
individual (non-compliance with the summons is, for example, not listed as an offence in
Article 71); state cooperation will be required to fulfil the condition that the summons shall
be served on the person. It must be noted that failure to comply with the terms of a
summons can lead to the issuance of an arrest warrant, as follows from Rule 119(5). The
ICC has issued summonses for Bahar Idriss Abu Garda; Abdallah Banda Abakaer Nourain
and Saleh Mohammed Jerbo Jamus; Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and
Mohammed Hussein Ali; and William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap
Sang. A summons to appear was also applied for by the prosecutor, as an alternative to a
warrant, but was ultimately refused by the Pre-Trial Chamber in respect of Al Harun and
Kushayb, in the Darfur Situation, because the Pre-Trial Chamber was not satisfied that this
would ensure their appearance for trial.1134
At the heart of Article 58 is the double condition that (a) there is sufficient evidence to
justify arrest, and (b) that arrest appears necessary, for one of the alternative three grounds
set out in Article 58(b). These grounds are, broadly speaking, risk of flight, interests of (p.
318) investigation, and putting an end to commission of the crime. Other factors such as
social disturbance, which, for example, may be caused by a suspect remaining at large, and
the risk of recidivism/reoffending, are not mentioned as grounds justifying arrest.
One can distinguish three stages in the formal requirements attached to applications and
the issuance of arrest warrants. The prosecutor must comply with his obligations as to the
contents of an application for an arrest warrant (Article 58(2)). Then there is the duty for
the Court regarding the content of the arrest warrant (Article 58(3)). But to make sure a
state is in a position and under a duty to implement the arrest warrant successfully, both
the application and the warrant itself should also anticipate the obligations under Article 91
pertaining to the request for arrest and surrender. In particular, the sufficiency of evidence
under domestic law (Article 91(2)(c)) must be taken into account.
Whereas the ICTY and ICTR RPEs (Rule 40) have explicitly endowed the prosecutor with
the autonomous power to arrest individuals provisionally in urgent cases, a similar power
does not exist under the law of the ICC. As a result, the basis for any deprivation of liberty,
even in urgent cases, can only be found in the procedure set out in Article 58. This would
also imply that in urgent circumstances only the Pre-Trial Chamber can issue the arrest
warrant, with full respect for the evidence and grounds required under Article 58(1)(a) and
(b). Nonetheless, as the Bemba case has shown, the judges have revealed a willingness to
act quickly in relation to a prosecutorial application in urgent cases. They have done so
through issuing a warrant and a request for provisional arrest in relation to only a limited
number of the offences alleged, while considering and issuing a new warrant for the
pending offences at a later stage.1135
A striking innovative feature of the ICC law on arrest, when compared to that of the ad hoc
Tribunals, concerns the regulation of arrest proceedings outside the seat of the Court, thus
the execution of the arrest warrant by states. Article 59 is an ambitious provision, which
breaks with the law of the ad hoc Tribunals, where the execution of arrest warrants by
national authorities did not seem to be of much concern. Article 59 contains obligations for
states, rights for the arrested person, and procedures to be followed in case of granting the
arrested person interim release. Article 59 is intended to live up to the requirements
imposed by human rights law (right to liberty). The provision, however, also raises a
number of questions, such as the availability of effective remedies for unlawful arrest at
both the national and ICC level. An ICC Appeals Chamber decision in Lubanga goes in the
direction of marginal review of the manner in which national authorities respect individual
rights, thereby attributing significant discretion to national authorities in the application of
Article 59.1136 There is no case law yet on the situation where national authorities would
use Article 59 as a basis to provide remedies that may result in the release of the arrested
person.
The ICC Statute endows the Court with the power to also request states to arrest somebody
provisionally (Article 92). The ICC prosecutor has not, however, been endowed with the
power to request the arrest of an individual in the absence of a warrant in urgent cases.
Contrary to practice of other tribunals, provisional arrest under the ICC Statute is not
regarded as an arrest by the prosecutor. It can be contrasted to arrest based on a warrant
issued by a judge. Rather, ICC provisional arrest is to be regarded as a tool of cooperation
that deviates from the ordinary situation where a state is requested to arrest and surrender.
In other words, the Court is empowered, on an exceptional basis, to request provisional
arrest in urgent cases pending presentation of the formal request for surrender. As follows
(p. 319) from Article 92(2)(c) of the Statute, the existence of an arrest warrant is also
required for this request for provisional arrest. Also unregulated in the ICC Statute and
RPE is the possibility for non-State entities, such as international organizations or forces, to
perform arrest operations.1137
iv. SPSC
The SPSC has modelled its law to a significant degree on that of the ICC, but also includes
many elements of relevant domestic law. In respect of arrest, the law of the SPSC seems to
have been influenced by the ICC Statute only marginally and one therefore must assume
that the SPSC law on arrest derives predominantly from domestic provisions.
It must first be observed that Section 19A of UNTAET Regulation 2001/25 distinguishes
between arrests with and without a warrant. Arrests based on a warrant need not,
reminiscent of the ICTY and ICTR law and practice, serve a particular purpose; hence, only
sufficient evidence is required (Section 19A.1). But after issuance of the arrest warrant at
the review hearing, detention can only be continued if reasonable grounds justifying its
necessity exist (Section 20.7(c)). The grounds are specified in Section 20.8. They are largely
similar to the grounds in Article 59 of the ICC Statute, with the exception of the need to
ensure public safety and security (Section 20.8(d)). The latter comes close to the social
disturbance ground, which is lawful under human rights law, but missing in the ICC
Statute.1138 The police can also arrest individuals without a warrant, in specific
circumstances and on certain grounds, such as preventing flight (Section 19A.4). Some of
these circumstances appear hardly applicable to international criminal justice systems, like
the situation where an individual is caught in the act of committing the crime; this can be
explained by the incorporation of national standards in the law of the SPSC.
An interesting novelty in the TRCP, missing in the law and practice of ICTY, ICTR, and ICC,
is the obligation upon the police to inform the arrested person’s family of his/her arrest
(Section 19A.9).
Finally, mention must be made of the alternatives to arrest warrants. Interestingly, the law
of the SPSC does not provide for a summons to appear as an alternative for an arrest
warrant, which is the case at the ICC. However, it provides for quite a number of
alternatives for detention (Section 21.1: house detention of the suspect; the submission of
the suspect to the care or supervision of a person or an institution; a regime of periodical
visits of the suspect to an agency or authority designated by the investigating judge; the
prohibition of the suspect from leaving an area designated by the investigating judge; the
prohibition of the suspect from appearing at identified places or meeting a named
individual; the prohibition of the suspect from staying in the family home, if the alleged
crime is related to domestic violence). It is unclear whether these can only be ordered as an
alternative to detention, following the detention hearing after an arrest has been made, or
whether such an alternative can be ordered directly, in the absence of an arrest warrant.
v. ECCC
The law of the ECCC on arrest does not seem to have been inspired by international
criminal law and practice. The agreement between the UN and the Royal Government of (p.
320) Cambodia entrenched the primary role of Cambodian criminal procedure, which is
based on French law, with gaps to be filled by reference to international rules (see Article
12(1) of the Agreement).1139 Article 33 (new) of the ECCC law thus refers to Cambodian law
that governs bringing arrested persons before a judge. The ECCC’s Internal Rules contain
just a few provisions on arrest.
The most important elements of the law on arrest, namely the degree of proof and the
grounds on the basis of which arrest can be justified, are nowhere to be found in the
Internal Rules and it thus has to be assumed that this is all dealt with in Cambodian law.
The provisions in the Internal Rules on arrest concerns the power to issue summonses—for
which there is a duty to comply (Internal Rule 41), the question against whom arrest and
detention orders may be issued and their scope of application (Internal Rules 42, 43, and
44), the required formalities concerning arrest and detention orders (Internal Rule 45), and
the notice of orders (Internal Rule 46). In relation to all these provisions it is not possible to
tell (a) how they relate to Cambodian law and practice, and (b) if not already part of
Cambodian law, what is their origin in international procedural law, as required by Article
12(1) of the Agreement.
The case law of the ECCC pays significant attention to the law and practice of international
criminal tribunals. In the area of arrest, the biggest issues lie in the length of detention
periods and the fitness of elderly accused to be detained. These matters will be dealt with
later.
vi. STL
Article 18 of the STL Statute is a copy of the ICTY and ICTR Statutes and thus connects the
issuance of an arrest warrant to the confirmation of the indictment. This implies that the
matter of sufficiency of proof for an arrest is settled in that context. The STL RPE (adopted
March 2009) are clearly inspired by the RPE of the ICTY, but contain some important
deviations.
First, applying the principle of subsidiarity—namely that invasive coercive measures should
only be used when less damaging alternatives are not a feasible option—Rule 78 offers the
judge the power, at the request of the prosecutor or proprio motu, to summon a suspect to
appear. This is a very general provision also applicable to witnesses and is not dependent,
as is the case with the ICC, upon an expectation that the summons is sufficient to ensure
appearance.
Secondly, Rule 79, empowering the pre-trial judge to issue arrests warrants, at the request
of the prosecutor, sets out three alternative grounds justifying arrest. Although slightly
different language is used, these grounds are similar to the ones contained in Article 58(1)
(b) of the ICC Statute. These same grounds come back in Rule 102, dealing with requests
for provisional release; this provision stipulates that a request for provisional release may
only be denied when one of the grounds is still present.
The STL has issued an order in which it ended the detention of four individuals; it did so at
the request of the prosecutor on the basis that a suspect cannot be detained for longer than
90 days and that he had no further case against the accused, at least not sufficient evidence
to have an indictment confirmed.1140
(p. 321) vii. Synthesis
The law on arrest differs considerably among international criminal tribunals. One common
factor for all courts and tribunals, however, is that an arrest warrant—not being of a
provisional nature—must be issued by a judicial organ on the basis of sufficient evidence,
i.e. reasonable grounds to believe that an individual has committed a crime within the
jurisdiction of the relevant court. But the similarities end there. The ICTY-based law hardly
imposes additional restrictions and is by far the least protective of the rights and interests
of individuals; no grounds necessitating the arrest must be proven, the alternative to an
arrest warrant—a summons to appear—is not explicitly available; the prosecutor has the
power, in case of urgency, to request an individual’s provisional arrest (see later); and the
rule regulating implementation of arrest warrants, Rule 55, does not articulate explicit and
unequivocal rights and obligations. The law of the ICC has sought to improve the law of the
ad hoc Tribunals in at least three ways. First, the alternative to an arrest warrant, a
summons to appear, has been explicitly set out in Article 58(7). Secondly, Article 58(1)(b)
explicitly sets out the grounds for the issuance of the arrest warrant. Thirdly, the ICC
Statute regulates in more detail the execution of the arrest warrant by state authorities,
both imposing obligations on states and granting rights to the arrested person (Article 59).
However, the ICC Statute does not regulate arrests performed by non-state entities,
although this has been of significant importance for the ICTY (IFOR/SFOR). Also, at the
ICC, decisions on applications pursuant to Article 58 generally display more attention to the
requirements set out in Article 58(1) than their counterparts at the ad hoc Tribunals.
4.2 Detention on Remand and Provisional Release

Detention following arrest is referred to as detention on remand. Contrary to domestic
criminal justice systems, there is no complex sequence of stages in the deprivation of liberty
in international criminal justice; nor are there complex rules as to the duration of
deprivation of liberty, involvement of officials, places of detention, etc. Rather, it seems that
after arrest, the reasons and grounds justifying arrest continue to remain in force and that
only a request for provisional release, which is also dealt with in this section, can suspend
or end detention.
In dealing with detention on remand following arrest, one can distinguish between
detention in the custodial state and detention at the seat of the court/tribunal. For the sake
of simplicity both of them are examined in the later overview. Next, the law and practice of
international criminal tribunals on provisional release, i.e. the release prior to and pending
trial, will be examined. This will concentrate on applications for provisional release at
international criminal tribunals.
i. IMT and IMTFE
It has already been mentioned that the law and practice of the IMT and IMTFE on arrest
and detention is of no value for contemporary international criminal justice. This has, of
course, everything to do with the fact that the accused were arrested and detained by the
victorious/occupying powers and not at the request of, or under the authority of, the IMTs.
Moreover, at the time there was no international human rights law available on the right to
liberty.
The law and practice of the IMTs are silent on detention. To our knowledge, pre-trial
detention was never challenged before the IMTs. There were concerns about the conditions
(p. 322) of detention, occasioned by, among other things, the suicide of Robert Ley whilst
being held before trial. Moreover, there were concerns regarding whether certain accused,
Streicher, Hess, and Gustav Krupp, were fit (mentally or physically) to stand trial, but not
whether they were fit to be detained.1141 But it was never questioned that pending trial the
accused should be detained. There were, in any event, no explicit possibilities available in
the law of the IMTs to apply for provisional release and there was no role for the judges to
supervise the reasons for and duration of detention.
To the credit of the IMTs, it is acknowledged that the period of pre-trial detention—and the
period of detention pending trial—were relatively short, especially compared to the periods
one encounters in contemporary international criminal justice.
The law of the ICTY and ICTR contains almost no rules relating to detention in the custodial
state. What matters, as already mentioned, is the effective result of the arrest warrant
issued by the ICTY/ICTR judge, namely that the individual is brought into the custody of the
tribunal. The obligation of attaining this result incumbent upon States—in terms of both
arrest, detention on remand, and transfer—transpires clearly from Rules 40, 56, 57, and 58.
Especially from Rule 57, it follows that ‘[u]pon arrest, the accused shall be detained by the
State concerned’, which appears to leave no room for alternatives to detention after arrest.
Rule 65, dealing with provisional release, is only concerned with a situation of detention at
the seat of the tribunal.
Automatic detention in the custodial state should be understood against the background of
the enormous difficulties the ad hoc Tribunals have encountered in arresting indicted
individuals. Any form of release could have potentially frustrated the efforts to secure
accountability. Furthermore, regulation of detention in the custodial state may also not have
been regarded as necessary due to the duty to transfer detained persons swiftly to the ICTY
or ICTR, as laid down in Article 29 of the ICTY Statute and Article 28 of the ICTR Statute. In
other words, if detention in the custodial state is kept to a short duration there would seem
to be no need to regulate it from the ICTY/ICTR side.
Having said this, there is a risk that individual rights could be violated. When transfer is not
immediately forthcoming after arrest, the detained individual is in a difficult position. The
custodial state is under an obligation to continue detention and the ICTY/ICTR can only
pronounce itself on the detention when the individual is brought into the custody of the
tribunal. The violation of rights in a scenario where there is no urgency in bringing an
individual into the custody of the tribunal is by no means imaginary. The Barayagwiza case
offers a good example, where an arrested accused was detained for an excessive period at
the national level without access to redress.1142
It seems that in practically all instances, individuals whose arrest and transfer is requested
by one of the ad hoc Tribunals have remained detained at the national level while awaiting
their transfer to these Tribunals. Two known exceptions concern France, where
Munyeshyaka and Bucyibaruta were provisionally released pending their transfer
proceedings to the ICTR.1143 The reasoning from the French Court was that the two had
been under investigation for similar accusations in France since 2000, for which they were
(p. 323) not detained. Because they were always available to the judicial authorities and
complied with all conditions, the Court saw no need to detain them in respect of the ICTR’s
request for arrest and transfer.1144 In the US, a District Court Judge, in Laredo, Texas,
ordered the release of E. Ntakirutimana because he found that there was not enough
evidence to justify his detention—and subsequent transfer to the ICTR—under the Fourth
Amendment to the US Constitution;1145 his decision was reversed when the ICTR
supplemented the evidence.1146
When detained at the ICTY or ICTR following transfer or voluntary surrender, detention on
remand is continued as a rule. The legal basis for this continued detention can be found in
Rule 64, according to which upon an individual’s transfer to the seat of the ICTY/ICTR, he/
she shall be detained in facilities provided by the host country, or by another country. On a
literal reading, the Rule does not seem to apply to situations of voluntary surrender, but it is
without exception applied mutatis mutandis to these situations.
According to Rule 64 of the ICTY—but not of the ICTR—the accused may be held in facilities
outside the host country. It is unclear what purpose this possibility serves, which was the
result of an amendment to Rule 64. It could be the basis for detention outside the
Netherlands in relation to provisional release (e.g. when an individual is allowed to attend a
funeral of a relative in Serbia, detention in Serbia shortly before and after the funeral could
be ordered under this provision). But, Rule 65(C), by allowing for the imposition of
conditions to release, could produce the same result.
Common Rule 64 enables the ICTY/ICTR President to request the host state to modify the
conditions of detention. The ICTY President made use of this power in the Blaškić case,
when the accused was transferred to the host state but put under house arrest prior to his
trial.1147 However, it was apparently not regarded as an experiment worth repeating as no
other person has been put under house arrest since Blaškić, by virtue of Rule 64. Two
reasons can be advanced for this. First, with a growing number of accused detained on
remand, it became increasingly difficult, in the light of the principle of equality in
treatment, to single out certain individuals for privileged treatment. Secondly, it seems that
the host state was quite reluctant to cooperate in further house arrests due to the costs and
security issues.
Although Rule 64 is the direct title for detention on remand upon transfer—or voluntary
surrender—the law on detention on remand at the ICTY and ICTR is as good as exclusively
shaped by Rule 65. Rule 65 is an intriguing provision in the law of the ad hoc Tribunals,
which has provoked critical comments in the literature, undergone important amendments
since its inception in 1994, and has received a rather inconsistent interpretation and
application in practice.
Rule 65 regulates provisional release. It serves as a balance to Rule 64, and is triggered by
an application of the detained person. But the combined effect of Rules 64 and 65—
certainly until later amendments—was to create strong presumption in favour of detention.
This was exemplified for a long time by the practice of allowing release ‘only in exceptional
circumstances’, and the corresponding burden on the detained person to prove such.
Missing in the still primitive law of the ad hoc Tribunals is a mechanism of regular and
proprio motu review of detention. Moreover, the law falls well short of the sophistication (p.
324) found in certain national systems, where a distinction is sometimes made between
ending and suspending pre-trial detention.
In the further development of Rule 65, its interpretation and its application in practice, two
distinctions must be made. First, there are the periods before and after the amendment of
Rule 65, when the reference to exceptional circumstances was removed.1148 This
amendment was the starting point for granting more provisional release motions at the
ICTY. However, and this brings us to the second distinction, whereas the law and practice of
the ICTY has gradually evolved to favour provisional release, the ICTR has never issued
such an order. This is not only indicative of diverging approaches to the law, but also—as
will be explored—of a very different context.
The ICTY’s restrictive practice until the 1999 amendment is very well exemplified by the
rejections of applications for provisional release in the cases of, among others, Delalić et
al.,1149Kovačević,1150 and Kordić and Čerkez.1151 In Delalić et al., for example, the emphasis
was put on meeting all conditions cumulatively; these consisted of (a) the existence of
exceptional circumstances, (b) hearing the host state, (c) the Chamber being satisfied that
the accused would appear for trial, and (d) the Chamber being satisfied that the accused, if
released, would not pose a danger to any victim, witness, or other person.1152 There was
the tendency to concentrate on exceptional circumstances and when they were not met, it
was not necessary to examine the two remaining substantial requirements in depth.
Chambers have examined a number of factors under the umbrella of exceptional
circumstances. The continuing existence of reasonable suspicion and necessity for
detention have been accepted as relevant factors, just as the duration of the detention,
although they never actually gave rise to exceptional circumstances.1153
Although the exceptional circumstances threshold was hardly ever met, the remaining
requirements were sometimes briefly examined in the pre-1999 amendment case law.
Guarantees in the form of a bail bond or assurances from national authorities were
generally very critically assessed.1154 Chambers were also quite concerned that
provisionally released persons might jeopardize the willingness of witnesses to come and
testify at the ICTY.1155
Until the 1999 amendment there were only a few instances of provisional release, which
can be divided into two categories. Exceptionally, short time release can be ordered to allow
the accused to attend a funeral.1156 The other category consists of releases on account of
medical conditions, aimed predominately at accused who are terminally ill.1157
In 1999, the requirement of exceptional circumstances was removed from Rule 65(B) of the
ICTY RPE and it was further amended in 2001. The exact reasons for this rule change
remain uncertain. Judge Robinson, in his dissenting opinion in the Krajišnik case, explained
the amendment in the context of obtaining compliance with international (p. 325) (human
rights) law.1158 Another opinion expressed is that judges became more and more concerned
over the death of two defendants in custody and the depressive effects of lengthy pre-trial
detention.1159
Whatever the precise motive may have been, the central question is, of course, whether this
fundamental rule change did, in practice, produce a different approach by Chambers to
applications for provisional release. In the first case after the amendment, Kvočka et al., it
was held that the rule change did create a system of detention as the exception and release
as the norm.1160 In Kubura, judges underlined that a system of mandatory detention—thus
detention as the rule—would be incompatible with human rights law.1161 Instead of one
prevailing principled approach, the case law has gone in the direction of interpreting Rule
65(B) on a case-by-case basis; thus, detention is neither the rule nor the exception, it all
depends on the circumstances of each case.1162
Yet, the effect of the rule change was that ‘exceptional circumstances’ could no longer serve
as a generally decisive filter. The other requirements, which until 1999 were often only an
afterthought to ‘exceptional circumstances’, now became decisive in the determination of
provisional release. The remaining requirements now are (a) hearing the host country and
the country to which the accused will be released, (b) ensuring that the accused will appear
for trial, and (c) ensuring that release will not pose a danger to victims, witnesses, or any
other person. Interpretation of these remaining requirements was not affected by the rule
change; the burden of proof remained on the defence and that granting provisional release
remains at the discretion of the Chamber—even when all requirements are fulfilled.
However, the combined effect of the rule change and the improving circumstances on the
ground in the former Yugoslavia has triggered a significant increase in the granting of
provisional release of ICTY accused.
When considering the interpretation and application in practice of the three remaining
requirements, it must be mentioned first that hearing relevant states—host country and
country of release—does not substantively influence the provisional release decision. The
requirement is already satisfied when a state has been invited to a hearing.1163
The third requirement, concerning the risk of interference with victims/witnesses, is also
not the most important in practice. It is not—or at least not thoroughly—examined in
practice when release must already be denied because of risk of flight; under these
circumstances there appears little need to examine whether the second requirement is
satisfied. Moreover, in the post-1999 ICTY case law, it has become the prevailing view that
the mere ability of the accused to interfere with victims and witnesses is not sufficient
grounds for blocking his/her release.1164 The existence of such a risk has to be established
in concreto and objectively.1165
(p. 326) The requirement that the accused will appear for trial has become the most
important condition for provisional release since the 1999 rule change. In assessing this
requirement several sub-factors must be examined; the examination need not be
exhaustive, but must amount to a reasoned opinion.1166
One of the most important sub-factors for granting provisional release is whether or not the
accused has surrendered voluntarily. It was, for example, an important factor in granting
the provisional release of Talić and Zarić.1167 This is a marked break with the pre-1999 case
law, when voluntary surrender was neither considered an exceptional circumstance, nor as
a guarantee for appearance. Voluntary surrender as a sub-factor raises at least two
problems in practice. It cannot always be determined to what degree surrender has in fact
been voluntary. Moreover, persons already detained or persons who are the object of a
sealed indictment are prevented from surrendering voluntarily.
Whether or not the requirement of appearance for trial will be satisfied is furthermore
heavily determined by guarantees offered by the defence. A distinction tends to be made
between personal assurances and guarantees from the accused and guarantees coming
from governmental and other authorities. As to personal guarantees, they are offered in
every provisional release application and mostly contain the promise that the accused will
appear for trial, cooperate with authorities, and will comply with every condition imposed.
Although the ICTY Appeals Chamber has ruled that such personal assurances are a factor
that is taken into account when assessing the risk of flight,1168 they do not carry much
weight. This cannot be said for the guarantees given by (national) authorities; they are
essential for obtaining provisional release. The guarantees generally must include an
obligation to monitor the accused when released, to arrest him if he fails to appear for trial,
or to arrest him if he violates any of the conditions accompanying provisional release. The
biggest challenge for a Chamber is to determine the reliability of proposed guarantees.
Clearly, the matter is related to assessing the cooperation duties of states and other
entities. The Appeals Chamber in Mrkšić enunciated the general test that it must be
determined what would occur if the relevant authority were obliged to arrest the accused
person seeking provisional release in that case.1169 Past performance in respect of
cooperation has some relevance, but should not be given too much weight.1170 It seems that
Chambers have considerable discretion, also in the light of the ‘vagaries of politics’, in
assessing the reliability of assurances. Although the connection between a state—or entity’s
—overall cooperation record and the reliability of assurances is somewhat loosened, it
should—on the other hand—come as no surprise that the increasingly positive appreciation
of the guarantees coming from authorities coincides with markedly improved cooperation.
Other positive factors taken into account in the post-1999 jurisprudence are cooperation
with the prosecutor, the general character of the detained person, and the fact that
previous instances of early release did not prove problematic.1171 The gravity of the
charges, on the other hand, was not regarded a legitimate factor justifying denial of early
release. This (p. 327) followed the case law of the ECtHR, according to which, pre-trial
detention may not be used in anticipation of a lengthy sentence of imprisonment.1172
After evaluation of the requirements, the complex task of exercising discretion comes into
play. Until the 1999 rule change, this was hardly an issue because the ‘exceptional
circumstances’ threshold was as good as impossible to satisfy. The risk with discretion in
respect of detention is that one can potentially justify detention under all circumstances. A
considerable number of factors have been considered in the exercise of discretion and
cannot all be mentioned and addressed here. An important one is the length of the pre-trial
detention. This factor must be examined in relation to discretion and not as one of the
substantial requirements.1173 But provisional release was never granted exclusively on the
basis of lengthy pre-trial detention; it is rather an important overall factor in the
background.
There appears to be a separate regime for provisional release on humanitarian/
compassionate grounds in the case law of the ICTY. Provisional release on these grounds
has been allowed even when the written requirements were not satisfied; it was considered
to be within the Chamber’s discretion in the post-1999 case law.1174 These types of
provisional release relate to matters such as the serious ill-health of family members and
attending funerals, and only lasted a period of a few days.
In spite of a common Appeals Chamber, the practice of the ICTR differs from that of the
ICTY in respect of provisional release. For some considerable time, there remained a
difference in applicable law. Whereas the ICTY removed the exceptional circumstances
language from Rule 65 in 1999, it took the ICTR until 2003 to do the same. In the period
between 1999 and 2003, it comes as no surprise that arguments were frequently made for
the amended ICTY Rule to be followed, the ICTR being no longer consistent with human
rights law. However, these arguments fell on deaf ears; the ICTR judges maintained their
own rule.1175 As a result, Chambers closely adhered to the pre-1999 ICTY case law until the
2003 amendment. The leading case at the ICTR that was followed in later case law is the
2001 rejection of provisional release in Kanyabashi.1176 The strong reliance on exceptional
circumstances in that case represented a similar jurisprudential approach as the early ICTY
case law.
The interesting question is, of course, whether the 2003 removal of exceptional
circumstances also gave momentum to a more permissive practice in respect of provisional
release. Here the ICTY and ICTR really part ways. The ICTR, in spite of the rule change,
never ordered the provisional release of any accused.1177 It was said that the elimination of
exceptional circumstances somewhat alleviates the task of the accused, but applicants must
still satisfy other criteria.1178 The major difficulty in respect of ICTR applications for
provisional release is that there are no assurances that the released accused will appear for
trial, as no state—or other appropriate entity—has ever provided specific assurances of (p.
328) return.1179 Even if such explicit assurances are not a set prerequisite under the RPE,
they are considered strongly advisable in the light of the gravity of the charges.1180
Over the years, the Appeals Chamber corrected the ICTR Trial Chambers’ approach
towards the risk of flight in certain ways, and tried to bring it more into line with ICTY case
law. As late as 2009, the Appeals Chamber confirmed that Rule 65 places no obligation upon
an accused applying for provisional release to provide guarantees from a state as a
prerequisite to obtaining provisional release. Further, it reversed the ICTR Trial Chamber in
emphasizing that even in the absence of a state’s guarantees, personal circumstances could
satisfy the Court that an acused would appear for trial if released.1181
The Appeals Chamber’s reversal, however, proved to be essentially symbolic; it did not
result in the provisional release of any ICTR accused. Even strong compassionate or
humanitarian grounds, such as serious illness of a family member, have never triggered
provisional release,1182 although the Karemera et al. Appeals Chamber emphasized that
humanitarian and medical grounds advanced by a detained person are relevant factors in
deciding on the risk of flight.1183 Interestingly, compelling humanitarian reasons take on a
different dimension after the close of the prosecution case; at that moment, provisional
release should only be granted when sufficiently compelling humanitarian reasons exist,
making it the exclusive basis for provisional release during trial.1184 This has been met with
a dissenting opinion from Judge Liu, saying that the ‘requirement amounts to reinstating,
for post-Rule-98bis proceedings, the criterion of “exceptional circumstances”’.1185
The applicable law of the SCSL was supposed to incorporate the RPE of the ICTR, but it
contains some interesting deviations in respect of pre-trial detention and provisional
release. Rule 65 is also, at the SCSL, the vital rule on provisional release. But instead of the
neutral terminology of provisional release, the rule at the SCSL deals with bail. Bail is a
typically Anglo Saxon/common law condition of provisional release. It involves some form of
property deposited or pledged to a court to persuade it to release a suspect from jail, on the
understanding that the suspect will return for trial or forfeit the bail (and possibly be
brought up on charges of the crime of failure to appear).
Rule 65(A) of the SCSL RPE stipulates that ‘Once detained, an accused shall not be granted
bail except upon an order of a Judge or Trial Chamber’, and (B) says that bail may be
ordered by a judge or a Trial Chamber ‘after hearing the state to which the accused seeks
to be released and only if it is satisfied that the accused will appear for trial and, if released,
will not pose a danger to any victim, witness or other person’. Paragraph (C) of Rule 65
contains the rule that a person can only apply for bail once, unless there is a material
change in circumstances. The posting of a bail bond is mentioned as a condition to
provisional release in paragraph (D) of the rule.
The reference to ‘bail’ and also the absence of ‘exceptional circumstances’ in Rule 65 may
have given the impression that provisional release could be obtained more easily at the
SCSL than at the ICTY and ICTR. Yet, no person has been granted bail at the SCSL under
Rule 65 and a system of bail has never really materialized. From the case law of the SCSL it
follows that it decided to be as restrictive as the ICTR in respect of provisional release; it
added a few interesting considerations in refusing provisional release.
(p. 329) In the first SCSL decision on an application for bail, in Brima et al, the SCSL drew
from from the rule change at the ICTY removing exceptional circumstances.1186 Yet, as at
the ICTY, this did not have much effect in practice. The effects of release for the still
relatively fragile societal stability in Sierra Leone were an important consideration in the
decision to dismiss the application. The court seriously doubted whether Sierra Leone could
locate and recapture the suspects in case of flight. In addition, the likelihood of resulting
public disorder occasioned by release was identified as a specific and important factor
denying release.1187 The risk of disturbing public order, as a ground justifying detention, is
an innovative feature of the SCSL and has been confirmed in subsequent provisional release
decisions.1188 The SCSL Appeals Chamber confirmed that it is legitimate to take contextual
factors, such as the risk of public disorder, into account when deciding on applications for
provisional release.1189 Another unique aspect of the SCSL case law is that bail has also
been denied on the basis—in part—that release of the accused into Sierra Leonean society
could undermine his own safety.1190
In its 2005 decision in Norman et al, the SCSL Appeals Chamber discussed the changing
law and practice on provisional release at the ICTY and ICTR.1191 It was said that the
removal of exceptional circumstances, just like an increasing number of instances of
provisional release at the ICTY, did not change anything for SCSL practice.1192 It is true
that Rule 65 of the SCSL RPE never contained an ‘exceptional circumstances’ requirement.
But according to the Appeals Chamber, it would be wrong to infer from this a presumption
the other way. It was said that there was no presumption one way or the other; rather, each
case must be decided on its own merits.1193
iii. ICC
As already mentioned, the ICC Statute deviates from its predecessors in that it regulates
both arrest and ensuing detention in the custodial state (Article 59). The drafting history of
Article 59 reveals that the responsibilities of states in deprivation of liberty and the
corresponding rights of detained individuals were given much more thought than was the
case at the ad hoc Tribunals.1194 This has resulted in a provision that (a) contains rights for
arrested persons, (b) contains obligations for arresting states, and (c) regulates interim
release at the national level. Sections 1 and 2 of Article 59 deal with arrest proceedings, but
the remaining sections concern detention following arrest. Again, detention following arrest
is implicitly regarded as self-evident in Article 59. Article 59(2) sets out the procedure that
must be followed and entails, among other things, that a judge determines that the person
has been arrested in accordance with the proper process, and that the person’s rights have
been respected. However, it does not provide that serious violation of rights can or even
should terminate the detention. From Article 59(4), stipulating that the duty to surrender
must be fulfilled, it can be inferred that national authorities cannot terminate detention
permanently; at the very least it will have to be resumed to ensure surrender.
Sections 3, 4, 5, and 6 of Article 59 confirm the presumption in favour of continuing
detention by the custodial state. The arrested person has the right to apply for interim
release (Article 59(3)), but a favourable decision can only be taken if there are urgent and
(p. 330) exceptional circumstances justifying it (Article 59(4)), and after having given full
consideration to recommendations from the Court (Article 59(5)).
Rule 117 of the ICC RPE contains a number of seemingly important additions to Article 59.
It provides for the right to request of the Pre-Trial Chamber appointment of counsel to
assist with proceedings before the Court, as well as for the right to challenge the legality of
the arrest warrant from the moment of detention in the custodial state. The right to such an
appointment of counsel to surrender proceedings has not yet been effectuated in practice.
However, arrested persons have managed to challenge the lawfulness of arrest while in the
custodial state.1195 Rule 117 gives the detained person the right to challenge the legality of
the ICC’s arrest warrant with the Pre-Trial Chamber; this right is not explicitly provided for
once surrendered, but it may be considered part of the right to challenge the jurisdiction of
the ICC and/or the right to apply for release.
There is some tension in Article 59 between the obvious desire to strengthen the legal
protection of the detained person and the concern that such protection should not
jeopardize the ultimate surrender of the detained person to the Court. This is exemplified
by Article 59(4), which deals with the substantial aspects of provisional release applications
in the custodial state. Applications for interim release are not the exclusive domain of the
ICC; indeed, the latter is not best placed to supervise the activities of domestic law
enforcement bodies and their compliance with their own domestic laws. But with the dual
authority over interim release, at both the custodial state and at the ICC, one notices the
difference in applicable standards. When it comes to provisional release pending surrender
in the custodial state, Article 59(4) clearly regards this as an exceptional situation, bearing
in mind the reference to ‘urgent and exceptional circumstances’. This could be seen as
reviving, in the ICC context, the discussion on ‘old’ Rule 65 of the ICTY and ICTR, namely
that detention should be the exception (instead of liberty). It may, however, also be argued
that when the situation concerns minor violations of national arrest procedures there is a
high threshold in favour of detention. Another limitation on the powers of national courts is
that Article 59(4) preserves the authority of the arrest warrant, by stipulating that the
custodial state may not consider whether the warrant of arrest was properly issued. It has
not been decided yet in case law how far this restriction goes.
It is also quite difficult on the basis of the drafting history to indicate with precision what
the custodial state is allowed—and for that matter, also obliged—to do under Article 59. The
provision potentially raises problems, both when too much protection is offered—resulting
in the release of the arrested person—and when too little protection is offered, which is
inconsistent with the provision’s object and purpose.1196
There is not yet any ICC case law dealing with the question of ‘over-protection’, in the sense
that a state has, on the basis of Article 59, ordered the release of an arrested person. In this
respect one must also acknowledge that the period between arrest and surrender—‘pending
surrender’—has been very short in respect of most individuals that have been surrendered
to the Court, although at least two arrested persons have made exhaustive challenges in the
custodial state prior to surrender.1197 By contrast, a state that is reluctant (p. 331) to
surrender an individual to the Court is unlikely even to arrest the individual concerned and
hence trigger Article 59 proceedings, resulting in non-compliance.1198
The Court has been seised of the reverse scenario, namely that the surrendered person
complains of a lack of sufficient protection by the custodial state during arrest and
surrender proceedings. In Lubanga, the Defence argued that Lubanga’s arrest and
detention in Congo violated human rights norms and that, as a result, the Court should no
longer have jurisdiction over the case.1199 The Appeals Chamber, inter alia, found that the
ICC’s task in respect of Article 59(2) was to see that the process envisaged by Congolese
law was duly followed and that the rights of the arrestee were properly respected.1200 It has
been a matter for debate to what degree the Appeals Chamber should supervise the
national arrest proceedings, especially when, in these proceedings, violations of
international human rights law have been raised.1201 It is probably too soon to tell whether
or not too much deference will be given to national law and practice, and whether there
may therefore not be much difference from the practice of the ad hoc Tribunals.
Once surrendered to the Court, the continuing detention and applications for provisional
release are governed exclusively by the law of the ICC. The relevant provisions in this
respect are Article 60, especially Sections 2–4 of the Statute, and Rules 118 and 119. In its
first years of practice, the Court has been confronted with a number of applications for
interim release, pursuant to Article 60(2) of the Statute. Despite numerous applications that
have been addressed by both the Appeals Chamber and lower Chambers, a clear and sound
analytical framework is yet to be established. Many aspects of the law concerning detention
on remand at the ICC remain problematic.
The initial question is to what extent continuing detention is the responsibility of the Court
or of the detained person. In other words, is there a system of proprio motu periodic review
of detention by the judges or does the initiative to end detention on remand lie with the
detained person, by applying for provisional release? Article 60(3) of the Statute obliges the
Pre-Trial Chamber to periodically review its ruling on release or detention—a period set at
120 days in Rule 118, but it does not specify what is meant by ruling on release or
detention. Does it only concern a previous decision on an interim application pursuant to
Article 60(2)—in which case the obligation of proprio motu review is limited—or should the
arrest warrant also be counted as a decision in the sense of Article 60(3)? The approach of
the Appeals Chamber supports the former interpretation: ‘The ruling that the Pre-Trial
Chamber is required to review pursuant to Article 60(3) of the Statute is the determination
that it has made in response to an application for interim release pending trial under Article
60(2). This is clear from the order of the statutory provisions.’1202 The practical
consequence of this interpretation is that if a detained person wishes to trigger the periodic
review by the Chamber under Article 60(3) he/she should first apply for interim release
pursuant to Article 60(2). In the course of the Article 60(3) procedure, a Chamber must
revert to the Article 60(2) ruling and determine whether there have been any changes in
the circumstances underpinning that ruling, and whether there are any new circumstances
that have a bearing on the conditions under Article 58(1) of the Statute.1203 According to
the ICC Appeals Chamber, the prosecutor does not carry the burden of needing to
repeatedly (p. 332) re-establish the facts underlying the issuance of the arrest warrant, but
he must show that there has been no change in circumstances, and he must bring to the
attention of the Chamber any other relevant information of which he is aware that relates to
the question of detention or release.1204
It follows from the foregoing that, as at the ad hoc Tribunals, the initiative of the detained
person is decisive in changing the detention situation. This brings us to the law and practice
on applications for interim release at the ICC.
There is a conceptual difference in approach here between the ad hoc Tribunals and the
ICC. At the ad hoc Tribunals, as already indicated, the arrest warrant is as good as
automatic upon confirmation of the indictment. As a result, applications for provisional
release have no substantive connection to the previous decision to issue the arrest warrant.
Provisional release at the ad hoc Tribunals is dependent upon substantive grounds that do
not exist and are not considered at the time of issuance of the arrest warrant. This indeed
appears curious, and the law of the ICC clearly seeks to remedy this disjunction. From
Article 60(2) it follows that the conditions set out in Article 58(1), which apply to the arrest
warrant procedure, are also the conditions—and the only conditions—in respect of the
interim release application. It must also be noted that there is no discretion in respect of
these conditions; when they are met, detention must be continued, if not, release is
mandatory, with or without conditions, as set out in Rule 119.1205
Although this seems a more logical approach than that taken at the ICTY and ICTR, and the
connection between the arrest warrant procedure and continuing detention is also known in
national jurisdictions, there is also the potential for some confusion and inconsistencies.
The problem is that the arrest warrants issued by the ICC concentrate very much on the
question of why a person should be arrested—thus not remaining free in the country where
the crimes have been/are committed—and then surrendered to The Hague;1206 there is
practically no attention paid to the question of whether continued detention in The Hague is
really necessary, as opposed to other conditions being imposed restricting liberty within the
Netherlands, while such anticipation in the light of Article 60(2) may be expected from the
prosecutor and judges. It may be that when released in the Netherlands, or in any other
state, there may be still a risk of flight, or the applicability of any other grounds set out in
Article 58(1)(b), but at least the issue needs to be discussed.
In the practice of the ICC there have been a number of applications for interim release. The
structure of the decisions and reasoning varies, but the vital factors in denying interim
release applications appear to be the continuing risk of absconding from the jurisdiction of
the ICC (Article 58(b)(i)) and the risk of interfering with investigations and witnesses
(Article 58(b)(ii)). In the first decision on an interim release application, in Lubanga, the
risk of absconding was specifically connected to the gravity of the crimes.1207 The fact that
the detained person, as a result of disclosure, got to know the identities of witnesses was
considered a risk, in that he could try to exert pressure on those witnesses.1208 There was
no discussion on such vital matters as the burden and standard of proof in respect of such
(p. 333) risks, nor was it explained how the Pre-Trial Chamber reached this conclusion.1209
However, when the matter was appealed, the Appeals Chamber unequivocally confirmed
the relevance and appropriateness of certain factors. It ruled that the gravity of the crime
may be used, not in isolation, but as part of a consideration that the detained person may
abscond, because this person might face a lengthy prison sentence.1210 Moreover,
international contacts of the detained person may also be used in assessing the risk of
absconding, because such contacts may assist him in doing that.1211 As far as the vital issue
of standard of proof is concerned—when can the judge be satisfied that a risk of absconding
does indeed (still) exist—the Appeals Chamber stated frankly that by its nature the
determination of a likelihood of absconding ‘necessarily involves an element of
prediction’.1212 With this statement it appears that lower Chambers are given considerable
latitude in their ‘risk assessment’. This finds confirmation in a later decision by the Appeals
Chamber, Ngudjolo, where it was said that: ‘The possibility of his absconding remains
visible. No material was placed before the Pre-Trial Chamber revealing such a possibility as
imaginary.’1213 This appears to suggest that the standard in respect of continuing
application of Article 58(1)(b) depends on the risk of absconding not being an imaginary
possibility, which leaves the parameters of such a finding quite broad. It might be inferred
from this ruling that the onus appears to be effectively put on the defence that absconding
is not an imaginary possibility. In the Bemba case, Judge Pikis voiced strong criticism in a
dissenting opinion about the restrictive approach that the ICC was seeking to establish in
respect of interim release applications.1214 His criticism comes, broadly speaking, down to
the following. Instead of assessing anew the basis and need for detention, Pre-Trial
Chambers are inclined simply to repeat findings made at the time of the arrest warrant and
also to put the burden of proof on the detained person.1215 Nonetheless, the Appeals
Chamber has clarified that the prosecutor still ‘bears the burden for establishing that the
detention of the person concerned is necessary’, must ‘provide information to enable the
Chamber to satisfy itself that continued detention is warranted’, and ‘must bring to the
attention of the Chamber any other relevant information of which he is aware that relates to
the question of detention or release’.1216
Whether or not inspired by Judge Pikis’s dissenting opinion, the Bemba case offered some
very interesting developments. The detained person was, in a series of applications, seeking
to obtain interim release, and was considering a number of countries to be released in. This
brought in a new dimension, which will also be analysed later, namely the role of states
other than the state of arrest and/or residence in making interim release possible.
In her decision of 14 August 2009, Single Judge Trendafilova concluded—on the basis of a
number of factors, including the good behaviour of the person in detention—that the
condition of Article 58(1)(b)(i) of the Statute was no longer satisfied.1217 She concluded that
there had been a substantial change of circumstances since her earlier decision rejecting
the application for interim release. The implementation of the decision was, (p. 334)
however, deferred pending a decision on the state to which Bemba would be released and
the conditions to be imposed on him. But, before the means of implementation could be
considered, the decision granting interim release was reversed by the Appeals Chamber.1218
The latter ruled that no change of circumstances had occurred justifying a modification of
the previous ruling, pursuant to Article 60(3) of the Statute.1219 Furthermore, the Appeals
Chamber concluded that interim release can only be granted if specific conditions are
imposed—if interim release is to be accompanied by conditions—and if a state has been
identified as willing to accept the person concerned, as well as to enforce related
conditions.1220
This decision raises a number of important questions concerning the potential for Pre-Trial
Chambers or Trial Chambers to review their previous detention rulings. The decision on
interim release has been approached by the Appeals Chamber under the umbrella of Article
60(3) of the Statute, which indeed requires a change in circumstances for a different ruling.
However, Article 60(2), dealing with the application for interim release, does not explicitly
require a change in circumstances in relation to the previous arrest warrant ruling and
would allow a judge/Chamber to assess anew whether detention is still necessary. It is in
this light not clear why a change in circumstances is specifically required for the Article
60(3) ruling. In the Bemba case it could thus be that the outcome—especially the reviewing
role of the Appeals Chamber—could have been different if the interim release decision was
taken on the exclusive basis of Article 60(2) of the Statute. Another problematic aspect of
the Appeals Chamber’s decision is that as it stands now, interim release without the
voluntary cooperation of a state in accepting the person is impossible, even if that is a
correct reading of the procedure prescribed by Rule 119. In the literature this result has
been criticized; notably, it has been suggested that the ICC Statute provides a basis for
requesting a state to cooperate in accepting a provisionally released person.1221
Since there has not yet been any case of provisional release at the ICC, there has been no
practice in respect of the conditions attached to, and monitoring of, provisional release.
Rule 119 contains a non-exhaustive list of conditions that the Pre-Trial Chamber may set in
restricting liberty. Failure to comply with a condition imposed may result in the issuance of
an arrest warrant (Rule 119(4)).
Although Rule 119 carries the title ‘conditional release’, the conditions restricting liberty
can also be imposed when the Pre-Trial Chamber issues a summons to appear, as follows
from Rule 119(5). But if the Pre-Trial Chamber intends to set conditions restricting liberty
accompanying a summons to appear, issued pursuant to Article 58(7), it must first
‘ascertain the relevant provisions of the national law of the state receiving the summons’.
Even then, the Pre-Trial Chamber can only impose those conditions that are in keeping with
that national law.
Pursuant to Rule 119(5), the conditions attached to a summons to appear must be
consistent with the national law of the state receiving the summons. Article 58(7) requires
that conditions attached to a summons need to be provided for by national law. There may
be some difference in interpretation between ‘provided for’ and ‘in keeping with’. More
important, however, is whether a state’s duty to cooperate with the Court, which arguably
also exists in respect of ensuring the effect of a summons to appear, requires its national
law (p. 335) procedures to be able to enforce the conditions attached to the summons, in
accordance with Article 88 of the Statute. Where a condition is deemed necessary for the
summons—such as not contacting witnesses—it should be imposed. If the condition cannot
be complied with for any reason, the issuance of an arrest warrant appears inevitable. The
ICC summonses already issued pursuant to Article 58(7) in the Kenya cases are
accompanied by conditions restricting liberty. However none of them applies Rule 119(5);
no mention is even made of it.1222 When the Pre-Trial Chamber had to decide on an
application seeking to vary the conditions attached to the summonses in the Kenyatta et al.
case, no mention was made of the procedure set in Rule 119(2), in connection with Rule
119(5).1223 However, the fact that the conditions attached to the summonses in the Kenya
cases did not require state cooperation may explain this line of action.
The protective role of the Pre-Trial Chamber in respect to pre-trial detention is not only
related to the question of whether the conditions of Article 58(1)(b) are still satisfied.
Pursuant to Article 60(4) of the Statute, there is a separate and also proprio motu obligation
on the Pre-Trial Chamber not to detain a person for an unreasonable period prior to trial
when this is due to inexcusable delay by the prosecutor. The provision also says that when
such delay occurs, the Court shall consider releasing the person, with or without conditions.
In its initial practice, the ICC Appeals Chamber emphasized that Article 60(4) is
independent of Article 60(2) in the sense that even if a detainee is appropriately detained
pursuant to Article 60(2) of the Statute, the Pre-Trial Chamber shall consider releasing the
detainee under Article 60(4) if the detainee is detained for an unreasonable period prior to
trial due to inexcusable delay by the prosecutor.1224 It also follows from that Appeals
Chamber’s decision that the reasonableness of the pre-trial detention period has to be
determined on the basis of the circumstances of each case and its complexity, even if all
cases before the ICC are considered complex.1225 The Appeals Chamber did not address the
question of whether only an unreasonable period of detention due to the prosecutor is a
ground for release, because the detention period was not regarded as unreasonable.1226
Yet, the Pre-Trial Chamber in Lubanga made reference to ‘organs of the Court’, and not only
the prosecutor, suggesting that it may be open for the Court to consider the
unreasonableness of the delay attributed to organs other than the prosecutor.1227
iv. SPSC
The law of the SPSC has evolved over time, and the TRCP replaced the earlier applicable
law, which was Indonesian law supplemented by UNTAET regulations. Strongly influenced
by Portuguese law, the TRCP differs considerably in its approach to pre-trial detention in
certain respects from the law of the ad hoc Tribunals and the ICC. This makes the TRCP of
less significance in the context of the study of international criminal procedure.
The following aspects of the SPSC’s law on pre-trial detention are worth noting. First, the
emphasis at the SPSC lies much more on the proprio motu review of pre-trial detention by
judges. Pursuant to Section 20.1 of the Transitional Rules a hearing reviewing the
lawfulness of arrest and detention must be held within 72 hours of arrest. Then, pursuant to
(p. 336) Section 20.9, the judge shall review the detention of a suspect every 30 days.
Secondly, the SPSC is unique in that sets a maximum period for pre-trial detention.
According to Section 20.10 of the Transitional Rules a suspect may only be kept six months
in pre-trial detention; pursuant to Sections 20.11 and 20.12 this period can on compelling
grounds be extended at the request of the prosecutor by three months—in case of a crime
carrying a sentence of imprisonment of more than five years—or as long as is reasonable—
in case of ‘particularly complex cases of crimes carrying imprisonment of ten years or
more’. Thirdly, the Transitional Rules contain a separate Section 21, providing for
‘substitute restrictive measures’, such as house detention or the submission of the suspect
to the care or supervision of a person or an institution. This is seen as an alternative to an
order for detention, which conceptually differs from the ICTY and ICC approaches where
such measures restricting liberty are connected to provisional release or a summons to
appear.
The seemingly more liberal approach in the law of the SPSC on pre-trial detention is
reflected in its case law. Contrary to the ad hoc Tribunals and the ICC, the judges have been
fairly restrictive in respect of pre-trial detention and have ended pre-trial detention on a
number of occasions. Clearly, this being an internationalized system functioning on the
territory of the state of residence of the suspects—with the exception of indicted
Indonesians who could not be arrested anyway—there were no, or far fewer, problems
involving finding a state of release and of re-arrest in case the suspect might not turn up for
trial.1228 Furthermore, a good number of the SPSC accused were charged with ordinary and
not international crimes, which had consequences for the cases’ complexity. On at least one
occasion, pre-trial detention was ended because the case was found not to be of ‘particular
complexity’, as required for continuing detention.1229
We thus encounter decisions where the SPSC opted for substitutive restrictive measures
instead of ordering pre-trial detention.1230 Interestingly, there is also a stricter assessment
of reasonable pre-trial detention periods. In respect of detention for 25 months, it was said
that according to international human rights standards a period of pre-trial detention
exceeding two years could not be justified except in specific circumstances.1231 The
imminence of the trial cannot be regarded as a ground to keep the accused under
detention.1232 Another interesting deviation, for example, from the ICC case law is that the
SPSC judges have occasionally been far more demanding in respect of proving the grounds
for detention. Where it was noted earlier that the ICC Appeals Chamber was easily satisfied
in terms of assessing risks (such as the likelihood of flight), in one case, the SPSC (with
regard to the risk of interfering with witnesses) indicated that the prosecutor carries a
heavy burden of proof and that such a risk must be apprehended based on the conduct of
the defendant.1233
v. ECCC
The internationalized tribunals do not pay special attention to detention on remand in the
custodial state. The most obvious reason for this is that by definition internationalized
courts are very much integrated in the custodial state, and that a similar separation
between their jurisdiction and the custodial state’s jurisdiction is not necessary.
(p. 337) Internal Rules 63–65 of the ECCC regulate detention on remand and provisional
release. Like the law of the SPSC these provisions are a rather diffused blend between
international and domestic rules. The effects for the development of international criminal
procedure should therefore not be overestimated.
Like the law of the SPSC, Internal Rules 63–65 contains relatively detailed provisions
setting out a rather strict regime on pre-trial detention. Internal Rule 63(1) regulates the
procedure to be followed for an order of provisional detention.1234 It places significant
emphasis on an adversarial hearing and the assistance of a lawyer in such a hearing.
Internal Rule 63(3) is the key section. It contains two grounds necessitating detention
which—although previously used in case law by the SCSL—have not found codification in
any of the other international criminal tribunals: protection of the security of the charged
person and the preservation of public order. Like the law of the SPSC, Internal Rule 63(6)
sets a period for the duration of pre-trial detention, based on the type of crime: one year for
international crimes and six months for all other crimes within ECCC jurisdiction. But these
periods may be extended, without any substantive grounds justifying such an extension (see
Internal Rule 63(6) and (7)). Intermediary supervision of pre-trial detention may take place
every four months, when the charged person shall be brought before the co-investigating
judges (Internal Rule 63(8)).
Internal Rule 64 contains the procedure for releasing a charged person, which can be done
in the co-investigating judges’ own motion, or at the request of the co-prosecutors or the
charged person. The substantive ground for ordering release is that the requirements set
out in Internal Rule 63(3) are no longer satisfied (Internal Rule 64(1)). Internal Rule 64(2)
ensures that the detained person can make an application for release at any time; but for a
second application a change of circumstances is required and a waiting period of three
months since final determination of the previous application (Internal Rule 64(3)).
Internal Rule 65 takes on the concept of bail. It is not certain that this provision is based on
the Cambodian law of criminal procedure; rather it borrows from SCSL Rule 65. Although
Internal Rule 65 is entitled ‘bail orders’, the provision is in essence about imposing
conditions on the release order. The posting of a bail bond is mentioned as one such
condition.
In its practice, the ECCC has never released any of the detained persons in custody. But its
case law contains a number of interesting elements. In its first decision dealing with
detention, the ECCC was asked to rule on the legality of detention prior to the
establishment of the court, i.e. detention on the basis of a pre-existing national, Cambodian
detention order.1235 This was not regarded as a matter that affects the ECCC provisional
detention order, but it was established that the detained person’s rights were violated and
that he was entitled to an effective remedy upon completion of his trial. In the case of Khieu
Samphan, the Pre-Trial Chamber, acting on an appeal against a decision from the co-
investigating judges denying provisional release, interpreted the substantive conditions for
pre-trial detention.1236 It did not find there was a risk of interference with witnesses, but it
was satisfied that in case of release, the detained suspect’s security was at risk and that
such release would also disrupt public order.1237 The emotional reactions of and statements
made by victims played an important part in reaching these findings.1238
(p. 338) vi. STL
The RPE of the STL contain the most recent codification of rules of international criminal
procedure. Compared to other internationalized criminal tribunals, the STL has used
international sources of criminal procedure—as developed by previously established
international criminal tribunals—to a far greater extent, and has, where necessary, sought
to improve them. In respect of arrest and pre-trial detention this has given rise to some
interesting variations and new developments.
Like the ad hoc Tribunals, the STL RPE distinguish between arrest and detention as
provisional measures at the request of the prosecutor, and between ‘ordinary’ arrest and
detention. The former is governed by Rules 62 and 63. They offer, compared to similar
provisions at the ICTY and ICTR, more detailed regulation and better protection.
The normal procedure for ensuring the appearance of accused persons at trial is set out in
Rules 78 and 79. They logically start with the least intrusive method of obtaining
appearance, in Rule 78, entitled summonses to appear. At the ICTY this method was not
available at all and at the ICC it is treated almost as an afterthought in Article 58(7) of the
Statute. The ‘interests of justice’ remains the decisive criterion for issuing a summons to
appear (Rule 78(A)), which offers significant flexibility.
Rule 79 contains the procedure for issuance of an arrest warrant. The grounds justifying an
arrest warrant are set out in Rule 79(A). They are substantively the same three grounds as
in Article 58(1)(b) of the Statute. There is thus no room for preservation of public order or
protection of the safety of the accused person as grounds necessitating arrest. Unlike the
situation at the ICC, Rule 79(A) does not provide that the arrest must appear necessary for
a certain purpose. Only the purposes are mentioned, e.g. ensuring the person’s appearance,
but there is no reference to the threshold of necessity. It may well be that in the provision’s
practical application, these purposes are applied as conditions to the issuance of an arrest
warrant.
Rule 79(A) does not directly require an evidentiary threshold, but it becomes clear looking
at the entire rule and its place in the RPE that issuance of the arrest warrant is conditional
upon prior confirmation of the indictment. The latter is only possible if there is sufficient
evidence for a prima facie case.
The issue of continuing detention or release is governed by Rules 101 and 102, carrying the
neutral titles ‘detention on remand’ and ‘release’, respectively. Rule 101 deals with the
procedure governing applications for release and contains provisions on review of detention
and on reasonable duration of detention. The vital section, containing the substantive
grounds in respect of provisional release applications, is set out in Rule 102(A). Clearly
wishing to avoid any debate on ‘detention as a rule’, the drafters have stipulated that
release may only be refused if the judge is satisfied that provisional detention is necessary
for specific purposes. These purposes are the same as the ones in respect of the issuance of
an arrest warrant. Interestingly, despite not being mentioned in so many words in Rule
79(A), the necessity-threshold is clearly articulated in Rule 102. In its final sentence, Rule
102(A) says that release in the host state is only possible with that host state’s consent.
Rule 102(B) allows for the imposition of conditions in case of release. Finally, Rule 102 also
regulates the suspending effect of appeals by the prosecutor against a decision granting
release.
There has not yet been any relevant case law on arrest and pre-trial detention at the STL,
except for a decision of 29 April 2009 regarding the persons being held in Lebanon.1239 This
(p. 339) decision did not concern the detention of persons on the basis of an arrest warrant
of the STL; the persons were held in the context of deferral of competence to the STL,
pursuant to Article 4(2) of the STL Statute. Although there were a few references to the
aforementioned provisions governing arrest and detention, there was no substantive
analysis, because the heart of the matter was the lack of evidence against the detained
persons. The pre-trial judge therefore ordered their release.1240
vii. Synthesis
It follows from the foregoing that the ad hoc Tribunals took as their starting point the
situation of detention as the rule and release as the exception. Due to the serious nature of
the accusations and the serious risks of flight this may have seemed understandable when
setting up these tribunals. However, the law and practice developed, in the sense that
detention could no longer be regarded as the rule. Especially at the ICTY, this has resulted
in a more liberal approach towards detention and several instances of provisional release.
Yet, the law and its application in practice remains in important respects problematic and
inconsistent. As will be examined in the evaluation, there are a number of areas of the law
and practice of the ad hoc Tribunals on detention that come into conflict with human rights
law standards.
It is clear that the drafters of the law of the ICC were keen on not taking for granted the ad
hoc Tribunals’ legacy on pre-trial detention and wished to provide for a number of
improvements. This desire has resulted in stricter rules and conditions for (a) issuing an
arrest warrant, (b) national arrest proceedings, and (c) continuing detention at the seat of
the Court. The law and practice of internationalized criminal tribunals, especially those that
have been recently established, such as the STL, provide for some interesting variations
and improvements on the law and practice on detention of the ad hoc Tribunals and the
ICC. However, this is of limited value for present-day international criminal procedure,
because the law and practice of internationalized criminal tribunals on detention may also
be heavily influenced by relevant domestic law and practice.
B. Evaluation
i. Human rights law
Arrest and the ensuing deprivation and restriction of liberty must be evaluated in the light
of the following human rights. First, there is the overarching right to personal liberty, which
can only be restricted under limited and strict conditions.1241 Second, one must mention the
right not to be detained for an unreasonable period of time.1242 Third, a set of rights need
to be protected once an individual is arrested and subsequently detained: the right to be
promptly informed of the reasons for the arrest,1243 the right to be promptly brought before
a judge or ‘officer’,1244 and the right to challenge the lawfulness of detention.1245 In
addition to these rights, which make up the evaluative framework for the purpose of this
section, it should also be mentioned that the detained individual is in a particularly
vulnerable situation and that it is in the framework of detention that one encounters (p.
340) violation of other human rights as well, such as the right not to be subjected to
degrading or inhuman treatment or punishment.
a. Right to personal liberty
The right to personal liberty means that no one shall be subjected to arbitrary arrest or
detention and no one shall be deprived of his liberty except on such grounds and in
accordance with such procedures as are established by law.1246
Arbitrary arrest or detention is clearly a broad notion and can easily accommodate a
number of forms of unacceptable treatment and conduct. It exceeds by far the scope of this
evaluation to give a full overview and analysis of the notion ‘arbitrary arrest and detention’.
Suffice it to say that (recent) judgments of the ECtHR give a good general overview of the
notion of arbitrary arrest and detention, in the sense of Article 5 of the ECHR.1247
With respect to deprivation of liberty in the framework of criminal procedure, the starting
point is the issuance of an arrest warrant and ensuing detention in accordance with the law.
Arrests and subsequent detention that are not in accordance with the law, such as
abductions, are regarded as arbitrary and in violation of human rights law.1248 The case law
that is most relevant—also for the purposes of the present evaluation—concentrates on the
questions of whether, although in accordance with (national) legal provisions, the arrest and
detention are still to be qualified as arbitrary and whether the duration of detention is
unreasonable.
It follows from the case law of the ECtHR that a person charged with an offence must
always be released pending trial unless the state can show that there are relevant and
sufficient reasons to justify continued detention.1249 In this respect it has been said that:
‘Continued detention … can be justified in a given case only if there are specific indications
of a genuine requirement of public interest which, notwithstanding the presumption of
innocence, outweighs the rule of respect for individual liberty.’1250 The European Court has
identified in its case law the following reasons for continued detention: the risk that the
accused will fail to appear for trial; the risk that the accused would take action to prejudice
the administration of justice or commit further offences or cause public disorder; and the
risk that release may give rise, by reason of the particular gravity of the accusations and
public reaction to them, to a social disturbance.1251 The burden of proof of those
circumstances in all cases rests with the state and at no times can the continuation of
detention be used to anticipate a custodial sentence.1252 Furthermore, in the assessment of
grounds justifying detention, one should take into account whether the national authorities
displayed ‘special diligence’ in the conduct of the proceedings.1253
(p. 341) It seems that whether or not pre-trial detention is in conformity with human rights
law is to be determined on a case-by-case basis, according to each case’s special features.
In this light, it appears difficult to evaluate the law and practice of international criminal
tribunals because of the significant differences in comparison to national prosecutions.
However, it can safely be concluded that a presumption in favour of detention is, in any
event, a violation of human rights law. One cannot think of any justification for the
‘detention as the rule and release as the exception’ approach that has dominated the law
and practice of the ICTY and ICTR for some time. A presumption of detention has been
ruled out in the law of the ICC, but its case law may show a different picture. In practice,
one may even consider the introduction of certain conditions to provisional release as
amounting to a de facto presumption of detention. One can mention in this respect the
requirement introduced in the Bemba case, according to which provisional release can only
be ordered if there is a state prepared to accept the conditionally released person.1254
The presumption of detention at the ICTY and ICTR, also after the amendment of Rule 65
removing the reference to ‘exceptional circumstances’, is strongly confirmed by the
absence of any grounds that have to be established necessitating arrest and detention.
These grounds have been described and applied in the case law of the ECtHR and include,
among others, the risk of flight. The law and practice of the ICTY, ICTR, and SCSL does not
require the presence of any such ground as a condition to the issuance of an arrest warrant.
Thus, a system of automatic pre-trial detention has arguably been put in place. Such a
system can under no circumstances be consistent with human rights law; especially as with
the lapse of time, there is a requirement for the presence of grounds justifying detention
which amount to more than just reasonable suspicion. It is puzzling that such grounds have
never been introduced in the law and practice of the ICTY and ICTR, especially if one bears
in mind that they would in practice probably not be a significant obstacle to ongoing
detention.1255
The ICC and the family of internationalized criminal tribunals have remedied this serious
omission and all provide for grounds necessitating arrest and detention. From a human
rights perspective, the ICC may nonetheless be considered cautious, in the sense that the
permissible ground of ‘social disturbance’ is not mentioned as a ground justifying arrest
and detention, whereas it is a permissible ground under human rights law. One has the
impression that the ICC maintains a fairly low threshold with regard to being satisfied of
any of the grounds necessitating arrest. In this respect, one would like to see more efforts
and better reasoning to establish certain risks, but it must also be acknowledged that the
ICC’s practice on this point is very likely to satisfy human rights law. It is true that
according to ECtHR case law, ‘arguments for and against release must not be “general and
abstract”’.1256 Having said that and looking at national situations of pre-trial detention, it
appears that there are generally sufficient concrete elements in international criminal
proceedings for being satisfied that there is, for example, a risk of flight, in conformity with
human rights law.
Regarding the matter of judicial review of arrests, it must be noted that the ICTY, ICTR,
SCSL, and STL provide for the possibility of arrest in urgent situations at the request of the
prosecutor. The ICC only allows for arrest on the basis of a judicial warrant. As such, the (p.
342) ‘Prosecutor’s arrest’ is unknown to the ICC. While an arrest warrant issued by a judge
offers more safeguards for the arrested person, this is not required at all by human rights
law. Arrests by prosecutors, policemen, and even citizen’s arrests are fully permitted and
occur very frequently in national criminal justice systems, provided that the arrest is in
accordance with a procedure prescribed by law and provided that the arrested person is
brought promptly before a judge. When these safeguards accompanying ‘provisional arrest’
are not in place, individual rights are likely to be violated. The ICTY/ICTR law on provisional
arrest is, in this respect, problematic. Rule 40 does not fully protect the rights of individuals
provisionally arrested. The ICTR Barayagwiza case demonstrates that without such
protection provisionally arrested individuals risk being detained too long, without sufficient
judicial supervision.1257 The absence of access to a judge and absence of a maximum period
of provisional arrest/detention is inconsistent with international human rights law.
In spite of these critical remarks, there are also areas of the law and practice of
international criminal tribunals that are in conformity with human rights law. It appears
that the evidentiary threshold applied by international criminal tribunals for ordering an
individual’s arrest and detention more than meets the standard of reasonable suspicion,
which is a condition for any arrest in criminal procedure.1258
b. Right not to be detained for an unreasonable period of time
Even if there is a genuine public interest justifying detention, the national judicial
authorities must at all times ensure that, in a given case, the pre-trial detention of an
accused person does not exceed a reasonable period of time.1259 The right to be detained
for only a reasonable period finds protection in Article 5(3) of the ECHR, in the sense that
trial must follow within a reasonable period of time, or the detained person must be
released. Article 9(3) of the ICCPR embodies an identical requirement, setting an ultimatum
of starting the trial within a reasonable time or releasing the accused. If the trial is held
within a reasonable period of time, then the detained person is entitled to have his trial
finished within a reasonable period of time, pursuant to Article 6 of the ECHR and Article
14 of the ICCPR. Because of the connection to trial and the related right to be tried without
undue delay there may be a tendency to overlook the autonomous right not to be detained
for an unreasonably long time.
The law and practice of the ad hoc Tribunals appears inconsistent with this aspect of the
right to liberty. To start with, there is in the law of the ad hoc Tribunals no formal
mechanism reviewing whether duration of detention is still reasonable. Moreover, especially
at the ICTR, one continues to see extensive periods of pre-trial detention, including periods
of six to seven years before commencement of trial.1260
In the case law of the ad hoc Tribunals, the length of pre-trial detention is sometimes
addressed in the context of applications for provisional release. Remarkably, and in contrast
with the obligations contained in human rights law, the determination of a period of pre-
trial detention as unreasonable does not per se constitute a cause for release.1261 Also, in
the case law of the ICTY, excessive length of pre-trial detention does not (p. 343)
necessarily result in release.1262 However, it must be admitted that the case law in the
context of the ECtHR allows for a wide margin of appreciation in assessing the
reasonableness of the length of detention, taking into account the factors of each individual
case. In Jentzsch v. Germany, a case dealing with war crimes and crimes against humanity
committed during World War II, the ECommHR accepted a period of pre-trial detention of
over six years, although regrettably long, as not unreasonable.1263 Factors such as the
complexity of the case and the number of victims and witnesses involved may thus justify
very long periods of pre-trial detention, still qualifying as ‘not unreasonable’. In this light,
the periods of detention at the ICTY and ICTR could be in keeping with human rights law,
provided that the judges had in fact qualified them as ‘not unreasonable’, quod non.
Improving on the legal framework of the ad hoc Tribunals, Article 60(4) of the ICC Statute
obliges the Pre-Trial Chamber to ensure that a person is not detained for an unreasonable
period prior to trial. The ICC Appeals Chamber has emphasized that the mechanism of
protection set out in Article 60(4) is independent of the review mechanisms in Article 60(2)
and (3).1264 Although it seems that Article 60(4) brings the law of the ICC more in line with
what is required by human rights law, it contains two problematic elements. First, the duty
to prevent detention for an unreasonable period of time is, strangely, restricted to a
situation ‘due to inexcusable delay by the Prosecutor’. This situation has been interpreted in
case law as a ‘failure to take timely steps to move the judicial process forward, as the ends
of justice may demand’.1265 Although a relevant factor, restriction to this cause is not
consistent with human rights law, where the period of detention may be regarded as
unreasonable irrespective of the cause. Secondly, Article 60(4) does not oblige the Chamber
to order release if it establishes an unreasonable period of detention, but merely obliges it
to consider release. Under human rights law there is an unconditional entitlement to
release in case there is no trial within a reasonable period of time.
c. Right to be promptly informed of the reasons for arrest
The right to be promptly informed of the reasons for arrest finds protection in Article 5(2)
of the ECHR and Article 9(2) of the ICCPR. It serves a twofold purpose, namely first that
any person should know why he is being deprived of his liberty,1266 and second that it
allows the person detained to have the lawfulness of detention speedily decided.
It seems that this right finds adequate protection in the law of international criminal
tribunals, with the possible exception of provisional arrest at the request of the ICTY and
ICTR prosecutor pursuant to Rule 40 of the ICTY and ICTR RPEs. However, in practice this
right has not always been secured. For example, in Semanza, the ICTR Appeals Chamber
ruled that the right was violated because there was a gap of 18 days between the suspect’s
arrest and the moment he was informed of the charges.1267 Remedies were ordered in
response to this breach.
At the ICC, this right does not find specific protection but it can be said to fall under the
broader umbrella of Article 59(2) of the Statute, obliging the judicial authority in the
custodial state to determine whether the suspect’s rights have been respected.
(p. 344) d. Right to be promptly brought before a judge or ‘officer’
This right is recognized by international human rights instruments, notably Article 9(3) of
the ICCPR, Article 5(3) of the ECHR, and Article 7(5) of the ACHR. The obvious purpose of
this right is to protect against ‘arbitrary behavior, incommunicado detention and ill-
treatment’ by means of ‘expedited judicial scrutiny’.1268 The period of time covered by the
term ‘promptly’ seems to be a maximum of four days;1269 in exceptional circumstances,
such as arrest on the high seas, this period may be longer.1270
Protection of this right may be problematic in the law and practice of the ad hoc Tribunals,
where the execution of arrest warrants and initial phase of detention is put entirely in the
hands of others, notably states. Common Rule 62 of the ICTY, ICTR, and SCSL RPEs secures
a swift initial appearance once transferred to the Tribunal, but there is no similar protection
in respect of being promptly brought before a national judge. Yet, in case law the right to be
brought promptly before a national judge has been confirmed and has given rise to
remedies, especially in case of provisional arrest at the request of the prosecutor.1271
Improving on the legal framework of the ad hoc Tribunals, Article 59(2) of the ICC Statute
attributes directly to the arrested person the right to be brought promptly before the
(national) judicial authority.
e. Right to challenge the lawfulness of detention
This right finds expression through the common law writ of habeas corpus, meaning that a
detained individual must have recourse to an independent judicial officer for review of the
detaining authority’s act. In some countries in Latin America, the writ of amparo is used to
challenge detention. It finds protection in, among others, Article 5(4) of the ECHR and
Article 9(4) of the ICCPR. The right to have the legality of detention reviewed should be
distinguished from the right to apply for provisional release. It is an auxiliary right that
serves the purpose of ensuring the substantive right of not being subjected to arbitrary
arrest and detention.
This fundamental dimension of the right to liberty is not an express part of the Statutes and
RPE of the ad hoc Tribunals and the SCSL. Yet, the importance of the right appears to have
been recognized in case law, where the Appeals Chamber has expressed concern that writs
of habeas corpus were not heard, or not heard in a timely fashion, by Trial Chambers.1272
Just like the law of the ad hoc Tribunals and the SCSL, the law of the ICC does not contain
the right to challenge the lawfulness of detention. It is in the case law of the ICC that this
right has been confirmed.1273 It has also been ruled in ICC case law that Article 60(2),
which allows the detained person to apply for interim release, provides him also with an
opportunity to challenge the lawfulness of his arrest and/or detention.1274
When looking at domestic criminal justice systems, it must be noted at the outset that their
law and practice on arrest and detention have, to a large degree, come to be shaped by (p.
345) international human rights law. There is thus certainly overlap between the previous
and the present evaluative parameter.
That said, there are among states diverging laws and practices in respect of arrest and
detention. Making a very rough generalization, it can be said that common law systems are
more hostile towards pre-trial detention than civil law systems. This implies that in common
law systems it appears generally more difficult to obtain an arrest warrant and to have the
detention prior to trial continued. This is exemplified by release on bail, a mechanism that is
not as frequently used in inquisitorial systems. An explanation for the divergence among the
two major legal families can first be found in the greater importance which is historically
attached in common law systems to protecting civil rights, including the right to liberty. In
addition, in an adversarial procedure, in which the suspect is a party to the proceedings
rather than an object, his liberty with a view to preparing his case is important. The ideal of
equality among parties is seriously threatened when one party can ensure the other party’s
detention. As a result, it appears that provisional release is even more important in an
adversarial system, such as that of the ICTY and—to a lesser degree—the ICC.
The diverging approaches among states with respect to arrest and detention can only, in
very small part, be explained by national applicable law. Generally speaking, all states
adhering to the rule of law and due process norms in their laws consider detention as an
exceptional situation that can only be ordered on the basis of sufficient evidence and on
limited grounds accepted by human rights law. But this says little of the national legal
culture in respect of arrest and pre-trial detention. Comparative research among European
states reveals significant differences. In the Netherlands, for example, the percentage of
individuals detained prior to and pending trials is 46 per cent of the total number of
detainees, whereas in the UK the proportion is only 16.8 per cent.1275 Apparently, in the
Netherlands there is a legal culture and tradition in favour of detention, much more so than
in the UK. Yet, both systems are by and large consistent with international human rights
law. This demonstrates that apparent adherence to human rights law still makes it possible
in practice to detain a significant number of individuals accused of (serious) crime.
Because of the significant differences and variations among states in arrest and detention,
the use of comparative methods in evaluating the law and practice in this area of
international criminal tribunals is quite limited. However, two aspects of national law and
practice on arrest and detention need to be briefly explored with a view to evaluating the
law and practice of international criminal tribunals.
a. Arrests without a warrant
It has already been mentioned that the ICC only provides for arrests with a judicial warrant.
National justice systems, however, tend to allow a prosecutor or police officer to arrest and
detain a person suspected of having committed an offence for a short period and without a
warrant.1276 The conditions under which police officers or prosecutors may arrest and
detain individuals for a short period may vary among states, but it is clear that the full and
unconditional exclusion of arrests without warrants at the ICC is not to be found in (p. 346)
national justice systems. The law of the ICC is thus far too strict. It can be argued that the
ICC does not have its own police force and that there is therefore no reason to give its
prosecutor a power normally available to police officers who are in daily and direct
interaction with crime and suspects. Yet, the ICC prosecutor may also be confronted with
situations and scenarios in which there is not enough time to wait for a judicial warrant. In
addition to human rights law, a comparative overview of national systems does not offer any
basis for allowing arrests only in cases of a prior judicial warrant.
b. Bail and other alternatives to detention
At the national level, one encounters a number of alternatives to detention. One can broadly
distinguish between conditions attached to release and forms of deprivation of liberty that
fall short of detention, such as house arrest.
Bail seems to be an important alternative to pre-trial detention. It is, in one form or another,
available in many systems. For example, it operates in all EU countries, with the exception
of Hungary, Italy, and Sweden,1277 and also in many countries outside Europe, such as
Canada and the US. However, practice may vary enormously among states. In the
Netherlands, for example, bail is never used;1278 one of the arguments against it is that it is
inconsistent with the principle of equality for the law as poor suspects would have more
difficulty in securing bail.1279 However, in the US, bail plays a vital role in detention
matters. Under the Bail Reform Act of 1966, a non-capital defendant is to be released,
pending trial, on his personal recognizance or on personal bond, unless the judicial officer
determines that such incentives will not adequately ensure his appearance at trial. The
differences in the use of bail among national systems are too diverse to be a helpful tool in
evaluating the law and practice of international criminal tribunals. As in many national
systems, bail is available in international criminal justice, as already examined in section
A.1280 However, its practical application is expected to raise more difficulties than in a
national setting and it is not likely to be used soon.
Besides bail, one observes in various national systems the development and use of other
alternatives to pre-trial detention. Within the EU, for example, this includes the following:
undertakings to appear before a judicial authority, undertakings not to interfere with the
course of justice, undertakings not to engage in particular conduct such as practicing a
particular profession, submission to electronic monitoring, committing to reside at a
specific address, and respecting restrictions of movement.1281 Among these alternatives
there are some interesting developments based on new technology, such as electronic
monitoring making use of GPS systems. They could also be of use for international criminal
tribunals and Rule 119(1) of the ICC RPE already includes a number of these alternatives as
possible conditions restricting liberty. However, national law and practice in respect of
these alternatives to detention is, just as in the case of bail, too diverse to properly evaluate
the law and practice of international criminal tribunals. Nevertheless, any initiative that
reduces the instances and length of pre-trial detention, and that has worked well in national
justice systems, is worth considering in international criminal justice as well.
(p. 347) iii. Goals of international criminal justice
The overarching goal of international criminal justice is to end impunity for international
crimes. In the light of this goal, it seems that ongoing detention best ensures that
individuals appear for trial and that justice can be done. However, this would be a very
simplistic and one-dimensional way to approach arrest and detention. International criminal
tribunals also serve as a role model of criminal procedure and must fully comply with
human rights law. In addition, the perception of international criminal tribunals as
institutions where detention is as good as automatic may not contribute to fostering peace
and reconciliation in the societies concerned. It is also true that the fact that an individual
accused of genocide or another international crime is not detained and moves freely, may
also disturb peace and stability in society, especially in connection with victims and their
families. It can also embody risks for processes of peace and reconciliation. On balance, the
degree to which the law of international criminal tribunals on arrest and detention, which
by and large is in favour of pre-trial detention, has contributed to the goals of international
criminal justice is thus very much a matter of perspective and also speculation. It is not
helpful in evaluating the law and practice of international criminal tribunals to make use of
the goals and objectives of international criminal justice.
iv. Coherence, expedience, and practical considerations
It is unclear whether a more liberal approach towards detention (i.e. one in favour of
liberty) would jeopardize expeditious proceedings and thus efficiency. The experience at the
ICTY with released persons and at the ICC with accused who are not detained (the Banda
and Jerbo case, and the two Kenya cases) shows that proceedings may function effectively
in certain circumstances, in the sense that summoned persons seem to comply with orders
and conditions and show up for hearings. Costs are another important consideration at the
national level. However, the issue of costs may not yet be that important in international
criminal justice, as the prison population is quite small and provisional release may also
generate costs. This will especially be the case if the detained person is released in a state
other than the state of arrest—e.g. the host state—which has to pay for accommodation,
security, and other matters.
v. Synthesis
The evaluation of the law and practice of international criminal tribunals on arrests prompts
the following conclusions.
The evidentiary threshold, as set and applied by all international criminal tribunals, seems
consistent with international human rights law and also with the law and practice of
national justice systems, although critical remarks have been made concerning the
sufficiency of evidence accompanying applications for confirmation of the indictment at the
ICTY/ICTR. There may be occasions when a state having to execute an arrest warrant does
not consider the evidence accompanying the request sufficient. However, this may not be
necessarily a human rights issue, but a matter of domestic law, which should be settled on
the basis of the law on cooperation.
The law and practice on the evidentiary basis for an arrest warrant also appears to be
consistent with domestic law and practice. In addition, the objectives of international
criminal procedure, fairness, and efficiency, are well observed by the law and practice on
the sufficiency of the evidence.
The foregoing considerations also apply to the judicial role and review concerning the
issuance of an arrest warrant.
(p. 348) The evaluation is more problematic in respect of other aspects of the law and
practice on arrest. One of the major concerns from a human rights perspective is that the
law and practice of the ICTY-based institutions does not require determination of any
ground necessitating arrest prior to the issuance of an arrest warrant. The law and practice
of the ICTY-based institutions may also be problematic in that no alternative for an arrest
warrant is provided for, although this is not explicitly ruled out. It is a general principle of
domestic criminal procedure that coercive measures are only used if less intrusive
alternative measures are unlikely to produce the same result (principle of subsidiarity).
By and large, the ICC law repairs these problems and is consistent with human rights law. It
may in certain respects even be considered over-protective in the context of human rights
law. The ground of ‘social disturbance’, which can justify arrest and detention in certain
national systems and which is recognized in human rights law, is not available in the law of
the ICC (Article 58(1)). As a result, the grounds justifying arrest and detention—which did
not have to be established at all in the framework of the ICTY and ICTR—are more limited
in the law of the ICC than in human rights law. Yet, the practice of the ICC seems still
inclined in favour of detention, which is perhaps reflected in the fact that no person
detained on remand has been provisionally released to date. But this is not necessarily
inconsistent with human rights law and may also be justified by the facts of each individual
case. In national systems, one encounters significant differences in approaches towards
pre-trial detention. states with a high number of detainees on remand, such as the
Netherlands, may still act in accordance with human rights law, as long as they have in
place and properly follow procedures and provide for adequately reasoned detention
decisions.
C. General Rules and Principles of International Criminal Procedure
i. Principles
A warrant for an individual’s arrest must be based on sufficient evidence—a reasonable
basis to conclude that an individual may have committed a relevant crime—and must be
issued by a judge.
[Art. 19 ICTY Statute, Art. 18 ICTR Statute, Art. 58(1)(a) ICC Statute, case law
SCSL, Section 19A.1 TRCP, Art. 18 STL Statute]
Every detained person has the right to challenge his or her detention and to apply for
interim release.
[Rule 65 and related case law ICTY, ICTR, and SCSL RPE, Art. 60(2) ICC Statute,
Section 6.k TRCP and case law, Rule 64 ECCC IR, Rule 101 STL RPE]
ii. General rules

The risk that a person at liberty will not appear for trial and the risk that a person at liberty
will interfere with ongoing investigations (including the risk of interference with victims,
witnesses, or other persons) are relevant factors in restriction and deprivation of liberty,
either as grounds which have to be satisfied to issue an arrest warrant or as conditions for
ordering interim release.
[Rule 65(B) ICTY, ICTR, and SCSL RPE, Art. 58(1)(b) and Art. 60(2) ICC Statute,
Section 20.8 SPSC UNTAET Regulation 2001/25, Rule 63(3) ECCC IR, Rule 79 STL
RPE]
(p. 349) D. Recommendations

As a result of the significant divergence among international criminal tribunals’ approaches
to arrest and detention, recommendations have to be made in order to fill certain gaps and
sort out inconsistencies. In respect of each recommendation a short explanation will be
provided.
a. General
In addition to the rights of the accused, Statutes of international criminal tribunals shall
emphasize each individual’s right to liberty and not to be subjected to arbitrary arrest or
detention. It is recommended that in addition to a reference to the fair trial rights of the
accused, Statutes should also contain an express affirmation of the right to liberty. This
would serve to demonstrate the tribunals’ strong adherence to this right and also function
as a safety net in case there are gaps in the tribunals’ positive law.
b. Issuance of arrest warrant
Before issuing an arrest warrant, a judge must be satisfied that the arrest is necessary for
at least one of the following purposes: (a) to ensure the person’s appearance at trial, (b) to
ensure that the person does not obstruct or endanger the investigation or the court
proceedings and, (c) where applicable, to prevent the person from continuing with the
commission of international crimes. This recommendation follows Article 58(1)(b) of the
ICC Statute. Within the working group and at the closing conference in October there was
debate as to whether the ground ‘social disturbance’ should be available to international
criminal tribunals as a possible additional justification for arrest and detention. Ultimately,
and contrary to an earlier version of this report, it was decided this should not be the case.
The ground ‘social disturbance’ is quite vague and—although permissible in principle—is
still subject to criticism from a human rights perspective. Moreover, especially in the case
of international crimes, there is a risk that it might be used as an almost automatic ground
justifying detention, thereby de facto reinstating the presumption of detention.
Before issuing an arrest warrant, a judge must be satisfied that a summons to appear, with
or without conditions restricting liberty other than detention, does not suffice to meet one
of the following purposes: (a) to ensure the person’s appearance at trial, (b) to ensure that
the person does not obstruct or endanger the investigation or the court proceedings and,
(c) where applicable, to prevent the person from continuing with the commission of
international crimes. It is a general principle of criminal procedure that coercive measures
should only be used when other less invasive alternatives are not available; these are the
rules of subsidiarity and proportionality. Although the ICC Statute allows for the summons
to appear, in Article 58(7), it should be considered as a rule and proprio motu in each case.
In a case of urgency, the prosecutor of an international criminal tribunal may request any
state to arrest a suspect provisionally, when he/she has in his possession evidence
indicating that the person concerned may have committed a crime within the jurisdiction of
the Tribunal/Court. The suspect shall be released if: (a) the Chamber so rules, or (b) the
prosecutor fails to issue an indictment or an application for an arrest warrant within 20
days of the date on which the request was received by the requested state. The law of the
ad hoc Tribunals provides for arrest and detention at the request of the prosecutor in
situations of urgency and this recommendation is modelled on that law. It is recommended
that in situations of urgency, an international prosecutor should be in a position to request
the provisional arrest of a suspect. This power is available in every jurisdiction where
urgent (p. 350) situations demand for immediate action. There does not seen to be any
compelling reason why the ICC prosecutor should not have this power, especially when the
power is surrounded by sufficient safeguards. It is in the interests of justice when there is a
‘unique arrest’ opportunity to empower the prosecutor to request provisional arrest.
c. Execution of arrest warrant
A person who is the subject of an arrest warrant shall be arrested in accordance with a
procedure established by law, in which his rights under national and international law shall
be respected. It was felt that in respect of the execution of an arrest warrant, the arrested
person lacks adequate protection from the law of international criminal tribunals. It is
proposed that a person who is the subject of an arrest warrant is entitled to basic minimum
rights as to how he/she is arrested. From a human rights perspective, this means that the
arrest must take place in accordance with a procedure established by law, and that the
individual’s rights under relevant law must be respected. This recommendation is just a
shorter way of expressing the requirements of Article 59 of the ICC Statute.
d. Detention on remand
A judge shall periodically review the detention of the accused at the seat of the Tribunal/
Court. He shall proprio motu, or at the request of either party, satisfy himself that there
continues to be a reasonable basis to believe that the detained person has committed a
crime within the jurisdiction of the Tribunal/Court, and that detention continues to be
necessary either to ensure the person’s appearance at trial, to ensure that the person does
not obstruct or endanger the investigation or the court proceedings, or to prevent the
person from continuing with the commission of international crimes. The initiative of
challenging detention should not only lie with the accused. It is also in the interests of
justice and serves the economic use of resources that judges regularly inquire proprio motu
whether the detention is still justified and necessary. This system functions in many national
criminal jurisdictions this way and also best corresponds to protecting the right to liberty.
A person arrested and detained pursuant to a warrant from an international criminal
tribunal shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned on guarantees to appear for trial. This provision reproduces
almost verbatim elements of Article 5(3) of the ECHR and Article 9(3) of the ICCPR. The
main and direct purpose behind this recommendation is, of course, to respect each
individual’s right not to be detained for an unreasonable period of time. it is also
recommended, in the light of case law from international criminal tribunals, to set out
clearly the consequences of failure to ensure trial within a reasonable time: release. This, it
is hoped, will assist in reducing the lengthy periods of pre-trial detention in international
criminal justice.
There was debate within the working group and at the closing conference as to whether
there should be fixed terms of pre-trial detention, which was part of an earlier version of
this working group’s report. The argument in favour was that fixed terms are more helpful
in securing the right to detention for a reasonable period of time and there is the ulterior
motive, namely that fixed terms of detention drive the criminal process forward. The other
opinion in the working group was that there should be room in international criminal justice
for more flexibility. There may be complex factors and reasons embedded in the Court’s
legal framework militating against the imposition of fixed terms and favouring a set of
overarching principles, such as those found in Article 60(3)–(4) of the ICC Statute. The
latter opinion prevailed.
(p. 351) 5. Remedies

Upon violation of procedural standards governing the international criminal process,
international criminal tribunals have the power to provide a remedy. For the purposes of
this chapter, remedies are defined as the consequences attached by a court, i.e. judicial
responses, to violations of procedural standards (procedural violations) as established in the
course of that court’s proceedings. The purpose of such responses may be to repair the
prejudice caused by the procedural violation, to deter future violations, or to punish the
violating party.1282 It is important to note that the term ‘remedy’ has different meanings
depending on the context in which it is used. To be clear, this chapter is not concerned with
‘procedural’ remedies, i.e. the processes by which allegations of human rights violations are
heard and decided. Insofar as the procedural violation in question entails a human rights
violation, it is concerned with ‘substantive’ remedies, i.e. the outcome of such proceedings
or the relief afforded after such a violation has been established.1283 In principle, however,
this chapter is not limited to the violation of human rights as standards governing the
international criminal process but addresses procedural violations more generally.
The list of procedural violations that could potentially occur in international criminal
proceedings is extensive and they are probably impossible to catalogue definitively here.
The same applies to the judicial responses to such violations. Procedural violations can be
‘committed’ by the judiciary, as well as by the parties and national authorities during the
investigative phase. This chapter is concerned with prosecutorial impropriety or
misconduct, including investigative impropriety or misconduct for which the prosecutor is
responsible. In particular, it is concerned with the violation of standards governing the
unlawful restriction or deprivation of liberty in the investigative and pre-trial phase, i.e. the
unlawful arrest, surrender, and pre-trial detention of suspects or accused.1284 In
international criminal proceedings, the remedies that may in principle be imposed for such
procedural violations include a stay of proceedings, nullity of investigative actions,1285
sentence reduction, financial compensation, and declaratory relief. Whether a remedy may
be imposed depends, among other things, on the nature and extent of the procedural
violation(s). As to the law and practice under examination in this chapter, the focus is on the
ad hoc Tribunals, i.e. the ICTY and ICTR, and the ICC. Other relevant courts or tribunals
are discussed only insofar as they contribute to (i.e. not merely confirm), clarify, or deviate
from the law and practice of the ad hoc Tribunals and/or the ICC. Before going on to discuss
the aforementioned remedies, however, the ‘general framework’ for attaching
consequences to procedural violations at the different courts and tribunals will be set out.
(p. 352) 5.1 General Framework

A. Law and Practice in International Criminal Procedure
i. IMT and IMTFE
It is a widely acknowledged that although the IMT and IMTFE Charters and/or Rules
include some safeguards for defendants, they are silent on the rights of persons in the
investigative phase.1286 The IMT and IMFTE Charters, Rules of Procedure and case law are,
moreover, silent on the availability of remedies for procedural violations, including the
violation of such safeguards. This is hardly surprising given that, at the time of the post-war
tribunals, no international instruments existed setting forth the rights of suspects or
accused or the more general right to a remedy.1287 Nor do the Charters, Rules of
Procedure, or case law provide for any specific remedies, such as the exclusion of evidence.
As such, it is impossible to speak of a general framework for imposing remedies (or of any
specific remedies, for that matter) in the context of the post-war tribunals.
The authority of the ad hoc Tribunals to impose remedies for procedural violations flows
from, inter alia, the inherent powers of such tribunals to supervise the proceedings.1288
According to the Appeals Chamber in the ICTR case of Barayagwiza, it is ‘generally
recognised that courts have supervisory powers that may be utilized in the interests of
justice, regardless of a specific violation’.1289 Where a written rule of procedure or evidence
has been violated, the authority to impose a remedy flows from Rule 5 of the ICTY and ICTR
RPEs, which gives broad powers to trial chambers to grant remedies ‘on the ground of non-
compliance with the [RPE] or Regulations [of the ad hoc Tribunals]’. In other words, as far
as the authority of the ad hoc Tribunals to impose remedies for procedural violations is
concerned, a distinction may be drawn between violations resulting from non-compliance
with written rules and violations of other applicable law. The SCSL RPE also provide for
remedies upon non-compliance with written rules of procedure.1290 The authority of the
ICTY, ICTR, and SCSL to impose remedies for procedural violations may further be inferred
from more specific provisions, such as Rule 89(D) of the ICTY RPE, which provides for the
exclusion of evidence on grounds of fairness, and Rule 95 of the ICTY, ICTR, and SCSL
RPEs, which provides for the exclusion of certain evidence on grounds of unreliability and
integrity. Rule 68bis of the ICTY RPE provides that: ‘The pre-trial Judge or the Trial
Chamber may decide proprio motu, or at the request of either party, on sanctions to be
imposed on a party which fails to perform its disclosure obligations pursuant to the
Rules.’1291
It should be noted that, in principle, the availability of remedies is not limited to human
rights violations. Rule 5 of the ICTY and ICTR RPEs (as reproduced earlier) applies to non-
compliance with the RPE or Regulations, which may or may not entail the violation of (p.
353) human rights. Nevertheless, in international criminal proceedings, the issue of
remedies is closely connected to human rights.
In confirming the supervisory powers of the ad hoc Tribunals to impose remedies, the
Appeals Chamber identified three functions of exercising such powers: ‘to provide a remedy
for the violation of the accused’s rights; to deter future misconduct; and to enhance the
integrity of the judicial process’.1292 In this regard, it is important to distinguish between
the primary rationale or purpose of a particular remedy and its function(s) or effect(s).1293
Regarding the permanent stay of proceedings, whilst it may fulfil all of the aforementioned
functions, its primary purpose appears to be to preserve the integrity of the court, or to
protect the accused from wrongful conviction.1294 Even if repair of the individual suspect’s
or accused’s rights is not the primary purpose of imposing a permanent stay, the ‘integrity’
rationale clearly requires the rights of suspects or accused to be taken seriously, and may
have the effect of providing an effective remedy for the violation of such rights.1295 In this
regard, it may be assumed that serious violations of the rights of the suspect or accused by
definition undermine the integrity of the proceedings. By contrast, repair of the individual
suspect’s or accused’s rights does appear to be the primary purpose of financial
compensation and sentence reduction.1296
iii. ICC
The authority of the ICC judges and chambers to impose remedies flows, inter alia, from
specific provisions in the ICC Statute, which provide for the exclusion of evidence,
(financial) compensation for unlawful arrest or detention, and judicial disciplinary
measures. Regarding stays of proceedings, it flows from Article 21(3) of the ICC Statute,
which requires the ICC to ‘exercise … jurisdiction … in accordance with internationally
recognized human rights norms’.1297 As to the purposes (and functions) of attaching
consequences to procedural violations, although the ICC has yet to address this issue
comprehensively in its case law, such purposes are apparent from provisions such as Article
69(4) and (7), which allow for the exclusion of evidence on grounds of fairness and the
‘integrity of the proceedings’, respectively. Also, Article 85(1) of the ICC Statute, which is
identical to Article 9(5) of the ICCPR, provides the victim of unlawful arrest or detention
with a remedy for the violation of his or her rights.1298 As will be seen later, a permanent
stay of proceedings may in principle be imposed for, inter alia, violations occurring in the
process of bringing a person within the jurisdiction of the ICC.1299 The (p. 354) primary
rationale for imposing a stay in such circumstances appears to be reparation of violations of
the rights of the suspect or accused.1300
iv. SPSC
Pursuant to Section 55.1 of the TRCP:
Upon any judicial consideration of the validity of an earlier act of any official or
authority, an earlier act found to be in violation of a rule of criminal procedure shall
be deemed a nullity if the law or UNTAET regulations so provide. If the law or
UNTAET regulations do not provide that the violation results in the nullity of the
act, the act shall be deemed irregular.
Section 55.2 lists a number of nullities ‘which cannot be remedied without new
proceedings’. Section 55.3 provides that the ‘irregularities’ referred to in the first
paragraph ‘may be remedied, provided there was a timely objection, or if the reviewing
court finds that there were justifiable grounds for failure to object’, although it is otherwise
silent as to how such irregularity may be remedied. In any case, the SPSC has held that the
violation of the fundamental rights of the accused constitutes an irregularity within the
meaning of Section 55.3.1301 As such, Section 55 appears to confer on the SPSC broad
powers to provide remedies other than nullity for procedural violations. The authority of the
SPSC to remedy such violations may also be inferred from Section 34.2 of the TRCP, which
prescribes the exclusion of certain evidence, and from Section 52.2, which prescribes
financial compensation for unlawful arrest and detention.
v. ECCC
Rule 48 of the Internal Rules of the ECCC provides that: ‘Investigative or judicial action
may be annulled for procedural defect only where the defect infringes the rights of the
party making the application.’1302 Referring to the right to an effective remedy prescribed
by Article 2(3)(a) of the ICCPR, the ECCC Pre-Trial Chamber has found that ‘a proven
violation of a right of [a charged person], recognized in the ICCPR, would qualify as a
procedural defect’.1303 Although the scope of Rule 48 may appear broad, the ‘relief’
prescribed therein (‘annulment of investigative or judicial action’) limits it. Such relief may
result in an investigative or judicial order being annulled or ‘in material being expunged
from the case file’,1304 but does not cover permanent stays of proceedings.1305 As such,
Rule 48 does not confer on chambers a general power to grant remedies for due process
violations. In the case law, the co-investigating judges and (pre-)trial chambers of the ECCC
have confirmed the availability of remedies for due process violations.1306
vi. STL
Pursuant to Rule 4 of the STL RPE, judges and chambers may impose remedies for non-
compliance with the STL RPE, if such non-compliance ‘was serious and … caused material
(p. 355) prejudice’. In this way, the STL RPE confer on judges and chambers broad powers
to address procedural violations as a result of non-compliance with written rules of
procedure. The authority of the STL to remedy procedural violations is also apparent from
such provisions as Rule 162 of the STL RPE, which prescribes the exclusion of certain
evidence, and Rule 170(D), which provides for compensation for unlawful arrest and
detention.
vii. Synthesis
Both the ad hoc Tribunals and the ICC have the authority to provide remedies for
procedural violations. At the ad hoc Tribunals such authority flows from the inherent power
to supervise the proceedings. In addition, the RPEs of the ad hoc Tribunals confer on judges
a broad discretion to impose remedies for violations of written rules of procedure. No such
general provision exists in the ICC Statute or ICC RPE. Finally, both the ad hoc Tribunals
and ICC provide for specific remedies in their governing documents, from which such
authority may (additionally) be inferred.
Turning to the other relevant criminal tribunals, the authority to impose remedies may be
inferred from express provisions in the governing documents. Both the SPSC and STL rules
of procedure contain general provisions conferring on judges and chambers broad powers
to grant remedies for procedural violations. In addition, the SPSC, ECCC, and STL rules of
procedure all provide for specific remedies from which such powers may further be
inferred.
5.2 Specific Remedies In The Context Of Unlawful Arrest, Surrender,

And Detention
i. IMT and IMTFE
As stated previously, the IMT and IMFTE Charters, Rules of Procedure, and case law are
silent on the availability of remedies for procedural violations. Nor do they provide for any
specific remedies, such as the exclusion of evidence.
a. Stays of proceedings
A stay of proceedings at the ad hoc Tribunals and SCSL is a judicial ruling by which the
proceedings are brought to a halt. Pursuant to the case law of the ad hoc Tribunals, a
distinction may be drawn between ‘permanent’ and ‘non-permanent’ stays of proceedings.
To impose a permanent stay of proceedings is to decline to exercise jurisdiction over the
accused. It entails the dismissal of the case, i.e. the charges against the accused, and bars
prosecution for the same charges at a later date.1307 By contrast, a non-permanent stay of
proceedings at the ad hoc Tribunals does not (at least, not initially) involve the setting aside
of jurisdiction. Like permanent stays, a non-permanent stay may be imposed in connection
with the fairness of the trial. Unlike a permanent stay, however, the non-permanent stay
presupposes that a fair trial is still possible. For example, in the ICTY case of Brđanin and
Talić, the pre-trial judge held that, ‘if the Trial Chamber is satisfied that the absence of [the
resources necessary to ensure a fair trial] will result in a miscarriage of justice, it has the
inherent power and the obligation to stay the proceedings until the necessary resources (p.
356) are provided, in order to prevent the abuse of process involved in such a trial’.1308 In
another ICTY case, the Appeals Chamber held that:
The only inherent power that a Trial Chamber has is to ensure that the trial of an
accused is fair; it cannot appropriate for itself a power which is conferred
elsewhere. As such, the only option open to a Trial Chamber, where the Registrar
has refused the assignment of new Counsel, and an accused appeals to [the Trial
Chamber], is to stay the trial until the President has reviewed the decision of the
Registrar.1309
In the ICTR case of Nahimana et al., the pre-appeal judge found that ‘in order to preserve
the fairness and efficiency of the proceedings’, it was ‘necessary to stay the proceedings …
until a new lead counsel has been assigned to represent [the appellant]’.1310 As, however,
the focus of this chapter is on violations of rules governing arrest and detention (and the
consequences that may be attached to such violations), which cannot be remedied by a non-
permanent stay,1311 the remainder of this section will focus on permanent stays of
proceedings.
Although the respective Statutes and RPE of the ad hoc Tribunals do not expressly provide
for permanent or non-permanent stays of proceedings, both the ICTY and ICTR have held
that such stays may, under certain circumstances, be imposed. The basis for a permanent
stay of proceedings at the ad hoc Tribunals is the doctrine of abuse of process.1312 In
embracing the doctrine, the shared Appeals Chamber of the ad hoc Tribunals has stressed
that it may be invoked as a matter of discretion.1313
According to the shared Appeals Chamber of the ad hoc Tribunals, applications for a
permanent stay of proceedings on the basis of an alleged unlawful arrest or detention do
not constitute challenges to jurisdiction within the meaning of Rule 72(D) of the RPE, i.e. to
the personal, territorial, temporal, or subject-matter jurisdiction defined therein.1314 Rather,
such challenges are relevant to the issue of jurisdiction ‘in a wide sense’,1315 i.e. to the
discretion of the ad hoc Tribunals to take cognizance of the case against the accused. As
such, applications for permanent stays of proceedings must be brought pursuant to Rule 73
of the RPE, which governs motions other than ‘preliminary motions’, not Rule 72(D).1316 At
the SCSL, abuse of process applications are expressly provided for in Rule 72(B)(v) of the
SCSL RPE.1317
As to the circumstances under which such permanent stays may be granted, in the ICTR
case of Barayagwiza, the Appeals Chamber held that, ‘the abuse of process doctrine may be
(p. 357) relied on in two distinct situations: (1) where delay has made a fair trial for the
accused impossible; and (2) where in the circumstances of a particular case, proceeding
with the trial of the accused would contravene the court’s sense of justice, due to pre-trial
impropriety or misconduct’.1318 It was the second situation on which the remainder of the
appeals decision focused,1319 and in order for the proceedings to be stayed on that basis,
such ‘pre-trial impropriety or misconduct’ would have to entail ‘serious and egregious
violations of the accused’s rights’.1320 In addition, the Appeals Chamber was of the view
that, under that doctrine (and, by extension, where the rights of the accused have been
‘egregiously violated’), it is ‘irrelevant which entity or entities are responsible for the
alleged violations of the [accused’s] rights’.1321 In that case, a plethora of violations was
found to have been committed in the context of the accused’s pre-trial detention, including
the violation of the accused’s right to be brought promptly before the judicial authorities,
his right to be informed promptly of the reasons for arrest, and his right to challenge the
lawfulness of detention. According to the Appeals Chamber, the combination of such
violations (and the ICTR prosecutor’s part therein) warranted the application of the abuse
of process doctrine and, by extension, a permanent stay of proceedings.1322 Upon review,
however, the ICTR Appeals Chamber considered that although the appellant’s rights had
been violated, such violations were less extensive than previously thought, and therefore no
longer justified the setting aside of jurisdiction.1323
Nevertheless, the test formulated by the Appeals Chamber in Barayagwiza for imposing a
permanent stay of proceedings was endorsed in the ICTY cases of Nikolić1324 and
Karadžić.1325 In the former case, the accused alleged he had been captured by unknown
individuals in the Federal Republic of Yugoslavia before being handed over to the NATO-led
Stabilisation Force (SFOR) in Bosnia and Herzegovina and ultimately to the ICTY. In
considering whether the remedy sought (the setting aside of jurisdiction and release of the
accused) was warranted, the Trial Chamber stressed that, in order to invoke the doctrine,
‘it needs to be clear that the rights of the Accused have been egregiously violated’.1326 As to
what constitutes an egregious violation, the Trial Chamber held that ‘in a situation where
an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or
degrading treatment, or torture, before being handed over to the [ICTY], this may
constitute a legal impediment to the exercise of jurisdiction over such an accused’ and that
even without the involvement of the prosecution or SFOR, the Trial Chamber would find it
‘extremely difficult to justify the exercise of jurisdiction over a person … after having (p.
358) been seriously mistreated’.1327 Since Nikolić, the Appeals Chamber has confirmed that
the remedy of setting aside jurisdiction is not limited to cases of serious mistreatment and
that ‘other egregious violation[s]’ are imaginable.1328 In addition, the Nikolić Trial Chamber
confirmed the Appeals Chamber’s finding in Barayagwiza that, ‘in cases of egregious
violations of the rights of the [a]ccused’, it is irrelevant which entity was involved.1329
Therefore, it is not only in cases of serious mistreatment that it is irrelevant which entity
was involved. Rather, such finding applies to all egregious violations, including serious
mistreatment. Accordingly, the case law of the ad hoc Tribunals does not ‘introduce a dual
standard for the abuse of process doctrine, depending on the nature of the entity which
carried out the alleged misconduct’.1330 Further, in finding that the serious mistreatment of
an accused prior to being surrendered to the ICTY might impede the exercise of jurisdiction
over such an accused, the Nikolić Trial Chamber noted that this would ‘certainly be the
case if the Tribunal was somehow involved’.1331 In other words, the collusion by (an organ
of) the ad hoc Tribunals in the violation is a factor weighing in favour of setting aside of
jurisdiction, due to its capacity to elevate serious violations of the accused’s rights, to
egregious ones.1332, 1333
In the end, the Trial Chamber in Nikolić found that the treatment of the accused by the
unknown individuals at the time of arrest was not of such an egregious nature as to impede
the exercise of jurisdiction. Its reasoning was upheld on appeal, with the Appeals Chamber
confirming that ‘certain human rights violations are of such a serious nature that they
require that the exercise of jurisdiction be declined’ and that, apart from such exceptional
cases, the remedy of setting aside jurisdiction ‘will … usually be disproportionate’.1334
According to the Appeals Chamber, the setting aside of jurisdiction will be disproportionate
where the ‘essential interests of the international community in the prosecution of persons
charged with serious violations of international humanitarian law’ outweigh the
fundamental rights of the accused.1335
Finally, depending on the nature of the stay of proceedings imposed, an accused is entitled
to release from custody. Where a non-permanent stay is imposed, the ‘consequences of such
a stay upon the continued detention of the accused would depend upon the circumstances
of the particular case’.1336 In other words, a non-permanent stay will not necessarily result
in the release of the accused. By contrast, where the proceedings are stayed permanently,
the accused must be released from custody.1337
(p. 359) b. Financial compensation
Neither the Statutes nor RPEs of the ICTY, ICTR, or SCSL expressly provide for financial
compensation upon violation of the rights of the accused. Nor do the ad hoc Tribunals or
SCSL provide for a budget for this purpose. Nevertheless, the shared Appeals Chamber of
the ad hoc Tribunals has held that such compensation may, under certain circumstances, be
claimed. In finding that the violations of the accused’s rights were less extensive than
previously thought, and therefore no longer justified the setting aside of jurisdiction, the
Appeals Chamber in Barayagwiza found that the accused would be entitled to financial
compensation upon acquittal or to sentence reduction upon conviction. Financial
compensation is, therefore, considered a lesser remedy than a stay of proceedings.
According to the Appeals Chamber, the accused was entitled to one of these remedies in
view of the fact that ‘all violations demand a remedy’.1338 Therefore, the primary purpose of
both financial compensation and sentence reduction is to provide a remedy for the violation
of the accused’s rights. Since Barayagwiza, the availability of financial compensation in
cases of acquittal has been confirmed in several cases before the ad hoc Tribunals,1339 but
ordered in only one.1340 It is not entirely clear whether the attribution of the violation to an
organ of the relevant ad hoc Tribunal is a prerequisite for the remedies of financial
compensation and sentence reduction and, if so, what level of involvement is required. In
both Barayagwiza and Semanza, the Appeals Chamber held that ‘all violations demand a
remedy’,1341 which has been construed by some authors as ‘support for the idea that the
Tribunal will remedy any violations in the context of its case, whether or not the violations
could be attributed to the Prosecutor’.1342 Nevertheless, as the ICTY Trial Chamber pointed
out in the case of Karadžić:
… the major discussions and findings [in the relevant ICTR decisions in the cases of
Barayagwiza, Semanza and Kajelijeli, as relied upon by Karadžić in support of his
argument that attribution of rights violations to the ad hoc Tribunals need not be
shown] ultimately revolved around the Prosecution’s responsibility for violations,
rather than the responsibility of State authorities.1343
According to the ICTY Trial Chamber in Karadžić, there was ‘substance in the Prosecution’s
submission that, before being able to obtain the remedy he seeks, the Accused has to be
able to attribute the infringement of his rights to one of the organs of the Tribunal or show
that at least some responsibility for that infringement lies with the Tribunal’.1344 Finally, it
is worth noting that in the one case in which financial compensation was granted for
violations of an accused’s rights, the violation in question was attributable to the ICTR
Registrar.1345
Following the Barayagwiza and Semanza cases, the Presidents of the ICTR and ICTY wrote
letters to the Security Council seeking the amendment of the respective Statutes of the
ICTY and ICTR to include a provision on financial compensation as a remedy for violations
of the rights of the accused. In particular, they envisaged compensation in three (p. 360)
situations: where an individual is unlawfully arrested or detained, where an individual is
wrongly prosecuted, and where an individual is wrongly convicted.1346 As Zappalà notes,
the incorporation of such a provision in the respective Statutes of the ICTY and ICTR would
have strengthened the ad hoc Tribunals’ authority to award financial compensation by
facilitating the creation of a specific budget or, alternatively, the allocation of part of the
general budget (as funded by the member states of the UN) for this purpose.1347 Similarly,
Beresford has written that:
… the most striking argument against attributing the necessary competence to the
ad hoc Tribunals is that their powers and functions are determined by the terms of
their Statutes and these instruments—as currently drafted—do not contain any
provisions giving the courts the authority to award compensation. Such authority is
a significant power that raises legitimate budgetary considerations, as well as
doubts whether the courts, as organs of the United Nations, may unilaterally create
financial liability for the Organization as a whole. While their Statutes may be
interpreted liberally in many respects, particularly so as to provide the ad hoc
Tribunals with the power to carry out their mandates, they contain no language
implying that the Security Council intended to allow them to make such awards.
Moreover, should they unilaterally decide to award compensation, the courts may
be seen by some members of the Security Council as overstepping their authority
and violating their Statutes.1348
In other words, the absence of a provision on financial compensation in the Statutes of the
ad hoc Tribunals renders the allocation of funds for such purposes challenging and, in this
way, undermines the availability of the remedy of financial compensation at those
tribunals.1349 Such budgetary ‘obstacles’ are, perhaps, why the ad hoc Tribunals limited the
availability of remedial financial compensation to cases of acquittal in the first place (and
why it continues to be so limited).
Given that neither the ICTY nor the ICTR make express provision for financial compensation
upon violation of the rights of the accused and that financial compensation has been
ordered in only one case, it is difficult to speak of an established procedure in this regard.
In Rwamakuba, the Appeals Chamber confirmed the Trial Chamber’s decision ordering,
pursuant to its ‘inherent power’,1350 the Registrar to pay André Rwamakuba financial
compensation (US$2,000) on account of his responsibility for the violation of Rwamakuba’s
right to legal assistance in the initial months of detention (and in doing so confirmed the
authority of trial chambers to award financial compensation).1351 However, it took some
time for the compensation to be paid,1352 as the Registrar initially indicated that he (p. 361)
would not be paying the compensation, on the grounds that ‘neither the statute nor the
budget of the ICTR make it possible to carry out financial reparations’ and that he would
instead be referring the matter ‘to his hierarchy’ at the UN.1353 While it may, therefore, be
true that ‘internal institutional considerations related to the execution of an order, including
budgetary matters, are separate considerations from the Tribunal’s authority to award an
effective remedy’,1354 the lack of express provision and a specific budget for financial
compensation appears to undermine the availability of such remedy at the ad hoc
Tribunals.1355
c. Sentence reduction
Although sentence reduction beyond time served is not expressly provided for in the
Statutes or RPEs of the ad hoc Tribunals or SCSL,1356 the shared Appeals Chamber of the
ICTY and ICTR has held that such compensation may, under certain circumstances, be
warranted. In finding that the violations of the accused’s rights were less extensive than
previously thought (and therefore no longer justified the setting aside of jurisdiction), the
Appeals Chamber in Barayagwiza found that the accused would be entitled to sentence
reduction upon conviction (or to financial compensation upon acquittal).1357 Like financial
compensation, therefore, sentence reduction is considered a lesser remedy than a stay of
proceedings. Upon conviction, Barayagwiza’s sentence was reduced from one of life
imprisonment to 32 years.1358 The same approach was adopted in the Semanza case.1359 In
convicting the accused, the ICTR Trial Chamber found that ‘it was appropriate to reduce
the Accused’s sentence by a period of six months’ in view of the violations committed in the
context of his pre-trial detention.1360 In the Kajelijeli case, the ICTR Appeals Chamber
found that the violations committed in the context of the accused’s pre-trial detention,
together with the violation of the accused’s other fundamental rights (such as the right to
counsel), warranted the conversion of the Trial Chamber’s sentence of two life sentences
and 15 years1361 into a single sentence consisting of a fixed term of imprisonment of 45
years.1362 As with financial compensation, it is unclear whether the attribution of the
violation to (an organ of) the relevant ad hoc Tribunal is a prerequisite for the remedy of
sentence reduction and, if so, what level of involvement is required.
As to when sentence reduction may be sought as a remedy, in the ICTY case of Karadžić, the
Trial Chamber held that because such remedy is ‘dependent on the outcome of the trial and
is to take effect following the issuing of the judgement’ it was ‘premature’ to impose such a
remedy at that point (in the pre-trial stages of the proceedings) and, furthermore, (p. 362)
that it would be open to the accused ‘to make arguments relevant to sentencing towards the
end of his trial’.1363
d. Other remedies
According to the Semanza Appeals Chamber, ‘any violation, even if it entails a relative
degree of prejudice, requires a proportionate remedy’.1364 The Appeals Chamber has also
held that, in practice, the effective remedy for violations of rights ‘will almost always take
the form of equitable or declaratory relief’.1365 The latter appears to be an appropriate
remedy where the violation of the suspect’s or accused’s rights results in ‘minimal, if any,
prejudice’.1366 In the Karadžić case, declaratory relief has been granted on numerous
occasions for disclosure violations on the part of the prosecutor, where there has been no
prejudice to the accused. In a partially dissenting opinion on the matter, however, Judge
Kwon opined that ‘when the Accused does not suffer any prejudice resulting from the
Prosecution’s violation of Rule 68 … it is unnecessary, moot or even frivolous to issue a
declaratory finding that the Prosecution has violated Rule 68 of the Rules. It serves no
purpose.’1367 He further stated that:
The jurisprudence clearly states that ‘if the Defence satisfies the Tribunal that there
has been a failure by the Prosecution to comply with Rule 68, the Tribunal … will
examine whether or not the Defence has been prejudiced by that failure to comply
before considering whether a remedy is appropriate … ’ Accordingly, in the absence
of prejudice, the Accused will not be given any remedy, including a declaration that
the Prosecution has violated Rule 68.1368
Nevertheless, the Trial Chamber has continued to grant declaratory relief where the
violation has caused no, or minimal prejudice, to the suspect or accused.1369
iii. ICC
The ICC also draws a distinction between permanent and ‘conditional’ stays of proceedings.
Turning first to the permanent stay, the ICC Appeals Chamber held in Lubanga that:
Where fair trial becomes impossible because of breaches of the fundamental rights
of the suspect or the accused by his/her accusers, it would be a contradiction in
terms to put the person on trial. Justice could not be done. A fair trial is the only
means to do justice. If no fair trial can be held, the object of the judicial process is
frustrated and the process must be stopped.1370
Also in the same decision, the Appeals Chamber held that:
Where the breaches of the rights of the accused are such as to make it impossible
for him/her to make his/her defence within the framework of his rights, no fair trial
can take place and the proceedings can be stayed … Unfairness in the treatment of
the suspect or the accused may rupture the process to an extent making it
impossible to piece together the constituent elements of a fair trial.1371
(p. 363) Such statements were made in the context of allegations that the appellant had
been illegally detained and ill-treated by the national Congolese authorities and that the
ICC prosecutor had colluded with such authorities. The Appeals Chamber eventually
observed that the ‘nature of such allegations were such that, if established, the breaches of
the rights of the appellant might have led to an objectively irreparable and incurable
situation’ and that a stay of proceedings imposed on such a basis ‘would be absolute and
permanent’.1372 As such, a permanent stay of proceedings is a ‘drastic’ and ‘exceptional’
remedy.1373 Although ICC trial chambers appear to have formulated their own different
tests,1374 the ICC Appeals Chamber has in subsequent decisions referred to the statements
quoted previously as the test for imposing a permanent stay of proceedings.1375
As to the scope of the test, it appears that the fair trial references in at least the first of the
statements are to be ‘perceived and applied’ broadly, to ‘[embrace] the judicial process in
its entirety’.1376 In other words, such references are not limited to the right to fair trial
proper (fair trial in a narrow sense).1377 The ICC Appeals Chamber’s reliance on the
ECtHR’s findings in the case of Teixeira de Castro v. Portugal1378 may be instructive in this
regard,1379 since in that case, the ECtHR found a violation of Article 6 of the ECHR ‘on
account of considerations … which were in no way related to the impairment of the ability
to determine guilt accurately’, i.e. to the impairment of the right to a fair trial proper.1380
Accordingly, a fair trial may become impossible due to violations of the suspect’s or
accused’s rights, even if such violations do not affect the ability of the accused to mount an
effective defence and, by extension, the ability to determine guilt accurately (trial fairness).
This includes violations occurring in the ‘process of bringing an accused to justice’,1381 i.e.
violations of rights related to arrest and pre-trial detention. In such circumstances, the
question is not whether the suspect or accused can receive a fair trial (proper), but whether
in the circumstances it would be fair to put them on trial in the first place.
As observed by the Appeals Chamber in Lubanga, neither the ICC Statute nor RPE provide
for permanent or conditional stays of proceedings.1382 In particular, it found that ‘[t]he
power to stay proceedings for abuse of process … is not generally recognised as an
indispensable power of a court of law, an inseverable attribute of the judicial power’ and
that ‘the [ICC] Statute does not provide for stay of proceedings for abuse of process as
such’.1383 It observed, however, that the abuse of process doctrine:
(p. 364) … had ab initio a human rights dimension in that the causes for which the
power of the Court to stay or discontinue proceedings were largely associated with
breaches of the rights of the litigant, the accused in the criminal process, such as
delay, illegal or deceitful conduct on the part of the prosecution and violations in the
process of bringing him/her to justice.1384
‘More importantly’, it observed that Article 21(3) of the ICC Statute requires the ICC to
exercise its jurisdiction ‘in accordance with internationally recognized human rights
norms’.1385 According to the Appeals Chamber, the obligation to abide by human rights
standards, ‘first and foremost … the right to a fair trial’, when exercising jurisdiction,
conferred on the ICC the power to stay the proceedings (i.e. to not (continue to) exercise
jurisdiction). Therefore, whilst the Appeals Chamber has rejected the abuse of process
doctrine insofar as it entails the inherent power of a court to impose a stay of proceedings,
it certainly does not appear to have rejected the ‘contextual and policy considerations’1386
underlying it.
As to conditional stays of proceedings, the Appeals Chamber has held that: ‘If the
unfairness to the accused person is of such nature that—at least theoretically—a fair trial
might become possible at a later stage because of a change in the situation that led to the
stay, a conditional stay of the proceedings may be the appropriate remedy.’1387 According to
the Appeals Chamber, a conditional stay of proceedings may be lifted where the ‘obstacles’
that led to the imposition of such a stay fall away.1388 Therefore, conditional stays do not
necessarily permanently bar ICC trial chambers from exercising jurisdiction over the
person concerned.1389 Nevertheless, a conditional stay of proceedings may need to be
converted to a permanent stay where, ‘in particular because of the time that has elapsed’, a
fair trial has become ‘permanently and incurably impossible’.1390 It is important to note that
violations of the rights of the suspect or accused in the context of arrest and pre-trial
detention will not usually affect the ability of the accused to receive a fair trial proper. As
conditional stays appear to be concerned with the fairness of the trial within this narrow
sense, they will not receive any further attention in this chapter.1391
Regarding the legal basis for an application for a permanent stay of proceedings on the
basis of an (alleged) unlawful arrest or detention, the ICC Appeals Chamber has held that
such applications do not constitute challenges to jurisdiction within the meaning of Article
19(2) of the ICC Statute, but rather argue that the ICC ‘should refrain from exercising its
jurisdiction in the matter in hand’. According to the Appeals Chamber, the true
characterization of such applications is that of a ‘sui generis application, an atypical motion,
seeking a stay of proceedings’.1392 The term ‘sui generis’ in this context conveys
… the notion of a procedural step not envisaged by the Rules of Procedure and
Evidence or the Regulations of the Court invoking a power possessed by the Court
to remedy breaches of the process in the interest of justice. The application could
only survive if the Court was vested with jurisdiction under the Statute or endowed
with inherent power to stop judicial proceedings where it is just to do so.1393
(p. 365) As to the circumstances under which a permanent stay of proceedings may be
imposed, in the first place, ‘not each and every breach of the rights of the suspect and/or
the accused [entails] the need to stay the relevant proceedings’ and ‘only gross violations of
those rights … justify that the course of justice be halted’.1394 Therefore, not every violation
of the suspect’s or accused’s rights in the exercise of the ICC’s jurisdiction will require the
ICC to divest itself of jurisdiction. Only those which render a fair trial (broadly construed)
impossible will require it to do so. In the second place, according to the test formulated by
the Appeals Chamber (as set out previously), such a stay may be imposed in cases of
breaches of the fundamental rights of the suspect or the accused ‘by his/her
accusers’ (rendering a fair trial impossible). This means that where such breaches have
been committed by national authorities or unknown third parties, ‘concerted action’
between such authorities or individuals and the ICC (as the ‘accuser’) must be
established.1395 Regarding the requirement of concerted action, the ICC Appeals Chamber
has held that: ‘Mere knowledge on the part of the Prosecutor of the investigations carried
out by the Congolese authorities is no proof of involvement on his part in the way they were
conducted or the means including detention used for the purpose.’1396 On appeal, the
Lubanga Pre-Trial Chamber’s finding that no concerted action had taken place between the
Congolese authorities and the ICC was confirmed.1397 In addition, the Appeals Chamber
confirmed the Pre-Trial Chamber’s findings ‘respecting the absence of torture or serious
mistreatment’.1398 What is unclear from such findings, however, is whether in cases of
torture or serious mistreatment of a suspect or an accused by national authorities or
unknown individuals it is necessary to establish concerted action between such authorities
or individuals and the ICC.1399 While a number of authors have interpreted the Appeals
Chamber’s findings to mean that the ICC would decline to exercise jurisdiction in such
cases regardless of the entity or entities involved, in line with the ICTY’s approach in
Nikolić,1400 others have not ruled out the possibility that such cases will be subject to the
test formulated by the Appeals Chamber in its entirety, pursuant to which jurisdiction may
be set aside upon violation of the rights of the accused ‘by his/her accusers’.1401 The scope
of the test has, in other words, yet to be clarified. In any case, the determination of the ICC
judges of whether to stay the proceedings permanently involves a balancing exercise in
which the ‘interest of the world community to put persons accused of the most heinous
crimes against humanity on trial’ are weighed against the ‘need to sustain the efficacy of
the judicial process as the potent agent of justice’.1402
(p. 366) On a more practical note, the ICC Appeals Chamber has held in relation to the
timing of applications for a permanent stay of proceedings that: ‘It is consistent with the
role of the Pre-Trial Chamber and the purpose of the confirmation proceedings that, in the
absence of any provision to the contrary, motions alleging unlawful pre-surrender arrest
and detention and seeking a stay of proceedings should be brought during the pre-trial
phase of the proceedings.’1403 Only in exceptional circumstances will the accused be
permitted to raise his or her alleged unlawful arrest, surrender, or pre-trial detention at the
trial stage.1404
Finally, regarding the issue of release, the ICC Appeals Chamber has held that ‘if a
permanent and irreversible stay of the proceedings is imposed the accused person will have
to be released because continued detention would not be in connection with the exercise of
criminal jurisdiction by the [ICC]’.1405 By contrast, where a chamber has ordered a
conditional stay, ‘the unconditional release of the person concerned is not the inevitable
consequence’.1406
b. Financial compensation
Article 85 of the ICC Statute provides for (financial) compensation ‘to an arrested or
convicted person’ in three different scenarios.1407 First, where a person has been
unlawfully arrested or detained, that person is entitled to financial compensation
(paragraph 1). Secondly, where a person has been convicted and punished, and the
conviction is later overturned on the basis of newly discovered facts, that person is entitled
to compensation to the extent that he or she has undergone punishment (paragraph 2).
Thirdly, where a person has been acquitted or the proceedings terminated, compensation
may be available to a person who has been detained, but only in exceptional circumstances,
i.e. upon showing that there has been a ‘grave and manifest miscarriage of
justice’ (paragraph 3). It is important to note that unlike the first two scenarios, the third
‘confers no right to compensation, but allows for compensation to be awarded in the [ICC’s]
discretion’.1408 In the context of unlawful arrest and pre-trial detention, only the first and
third paragraphs are relevant.
The first and third paragraphs of Article 85 envisage compensation under different sets of
circumstances. While the compensation envisaged in the first paragraph concerns unlawful
arrest and detention, i.e. the non-adherence to the rules governing the arrest and pre-trial
detention of an individual, the third paragraph envisages compensation for unjust detention
due to ‘a grave and manifest miscarriage of justice’. In other words, the ‘injustice’ of the
detention required in the third paragraph goes beyond the non-adherence to such rules.1409
Another difference between the two paragraphs is that unlike the third paragraph, which
envisages compensation upon acquittal or the proceedings being terminated, the right to
compensation in the first paragraph is not dependent on a particular outcome of the
proceedings. In principle, therefore, compensation for unlawful arrest or (p. 367) detention
(as provided for in Article 85(1) of the ICC Statute) is available upon conviction and
acquittal, but also if the person concerned is never brought to trial.1410
None of the paragraphs specifies whether the ‘unlawful arrest or detention’ or the
‘miscarriage of justice’ must be attributable to the ICC in some way in order to trigger
Article 85.
As to the procedure for awarding such compensation, the request for compensation must be
based on a decision by the court that the arrest or detention was/is unlawful (for requests
pursuant to the first paragraph of Article 85 of the ICC Statute) or that there has been a
grave and manifest miscarriage of justice (for requests pursuant to the third paragraph of
Article 85).1411 Pursuant to Rule 173(1) of the ICC RPE, which applies to all three
paragraphs of Article 85, it is a chamber of judges, designated by the presidency especially
for that purpose, that considers and decides on the request for compensation. Those judges
‘shall not have participated in any earlier judgement … regarding the person making the
request’.1412 As such, the proceedings for awarding compensation are separate from those
for determining the unlawfulness of the arrest or detention.1413
Although financial compensation is expressly provided for in the ICC Statute, no indication
is provided as to how such compensation is to be funded.1414 The ICC Statute does not
make provision for a specific budget or fund in this regard.1415 Whilst no specific budget
exists for such purposes, the incorporation of such a provision in the ICC Statute may
arguably be construed as implicit consent on the part of the states parties (as bearers of the
ICC budget) that any financial compensation ordered is to be paid out of the general
budget, as determined by the Assembly of states parties, which in turn consists of assessed
contributions by states parties and funds provided by the UN.1416 Whether, in practice, the
general budget is used for such purposes remains to be seen and, if so, it will be interesting
to see whether the use of the general budget for such purposes gives rise to challenges by
states parties who wish to see it spent in other ways.
Neither the ICC Statute nor RPE expressly provide for sentence reduction upon finding that
the accused’s rights were violated. Nor has this remedy been properly considered in the
case law.1417 Such a remedy may, arguably, be read into Article 85 of the ICC Statute, which
speaks of ‘compensation to an arrested or convicted person’, not of financial
compensation.1418 In the event that ICC judges do read sentence reduction into Article (p.
368) 85 (or otherwise confirm its availability), the availability of such a remedy for unlawful
arrest or detention alongside financial compensation raises potentially difficult questions as
to their respective scopes of application in cases of conviction. In the event that the ICC
does recognize sentence reduction as a remedy in cases of unlawful arrest or detention, it is
of paramount importance that it sets out under which circumstances each remedy is
available.
d. Other remedies
In a recent decision concerning the non-compliance of the prosecutor with the Pre-Trial
Chamber’s orders of disclosure and the Trial Chamber’s subsequent imposition of an
unconditional stay of proceedings, the ICC Appeals Chamber held that before ordering a
stay of proceedings, the Trial Chamber should have imposed the sanctions prescribed by
Article 71 of the ICC Statute.1419 According to the Appeals Chamber, such sanctions ‘are
the normal and proper means to bring about compliance in the face of refusals to follow the
orders of the [Trial Chamber]’.1420 Pursuant to Article 71, such sanctions include
‘administrative measures other than imprisonment, such as temporary or permanent
removal from the courtroom, a fine or other similar measures provided for in the [ICC]
Rules of Procedure and Evidence’ and may be imposed upon misconduct, including
disruption of the court’s proceedings or deliberate refusal to comply with the court’s
directions. As to whether such sanctions apply to procedural violations arising in the
context of arrest and pre-trial detention, Article 71 of the ICC Statute appears to be limited
to misconduct committed inside the courtroom and, as such, does not appear to apply to
such violations.1421
iv. SPSC
The TRCP expressly provide for financial compensation for unlawful arrest and detention.
Pursuant to Section 52.2 of such rules:
Any person who is subjected to unlawful arrest or detention shall be entitled to

compensation in an amount and from a source of public funds which are allocated
to the administration of justice, to be determined by the competent court. An award
of compensation pursuant to the present section may be made as a part of the final
disposition of a criminal case involving the claimant, or by means of a separate civil
action.
Such a civil action has been pursued on at least one occasion.1422 In addition, Section 55
provides for the nullity of earlier acts ‘of any official or authority … found to be in violation
of a rule of criminal procedure’, some of which ‘cannot be remedied without new
proceedings’. As to whether any other remedies are available at the SPSC, although Section
55.3 of the TRCP appears to confer on the SPSC broad powers to provide remedies for
procedural violations (‘irregularities’), it is unclear what such remedies might be. In the
case of Sarmento et al., the SPSC appears to have been content to declare that some of the
acts of the investigating judge had been ‘irregular’ and not attach any further consequences
to the violation.1423
(p. 369) v. ECCC
In the context of the ECCC, it is important to note the difference between permanent stays
of proceedings and the ‘annulment’ provided for in Rule 48 of the Internal Rules. In this
regard, the ECCC Pre-Trial Chamber has noted that:
… when an application for annulment is granted, the investigative or judicial

action(s) declared null and void is (or are) expunged from the material on the case
file. Consequently, if the entire investigation is annulled, all the material will be
expunged from the case file, which leads to a consequence which must be
differentiated from that of a stay of proceedings for abuse of process. Both
procedures apply different standards and result in different consequences. If an
annulment is ordered, even of the entire investigation, there is nothing to prevent a
new investigation from placing new material, which is untainted by those defects,
on the case file. In the case of a stay of proceedings, the whole proceedings would
cease because the abuse has been found to be so egregious as to damage the
integrity of the entire process, there will no longer be any case to answer.1424
Thus, annulment of the entire investigation and a permanent stay of proceedings are
different remedies. The basis for a permanent stay of proceedings at the ECCC is the
doctrine of abuse of process.1425 Relying on the case law of the ICTY and ICTR, the ECCC
Pre-Trial Chamber has held that, pursuant to that doctrine, it would have to consider
whether the person invoking it:
… suffered a serious mistreatment or if there was any other egregious violation of

his rights. The Pre-Trial Chamber will need to be satisfied that the alleged
misconduct results in a violation of the … rights [of a charged person or an accused]
to a fair trial and that this violation is of such an egregious nature that the Pre-Trial
Chamber must permanently stay the proceedings.1426
According to the Pre-Trial Chamber, it ‘has a discretionary power to strike a correct balance
between the fundamental rights of [charged or accused persons] and the interests of the
international and national communities in the prosecution of persons charged with serious
violations of international humanitarian law and national law’ and therefore it was ‘only in
exceptional cases of egregious violations’ that a permanent stay of proceedings for abuse of
process could be ‘proportionate’.1427 In the case of Duch, the doctrine was addressed
amidst allegations that, at the time of the co-prosecutors’ request for the accused’s
placement into provisional detention, the accused had been detained for more than eight
years (in connection with proceedings before the Military Court of Phnom Penh), contrary
to both Cambodian law and international standards.1428 According to the co-investigating
judges, the question was whether such detention was ‘so excessive and prejudicial to the
rights of the Defence as to affect the very ability to bring [the accused’s case] within the
jurisdiction of the [ECCC]’.1429 Although this question was eventually answered in the
negative,1430 the co-investigating judges did acknowledge the availability of other ‘eventual’
remedies, such as sentence reduction, but considered that such remedies (p. 370) were not
‘at issue during the investigative phase’.1431 On appeal, the Pre-Trial Chamber confirmed
the co-investigating judges’ finding that they ‘did not have the jurisdiction to determine the
legality of [the accused’s] prior detention’ on the grounds that the ECCC had not acted in
concert with the military court.1432 Later on in the proceedings, the ECCC Trial Chamber
held that the abuse of process doctrine ‘may apply even in circumstances where there is no
concerted action between the international criminal tribunal and the external authorities’,
but that this only appears to apply to ‘instances of torture or serious mistreatment by the
external authorities’.1433 In addition, it held that ‘even where these violations [of the
accused’s rights] cannot be attributed to an international tribunal or do not amount to an
abuse of process, an accused may be entitled to seek a remedy for violations of his rights by
national authorities’.1434
According to the Trial Chamber, the accused’s prior detention in connection with
proceedings before the military court violated both Cambodian and international law.1435
Although this did not affect the order for the accused’s provisional detention,1436 it found
that the accused would be entitled to a reduction of sentence upon conviction (beyond time
served), or to seek other remedies before the national authorities of Cambodia upon
acquittal.1437 Upon conviction, the accused’s sentence was reduced by five years for the
violation of his rights.1438 On appeal, however, the Supreme Court Chamber found that the
Trial Chamber had ‘committed an error of law in granting a remedy based on “the case law
of the ICTR Appeals Chamber” which, upon deeper analysis, was misinterpreted by the
Trial Chamber’.1439 According to the Supreme Court Chamber, the Trial Chamber had
misinterpreted the case law ‘to mean that violations of Kaing Guek Eav’s rights should be
redressed by the ECCC even in the absence of violations attributable to the ECCC and in
the absence of abuse of process’.1440
vi. STL
In November 2010, the STL RPE were amended to add paragraphs (D) and (E) to Rule 170.
Rule 170(D) states that:
Following a final judgment of acquittal of an accused before the Tribunal or a final

decision that an accused before the Tribunal has been illegally arrested or detained
under the authority of the Tribunal as a result of a miscarriage of justice, he may
file a request to the President for compensation or other appropriate redress within
six months of the issuance of the final judgment or decision.
(p. 371) It is difficult to determine the precise scope of this provision. Nevertheless, Rule
170(D) only appears to envisage compensation (and ‘other appropriate redress’) for
unlawful arrest or detention in exceptional circumstances, i.e. upon showing that there has
been ‘a serious miscarriage of justice’.1441 Such ‘redress’ does not appear to be limited to
cases of acquittal, as Rule 170(D) prescribes that requests may be filed ‘[f]ollowing a final
judgment of acquittal of an accused before the Tribunal or a final decision that an accused
before the Tribunal has been illegally arrested or detained’.1442 The inclusion of the words
‘under the authority of the Tribunal’ appear to limit the scope of the provision, by excluding
‘serious miscarriages of justice’ committed solely in the national context, i.e. before any
official request for cooperation has been issued by the STL. Rule 170(E) sets out the
applicable procedure for Rule 170(D) requests.
vii. Synthesis
The ad hoc Tribunals, the ICC, and the ECCC all provide for permanent stays of
proceedings in exceptional circumstances. The fundamental reasoning behind a stay at
these courts and tribunals appears to be the same. At the ICC, a stay may be imposed
where no fair trial can be held, whereby the notion of fair trial is construed broadly to
encompass the ‘judicial process in its entirety’. This appears to encompass both ‘limbs’ of
the abuse of process doctrine at the ad hoc Tribunals. Moreover, the net result is the same.
At the ICTY, ICTR, and ECCC collusion by an organ of the tribunal in the violation of the
accused’s rights need not always be established in order to stay the proceedings
permanently. The ICC case law is less clear in this regard. In particular, the ICC case law is
unclear as to whether in cases of very serious mistreatment of the accused prior his or her
surrender to the ICC, such mistreatment must be attributable to the ICC in order to set
aside jurisdiction.
Neither the ad hoc Tribunals nor the ICC consider applications for a permanent stay of
proceedings to constitute challenges to jurisdiction in the narrow sense, i.e. as meant in the
respective statutes of the ad hoc Tribunals and the ICC. A further similarity between the ad
hoc Tribunals and the ICC is that upon staying the proceedings permanently, the accused
must be released unconditionally.
Whilst no express provision is made for financial compensation in the respective Statutes or
RPEs of the ICTY and ICTR, the availability of such compensation has been confirmed in the
case law. Nevertheless, the absence of such an express provision appears to undermine the
availability of such compensation at the ad hoc Tribunals. By contrast, financial
compensation is expressly provided for in the ICC Statute, the TRCP, and the STL RPE.
Regarding the ICC, whilst no specific budget exists for such purposes, the (p. 372)
incorporation of such a provision in the ICC Statute may arguably be construed as implicit
consent on the part of the states parties, as bearers of the ICC budget, that any financial
compensation ordered is to be paid out of the general budget. Whether, in practice, the
general budget is used for such purposes remains to be seen. Unlike the relevant provision
in the ICC Statute and TRCP, the STL provision only appears to allow for financial
compensation in exceptional circumstances, i.e. upon showing that there has been ‘a
serious miscarriage of justice’. As to the circumstances in which financial compensation
may be ordered, it is unclear whether at the ad hoc Tribunals or the ICC attribution of the
violation to such tribunals or court is a prerequisite for compensation. Further, while at the
ad hoc Tribunals financial compensation may only be ordered upon acquittal of the accused,
Article 85 of the ICC Statute, Section 52.2 of the TRCP, and Rule 170(D) of the STL RPE do
not appear to impose any such restriction.
Neither the respective Statutes nor Rules of the ad hoc Tribunals provide for a reduction of
sentence upon finding that the accused’s rights were violated in the context of arrest and
detention. Nevertheless, the reduction of sentence on account of such violations appears to
be established practice at the ad hoc Tribunals and at some internationalized criminal
tribunals. Although the ECCC has granted sentence reduction as a remedy in one case, it is
difficult to speak of established practice in this regard. As regards the ICC, sentence
reduction may, arguably, be read into Article 85 of the ICC Statute, which speaks of
‘compensation to an arrested or convicted person’, not of financial compensation. The
availability of sentence reduction alongside financial compensation for unlawful arrest or
detention upon conviction of the accused is potentially problematic in terms of the scope of
application of each remedy. While the ad hoc Tribunals’ approach sidesteps this problem,
the restriction of financial compensation to cases of acquittal raises other problems, as will
be discussed. Finally, it is unclear whether at the ad hoc Tribunals and ICC attribution of
the violation to such tribunals or court is a prerequisite for financial compensation and
sentence reduction.
d. Other remedies
Where the violation of the accused’s rights results in minimal or no prejudice to the
accused, declaratory relief may be an appropriate response, although the ICC has yet to
confirm the availability of this remedy in its case law.
B. Evaluation
i. Human rights law
a. ICCPR and ECHR
Article 2(3)(a) of the ICCPR confers a general right to an effective remedy on persons
whose rights have been violated, including those of criminal defendants.1443 This provision
is based on Article 13 of the ECHR, which provides that everyone whose rights and
freedoms in the ECHR are violated ‘shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons acting in an
official capacity’.1444 It should be recalled that the English term ‘remedy’ has different
meanings in the human rights context. It can refer to both ‘access to (legal) recourse’ (the
(p. 373) procedural remedy) and to substantive redress (reparation). Regarding the latter,
the Human Rights Committee has stated that:
Article 2, paragraph 3, requires that States Parties make reparation to individuals

whose [ICCPR] rights have been violated. Without reparation to individuals whose
[ICCPR] rights have been violated, the obligation to provide an effective remedy,
which is central to the efficacy of article 2, paragraph 3, is not discharged.1445
Article 2(3)(a) of the ICCPR encompasses both ‘access to recourse’ and reparation, whereby
the former precedes the latter: ‘Without access to recourse … the victim of a human rights
violation cannot demand or receive reparation’.1446 Reparation is an umbrella term for
many different forms of redress, including (but not limited to) restitution, compensation,
and satisfaction, which are usually cumulative.1447 However, this is not necessarily true for
restitution and compensation.1448 In International Law, restitution, which seeks to restore
the situation to the position existing before the violation occurred, constitutes the primary
objective of reparation; and compensation, which in this context refers to ‘economic or
monetary awards for certain losses, be they of material or immaterial, of pecuniary or non-
pecuniary nature’, is due when restitution cannot be obtained.1449 According to the
Permanent Court of International Justice in the Chorzów Factory case:
The essential principle contained in the actual notion of an illegal act—a principle
which seems to be established by international practice and in particular by the
decisions of arbitral tribunals—is that reparation must, as far as possible, wipe-out
all the consequences of the illegal act and re-establish the situation which would, in
all probability, have existed if that act had not been committed. [It must consist of
r]estitution in kind, or, if this is not possible, payment of a sum corresponding to the
value which a restitution in kind would bear.1450
Compensation is required where restitution is ‘materially impossible’, or where it involves

‘a burden out of all proportion to the benefit deriving from restitution instead of
compensation’.1451 In any case, the principle formulated in Chorzów Factory requires full
reparation, ‘in that it permits no remedial shortfall (except in cases of impossibility);
whatever damages cannot be corrected through in-kind restitution must otherwise be fully
compensated’.1452
In the context of the right to personal liberty, Article 9(5) of the ICCPR prescribes that:
‘Anyone who has been the victim of unlawful arrest or detention has an enforceable right to
compensation.’ Article 5(5) of the ECHR also provides for an enforceable right to
compensation in cases of unlawful arrest or detention. The claim to compensation in Article
9(5) can be considered ‘a specific type of domestic remedy within the meaning of [Article]
2(3) relating to liberty of person’.1453 The remedy envisaged by these provisions is one
before a (p. 374) court, ‘leading to a legally binding award of compensation’.1454 Such
compensation is usually financial,1455 ‘but may be broader in scope than mere financial
compensation’.1456 The claim to compensation prescribed in Article 9(5) of the ICCPR is
available to every victim of unlawful arrest or detention, regardless of whether a violation of
one of the provisions in Article 9(1) to (4) has been established. In other words, it is
sufficient that the arrest or detention contradicts a provision of domestic law or
international law.1457 By contrast, Article 5(5) of the ECHR only applies where any one or
more of the paragraphs (1) to (4) has been contravened, as established either by a domestic
authority or the ECtHR.1458 Neither Article 9(5) of the ICCPR nor Article 5(5) of the ECHR
applies to acquitted persons, whose pre-trial detention was based on reasonable suspicion
of having committed a crime.1459 As to the amount of compensation, it is important to note
that ‘it is likely that’ states are allowed a wide margin of appreciation.1460 A very low award
of compensation might, however, be entirely disproportionate to the duration of detention
and, as such, might entail a violation of the right to compensation.1461
b. ICTY, ICTR, and SCSL
The shared Appeals Chamber of the ad hoc Tribunals has recognized that ‘any violation of
the accused’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a)
of the ICCPR’.1462 In Rwamakuba, it held that ‘the nature and form of the effective remedy
should be proportional to the gravity of harm that is suffered’.1463 In a number of ICTR
cases, sentence reduction beyond time served commensurate with the violation of the rights
of the suspect or accused has been granted.1464 Therefore, as Starr points out, the ad hoc
Tribunals ‘seek a fit between rights and remedies’.1465 However, certain remedies, such as
the permanent stay of proceedings, which entails the dismissal of charges, can make the
defendant ‘better off than he would have been absent the violation’ and therefore ‘often
exceed the requirements of the full remedy rule [as formulated in the Chorzów Factory
case]’.1466 In a number of cases before the ad hoc Tribunals, the focus on the most extreme
remedy appears to have resulted in other remedies being ignored. In Nikolić, for example,
the defence sought a permanent stay of proceedings on the basis of the accused’s alleged
abduction by unknown actors. Although the failure of both the Trial and Appeals Chamber
to consider alternative remedies may not be surprising in view of the stage of the
proceedings at which the relief was sought, where the consideration of alternative remedies
such as financial compensation or sentence reduction would have been premature, or of the
(p. 375) fact that the defence had not explicitly sought alternative remedies, it is surprising
in view of both chambers’ reliance on the findings in the ICTR case of Barayagwiza, where
such alternative remedies were considered as a matter of principle. Neither the Trial nor
the Appeals Chamber makes any reference to such remedies or their reasons for not
considering them, let alone their willingness to consider them at a later stage.1467 Focusing
on the most serious violations and the most extreme remedy in cases of alleged unlawful
arrest or detention, i.e. the setting aside of jurisdiction, is problematic from a human rights
perspective, as less serious violations and lesser remedies tend to be overlooked.
Turning now to compensation for unlawful arrest and detention, although the ad hoc
Tribunals have held that they have, in principle, the authority to order financial
compensation for unlawful arrest or detention, the fact that it is not provided for in the
respective Statutes of the ICTY and ICTY has proved problematic. In the one case in which
financial compensation was ordered, the Registrar initially refused to put this into effect on
the grounds that neither the ICTR Statute nor budget make financial reparations possible.
Although the compensation was eventually paid, the lack of provision and a budget for
financial compensation is potentially problematic from a ‘right to an effective remedy’
perspective because it appears to affect the availability of such remedy. The fact that
financial compensation has been granted on only one occasion may be telling in this regard.
Regarding the restriction of the availability of the remedy to cases of acquittal at the ad hoc
Tribunals, given that the compensation envisaged in Article 9(5) of the ICCPR and 5(5) of
the ECHR does not appear to be limited to financial compensation, such a restriction is not
necessarily problematic from a human rights perspective, provided that another form of
compensation is available (such as sentence reduction).
c. ICC
The ICC has yet to recognize the general right to an effective remedy as meant in Article
2(3)(a) of the ICCPR in the context of violations of the rights of suspects or accused.1468
Pursuant to Article 21(3) of the ICC Statute, the application and interpretation of the law
applicable to the ICC (as set out in the first and second paragraphs of Article 21) ‘must be
consistent with internationally recognized human rights’. Although in the system of the ICC
Statute such internationally recognized human rights do not, therefore, constitute a source
of law as such, Article 21(3) sets out a ‘general principle of interpretation’,1469 which
‘makes the interpretation as well as the application of the law applicable under the Statute
subject to internationally recognised human rights’. This means that, where violations of
the suspect’s or accused’s rights are established, such violations should be addressed in the
light of the right to an effective remedy. In cases in which the violations are not so grave as
to warrant the setting aside of jurisdiction, the ICC may, accordingly, be under an obligation
to consider other, lesser remedies. Focusing on the most extreme remedy and, by extension,
the most serious violations may be problematic in this regard, as less serious violations and
the availability of alternative remedies tend to be overlooked.1470
(p. 376) A person whose arrest or detention is found to be (procedurally) unlawful has an
enforceable right to compensation pursuant to Article 85 of the ICC Statute. The first
paragraph of Article 85 is identical to Article 9(5) of the ICCPR. The third paragraph,
however, lacks a counterpart in the ICCPR (and in the other major international human
rights instruments) and, in this regard, would appear to represent an improvement on the
international human rights instruments.1471 Therefore, the enforceable right to
compensation in Article 9(5) of the ICCPR appears to be properly provided for in the ICC
Statute. It remains, however, to be seen how effective this remedy is, given the potential
budgetary obstacles the ICC faces.
d. Other international(ized) criminal tribunals
It is positive from a human rights perspective that the ECCC has explicitly recognized the
right to an effective remedy and that it has considered other, lesser remedies than the
permanent stay of proceedings in respect of violations arising in the context of arrest and
detention. The provision on financial compensation for unlawful arrest and detention in the
TRCP is broadly formulated and appears to be in compliance with the relevant provisions in
the ICCPR and ECHR. By contrast, financial compensation for unlawful arrest and detention
at the STL only appears to be available in exceptional circumstances, which may be
problematic from a human rights perspective.
Both common law and civil law (and mixed) jurisdictions allow for criminal proceedings to
be halted permanently in exceptional circumstances. In England and Wales:
… a court has a discretion to stay any criminal proceedings on the ground that to
try those proceedings will amount to an abuse of process either (1) because it will
be impossible (usually by reason of delay) to give the accused a fair trial or (2)
because it offends the court’s sense of justice and propriety to be asked to try the
accused in the circumstances of the particular case.1472
In Canada, a similar test applies.1473 In the US, a case may be dismissed ‘with prejudice’ on
account of prosecutorial misconduct. In the Netherlands, which has an essentially
inquisitorial system, the prosecution may be declared inadmissible if due to serious
violations of certain procedural standards the accused is prevented from receiving a fair
trial.1474 Whereas the ad hoc Tribunals have adopted the abuse of process doctrine as the
basis for setting aside jurisdiction, the ICC Appeals Chamber appears to have rejected it
insofar as it entails the inherent power of a court to impose a stay of proceedings.1475
Rather, the power to impose a stay flows from Article 21(3) of the ICC Statute, which,
according to the Appeals Chamber, requires the ICC to exercise jurisdiction ‘in accordance
with internationally recognized human rights norms’.1476 Nevertheless, the Appeals
Chamber does not appear to have rejected the ‘contextual and policy considerations’
underlying the doctrine. Moreover, the fundamental reasoning of the ad hoc Tribunals and
the common law jurisdictions applying the abuse of process doctrine, and the ICC, appear
to be the (p. 377) same. Therefore, neither approach appears to be problematic from a
comparative criminal procedure perspective.
Both adversarial and inquisitorial jurisdictions provide for financial compensation in cases
of unlawful arrest or detention, in accordance with international and regional human rights
instruments such as the ICCPR and ECHR. Both the ad hoc Tribunals and ICC make
provision for claims for compensation as meant in Article 9(5) of the ICCPR. In addition,
Article 85(3) of the ICC Statute provides for an additional ground for compensation, which
is not provided for in the major human rights instruments.1477 According to Staker,
however, compensation on this basis is not unheard of at the national level.1478
Sentence reduction has been applied as a remedy in both adversarial and inquisitorial
jurisdictions.1479 It has, moreover, been approved by the ECtHR in the context of, inter alia,
excessive pre-trial detention and undue delay.1480
d. Other remedies
The availability of declaratory relief at the international criminal tribunals is consistent with
national law and practice. In addition, the ECtHR has held that this can be an adequate
remedy.1481
An important goal of international criminal tribunals in the context of procedure is to
‘provide role models for national systems of criminal justice’.1482 According to this goal,
international criminal tribunals are under a moral obligation to send out the right message
to national systems by openly addressing violations of the rights of the suspect or accused
arising in the context of arrest or detention at the national level. As Swart points out, the
failure to uphold the rights of suspects or accused could ‘have negative consequences that
transcend the limited framework of [such tribunals]’.1483 From this perspective, the
tendency of both the ad hoc Tribunals and the ICC to focus on the most serious violations of
the rights of suspects or accused, warranting the most extreme remedy in cases of alleged
unlawful arrest or detention, i.e. the setting aside of jurisdiction, to the exclusion of less
serious violations and remedies, is problematic. Similarly, the apparent reluctance of the ad
hoc Tribunals to pay compensation for unlawful arrest or detention might send out the
wrong message to national systems.
Focusing on the most serious violations and the most extreme remedy, i.e. the setting aside
of jurisdiction, is problematic from a human rights perspective, as less serious violations
and lesser remedies tend to be overlooked. More specifically, this may be inconsistent with
the right to an effective remedy, as prescribed by Article 2(3)(a) of the ICCPR. Moreover, it
might send the wrong message to national systems.
Although the ad hoc Tribunals have the authority to order financial compensation in cases
of unlawful arrest or detention, the absence of a provision in the Statutes or RPEs and of a
specific budget undermines the availability of financial compensation at such tribunals,
which is problematic from a human rights perspective. For now, the ICC’s provisions on
financial compensation appear compatible with international human rights norms.
Interestingly, Article 85(3) of the ICC Statute appears to go further than the claim to
compensation prescribed by Article 9(5) of the ICCPR. The potential budgetary obstacles at
the ICC may, however, prove to be problematic.
Before going on to identify general rules and principles regarding the imposition of
remedies for procedural violations in the context of unlawful arrest and detention, it is
important to note the following. Although at the ad hoc Tribunals there is a body of case law
addressing the availability of permanent stays of proceedings, financial compensation, and
sentence reduction for such violations, there are relatively few examples of such remedies
being granted in practice. This is particularly so for the permanent stay of proceedings and
financial compensation. The same applies to the ICC and the other relevant courts and
tribunals. Whilst this does not mean that no general rules or principles may be distilled
from the existing case law, the scarcity of practical examples warrants caution in doing so.
Where such caution has led to the conclusion that no general rule or principle may be
distilled in a certain regard, recommendations have been made. These recommendations
have been formulated as principles or rules and are intended to complement the general
rules and principles set out in the following.
C. General Rules and Principles of International Criminal Procedure
i. Principles
Upon violation of the Rules of Procedure and Evidence or other applicable rules of
procedure, the judge or chamber has the power to impose a remedy.
[Rule 5 ICTY RPE, Rule 5 ICTR RPE, Section 55 TRCP, Rule 4 STL RPE;
Barayagwiza, AC, ICTR, 3 November 1999, Barayagwiza, AC, ICTR, 31 March 2000;
Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-01/06-772); Nuon Chea et al.,
PTC, ECCC, 26 August 2008]
ii. General rules

Any remedy imposed shall be proportionate to the violation.
[Semanza, AC, ICTR, 31 May 2000; Barayagwiza, AC, ICTR, 31 March 2000; D.
Nikolić, AC, ICTY, 5 June 2003; Nuon Chea et al., PTC, ECCC, 10 August 2010]
In cases where gross violations of the rights of the suspect or accused would irretrievably
prevent the accused from receiving a fair trial, the proceedings shall be stayed
permanently.
[Barayagwiza, AC, ICTR, 3 November 1999; D. Nikolić, TC, ICTY, 9 October 2002; D.
Nikolić, AC, ICTY, 5 June 2003; Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-(p.
379) 01/06-772); Kaing Guek Eav, TC, ECCC, 15 June 2009; Nuon Chea et al., PTC,
ECCC, 25 June 2010; Nuon Chea et al., PTC, ECCC, 10 August 2010]
The involvement of one or more organs of the Court in the violation of the rights of the
suspect or accused shall be a factor weighing heavily in favour of the imposition of a
permanent stay of proceedings.
[Barayagwiza, AC, ICTR, 31 March 2000; D. Nikolić, TC, ICTY, 9 October 2002;
Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-01/06-772)]
Where the proceedings are stayed permanently, the suspect or accused shall be released
immediately.
[Barayagwiza, AC, ICTR, 3 November 1999; Lubanga, AC, ICC, 21 October 2008
(ICC-01/04-01/06-1487)]
In cases of unlawful arrest, unlawful detention, or other related human rights violations, the
judge or chamber has the power to order financial or other appropriate compensation.
[Art. 85 ICC Statute; Rules 173, 174, and 175 ICC RPE; Section 52.2 TRCP; Rule
170(D) and (E) of the STL RPE; Barayagwiza, AC, ICTR, 31 March 2000; Semanza,
AC, ICTR, 31 May 2000; Kajelijeli, AC, ICTY, 23 May 2005; Rwamakuba, TC, ICTR,
31 January 2007, Rwamakuba, AC, ICTR, 13 September 2007]
D. Recommendations
Where a violation of the rights of the suspect or the accused is established, in addressing
that violation, the judge or chamber shall consider all of the available remedies proprio
motu. The judge or chamber shall give reasons for any decision made in this regard.
When both financial compensation and sentence reduction are available and appropriate,
the selection of remedy shall depend on the facts and circumstances of the case.
Where a violation of the rights of the suspect or the accused is established but minimal or
no prejudice is caused to such person, declaratory relief shall be the appropriate remedy.
Footnotes:
1
Arts 14 and 15(a) IMT Charter and Art. 8(a) IMTFE Charter.
2
Art. 15(a) and (c) IMT Charter.
3
Art. 8(a) IMTFE Charter.
4
R. May and M. Wierda, International Criminal Evidence (Ardsley, NY: Transnational
Publishers, 2002) 51–2. This is not to say that the Prosecution did not encounter great
difficulties in gathering evidence. Consider e.g. G. Ginsburgs and V.N. Kudriavtsev (eds),
The Nuremberg Trial and International Law (Dordrecht/Boston/London: Martinus Nijhoff
Publishers, 1990) 73 (on the difficulties in gathering evidence to prove a Nazi conspiracy).
5
S. Zappalà, ‘Rights of Persons during an Investigation’, in Cassese/Gaeta/Jones (eds), The
Rome Statute of the International Criminal Court 1184.
6
Zappalà (n 5) 1184.
7
G.S. Gordon, ‘Toward an International Criminal Procedure: Due Process
Aspirations’ (2007) 45 Columbia Journal of Transnational Law 635, 644; R.J. Wilson, ‘A
History of the Role of Defense Counsel in International Criminal and War Crimes Tribunals’,
in M. Bohlander et al. (eds), Defense in International Criminal Proceedings: Cases,
Materials and Commentary (Ardsley, NY: Transnational Publishers, 2006) 42.
8
M. Bergsmo et al., ‘The Prosecutors of the International Tribunals: the Cases of the
Nuremberg and Tokyo Tribunals, the ICTY and ICTR, and the ICC Compared’, in L. Arbour
et al. (eds), The Prosecutor of an International Criminal Court: International Workshop in
Co-operation with the Office of the Prosecutor of the International Criminal Tribunals (ICTY
and ICTR) (Freiburg im Breisgau: Max-Planck Institut für ausländisches und internationales
Strafrecht, 2000) 484.
9
S. Zappalà, Human Rights in International Criminal Proceedings (Oxford: Oxford
University Press, 2003) 45. See section 3.1.1 (A)(i).
10
Rule 2 ICTY, ICTR, and SCSL RPE.
11
Rule 54 ICTY, ICTR, and SCSL RPE and Rule 54bis ICTY RPE. In general, the right for
the Defence to conduct its own investigations follows from the right afforded to the accused
person to have ‘adequate time and facilities for the preparation of his defence’ and the
general ‘right to a fair trial’. See Art. 21(4)(b) ICTY Statute; Art. 20(4)(b) ICTR Statute; and
Art. 17(4)(b) SCSL Statute.
12
See section 2 A(ii)(c).
13
Art. 16(2) ICTY Statute; Art. 15(2) ICTR Statute; Art. 15(1) SCSL Statute.
14
M.R. Bruchbacher, ‘Prosecutorial Discretion within the International Criminal
Court’ (2004) 2 JICJ 71, 77.
15
Art. 18(1) ICTY Statute and Art. 17(1) ICTR Statute expressly refer to information
received from governments, United Nations organs, intergovernmental and non-
governmental organizations. No similar provision can be found in the SCSL Statute.
16
According to the Rules, the confirmation of the charges is the first procedural step
under Part V (‘Pre-Trial Proceedings’).
17
Čermak and Markač, TC, ICTY, 19 October 2005, para. 51; Niyitegeka, TC, ICTR, 21 June
2000, para. 27; Barayagwiza, TC, ICTR, 11 April 2000, at 4; Nahimana, TC, ICTR, 5
November 2011, para. 18.
18
Boškoski and Tarčulovski, TC, ICTY, 10 May 2007, para. 4 (emphasis added). In this
case, the Defence sought an order from the TC to the OTP, inter alia, to stop the prosecution
from conducting further investigations.
19
With leave from the confirming judge (or a judge assigned by the president) where the
case has not yet been assigned to a TC or, where the case has been assigned, with leave
from that TC or a judge thereof. See Rule 50(A)(i)(b) and (c) ICTY RPE; At the ICTR and the
SCSL only with leave from the confirming judge (or a judge assigned by the president) prior
to the initial appearance and with leave of the TC from that moment. See Rule 50(A)(i) ICTR
RPE and Rule 50(A) SCSL RPE.
20
Boškoski and Tarčulovski, TC, ICTY, 10 May 2007, para. 4.
21
Rule 65ter(E)(ii) ICTY RPE juncto Rule 73bis(F) ICTY RPE allows for the amendment of
the witness list, also after the start of the trial. Consider e.g. Lukić and Lukić, TC, ICTY, 22
April 2008, para. 9. Also Rule 73bis(B)(iv) juncto Rule 73bis(E) ICTR and SCSL RPE allow
for the prosecutor to add new witnesses to the list after the commencement of the trial,
where such would be in the interests of justice.
Similarly, the Rule 65ter(E)(iii) exhibit list may be amended in the interests of justice. See
e.g. V. Popović et al., AC, ICTY, 14 December 2007, para. 37; Šešelj, TC, ICTY, 22 October
2010 (sep. op. of Judge Antonetti), para. 14; D. Milošević, TC, ICTY, 23 April 2007, at 3. Also
the ICTR has allowed for the amendment of the exhibit list under Rule 73bis(B)(v) after the
commencement of the trial. See e.g. Ndajambaje et al., TC, ICTR, 14 December 2001, para.
11 (entertaining the request under Rule 54 ICTR RPE).
22
See Nahimana and Barayagwiza, TC, ICTY, 26 June 2001, para. 20 (quoted with approval
in Norman et al., TC, SCSL, 29 July 2004, para. 16).
23
Delalić et al., AC, ICTY, 20 February 2001, para. 279; Prlić et al., TC, ICTY, 6 October
2010, para. 31; Prlić et al., TC, ICTY, 27 November 2008, para. 20; Hadžihasanović and
Kubura, TC, ICTY, 1 June 2005, para. 31; Brima et al., TC, SCSL, 28 September 2006, para.
17.
24
Rule 115 ICTY, ICTR, and SCSL RPE.
25
Nahimana et al., AC, ICTR, 12 January 2007, para. 5; Nahimana et al., AC, ICTR, 8
December 2006, para. 4; Erdemović, AC, ICTY, 7 October 1997, para. 15.
26
Nahimana et al., AC, ICTR, 20 June 2006, para. 4; Nahimana et al., AC, ICTR, 3 May
2005 (Decision on Appellant Hassan Ngeze’s Motion for the Approval of the Investigation at
the Appeal Stage), at 3.
27
See e.g. D. Tadić, AC, ICTY, 15 July 1999, para. 15.
28
See Nahimana et al., AC, ICTR, 3 May 2005 (Decision on Appellant Hassan Ngeze’s
Motion for the Approval of the Investigation at the Appeal Stage), at 3–4.
29
Niyitegeka, TC, ICTR, 21 June 2000, para. 27; Barayagwiza, TC, ICTR, 11 April 2000, at
4; Nahimana et al., TC, ICTR, 5 November 1999, para. 18; Ndayambaje et al., TC, ICTR, 2
September 1999, para. 7; Kanyabashi, TC, ICTR, 12 August 1999, para. 24; Musema, TC,
ICTR, 6 May 1999, para. 17.
30
31
See G. McIntyre, ‘Defining Human Rights in the Arena of International Humanitarian
Law: Human Rights in the Jurisprudence of the ICTY’, in G. Boas and W.A. Schabas (eds),
International Criminal Law Developments in the Case Law of the ICTY (Leiden: Martinus
Nijhoff Publishers, 2003) 193–238.
32
Milutinović et al., AC, ICTY, 13 November 2003 (diss. op. of Judge Hunt), para. 39.
33
34
Part IV ICTY, ICTR, and SCSL RPE deals with ‘Investigations and Rights of Suspects’.
Thereof, the first subsection deals with ‘investigations’ (Rule 39–43), while the second
subsection deals with defence counsel.
35
This power is provided for in Rule 39(ii) ICTY and ICTR RPE, but the formulation differs
slightly.
36
Art. 18(2) ICTY Statute; Art. 17(2) ICTR Statute; Art. 15(2) SCSL Statute; Rule 39(i)
ICTY, ICTR, and SCSL RPE.
37
D. Tadić, AC, ICTY, 15 July 1999, para. 51.
38
D. Tadić (n 37) para. 52. Noting that the principle should not be equated with the
adversarial principle, see J.T. Tuinstra, Defense Counsel in International Criminal Law (The
Hague: T.M.C Asser Press, 2009) 190; A. Eser, ‘Procedural Structure and Features of
International Criminal Justice: Lessons from the ICTY’, in B. Swart et al. (eds), The Legacy
of the International Criminal Tribunal for the Former Yugoslavia (Oxford: Oxford University
Press, 2011) 133.
39
D. Tadić, AC, ICTY, 15 July 1999, para. 52.
40
D. Tadić (n 39) para. 52. Measures at the TC’s disposal include the power to: (1) adopt
witness protection measures, ranging from partial to full protection; (2) take evidence by
video-link or by way of deposition; (3) summon witnesses and order their attendance; (4)
issue binding orders to states for, inter alia, the taking and production of evidence; (5) issue
binding orders to states to assist a party or to summon a witness and order his or her
attendance under the Rules; (6) for the President of the Tribunal to send, at the instance of
the TC, a request to the state authorities in question for their assistance in securing the
attendance of a witness; and (7) whenever the aforementioned measures have proved to be
to no avail, a Chamber may, upon the request of a party or proprio motu: order that
proceedings be adjourned or, if the circumstances so require, that they be stayed.
41
On this issue, see section 3.2 A(ii)(d) and (iii)(d).
42
Rule 101(B) ICTY RPE, ICTR RPE, and SCSL RPE.
43
Rule 77(C)(i) ICTY and ICTR RPE.
44
Art. 54(1)(a) ICC Statute.
45
Kupreškić et al., TC, ICTY, 21 September 1998, at 3.
46
Zappalà (n 9) 41 (‘Nonetheless, until the adoption of the norms provided for by the ICC
Statute no appropriate legal framework supported this aspiration.’); M. Fairlie, ‘The
Marriage of Common and Continental Law at the ICTY and Its Progeny, Due Process
Deficit’ (2004) 4 International Criminal Law Review 243, 314–15 (noting that such
consideration by the TC was only obiter dicta and disregards the procedural design of the
prosecutor’s responsibilities). S. Vasiliev, ‘The Role and Legal Status of the Prosecutor in
International Criminal Trials’, 25 November 2010, 16 <http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1715465> (last visited, 5 January 2011), noting that: ‘This obiter
dictum may neatly express a normative sentiment among the judges but it amounts to a
“wishful thinking” at best inasmuch as it requires the Prosecutors to do more than they
actually can and may deliver in the context of the adversarial trial proceedings’; G. Boas at
al., International Criminal Law Practitioner Library, Vol. III: International Criminal
Procedure (Cambridge: Cambridge University Press, 2011) 106.
47
Rule 68 ICTY and ICTR RPE; Rule 68(B) SCSL RPE.
48
Consider in that regard the wording of Kupreškić, which states that the prosecutor ‘is
not, or not only, a party to adversarial proceedings’ (emphasis added). See Kupreškić et al.,
TC, ICTY, 21 September 1998, para. 3. For a confirming view, see M. Harmon and M.
Karagiannakis, ‘The Disclosure of Exculpatory Material by the Prosecution to the Defence
under Rule 68 of the ICTY Rules’, in R. May et al. (eds), Essays on ICTY Procedure and
Evidence in honour of Gabrielle Kirk McDonald (The Hague: Kluwer Law International,
2001) 321.
49
Barayagwiza, AC, ICTR, 31 March 2000 (sep. op. of Judge Shahabuddeen), paras 67–68;
S. Milošević, AC, ICTY, 30 September 2002 (diss. op. of Judge Shahabuddeen), para. 18.
50
S. Milošević, AC, ICTY, 30 September 2002 (diss. op. of Judge Shahabuddeen), para. 18.
51
Prosecutor’s Regulation No. 2 of 1999, Standards of Professional Conduct—Prosecution
Counsel.
52
Arts 1, 2(a) and (c) Prosecutor’s Regulation No. 2. Confirming, see F. Mégret,
‘International Prosecutors: Accountability and Ethics’, Working Paper No. 18, December
2008, at 45.
53
Art. 2(h) Prosecutor’s Regulation No. 2.
54
See e.g. Blaškić, AC, ICTY, 26 September 2000, para. 32 (referring to the status of the
prosecutor and the prosecution staff as ministers of justice assisting in the administration of
justice while also reiterating that the prosecution is under a legal obligation to continually
disclose exculpatory evidence under Rule 68); Kordić and Čerkez, AC, ICTY, 11 May 2001,
para. 14 (also referring to the role of the prosecutor as a ‘minister of justice’ in the context
of its obligations under Rule 68); Ndindiliyimana et al., TC, ICTR, 22 September 2008, at 22
(reprimanding the prosecutor for its lack of diligence in disclosing exculpatory material and
reminding the prosecution of its responsibility as ministers of justice to assist the Chamber
discover the truth about the allegations in the indictment).
55
J. Jackson, ‘Finding the Best Epistemic Fit for International Criminal Tribunals’ (2009) 7
JICJ 17, 25.
56
Rule 68 SCSL RPE.
57
Sesay, President, SCSL, 20 February 2006, para. 30 (citing the sep. op. of Judge
Shahabuddeen to the Barayagwiza decision with approval).
58
SCSL, Code of Professional Conduct for Counsel with the Right to Audience before the
Special Court of Sierra Leone, as adopted on 14 May 2005 and amended on 13 May 2006
(pursuant to Rule 46(G) SCSL RPE). Contrary to what the title of this Code of Conduct may
suggest, Art. 2 clarifies that the Code does not solely apply to counsel that appear or have
appeared before the Court, but also to people that act or have acted on behalf of the
prosecutor, the defence, witnesses, or any other person before the Court. See Vasiliev (n 46)
17.
59
Art. 24(B) Code of Professional Conduct for Counsel with the Right to Audience before
the Special Court of Sierra Leone.
60
Art. 54(1)(a) ICC Statute.
61
Barayagwiza, AC, ICTR, 3 November 1999, paras 91–92; Kajelijeli, AC, ICTR, 23 May
2005, para. 220. Both cases concerned the responsibilities of the prosecutor regarding the
detention of a suspect, prior to his or her transfer to the Tribunal.
62
Barayagwiza, AC, ICTR, 3 November 1999, para. 91. The Appeals Chamber emphasized
that the ultimate responsibility to bring a defendant to trial rests with the prosecutor. In
that regard, the prosecutor can be likened to the ‘engine’ driving the work of the tribunal.
63
Oxford English Dictionary, 2nd edn (Oxford: Clarendon Press, 1989). According to
Black’s Law Dictionary, it refers to the ‘diligence reasonably expected from, and ordinarily
exercised by, a person who seeks to satisfy a legal requirement or to discharge an
obligation’. See Black’s Law Dictionary, 8th edn (St Paul, MN: West Group, 2004) 488.
64
Mégret (n 52) 51.
65
Furundžija, TC, ICTY, 5 June 1998, para. 6.
66
Furundžija (n 65) para. 6.
67
Furundžija (n 65) para. 5.
68
Mégret (n 52) 55.
69
Art. 2(d) Prosecutor’s Regulation No. 2 of 1999, Standards of Professional Conduct—
Prosecution Counsel.
70
Such an obligation of due diligence is explicitly provided for under Rule 119(A) ICTY
RPE and Rule 120(A) ICTR RPE (on new facts) and not in Rule 120 SCSL RPE. Rule 115
ICTY, ICTR, and SCSL RPE (on new evidence) does not explicitly call for a showing of due
diligence. Nonetheless, it has already been shown that the case law requires a showing of
due diligence. See section 2 A(ii)(b). Consider e.g. D. Tadić, AC, ICTY, 15 July 1999, para.
15.
71
M. Karnavas, ‘Gathering Evidence in International Criminal Trials—The View of the
Defence Lawyer’, in M. Bohlander (ed.), International Criminal Justice: A Critical Analysis of
Institutions and Procedures (London: Cameron May, 2007) 126.
72
In addition to the references cited in n 23, consider V. Popović et al., AC, ICTY, 9 May
2008, para. 23; S. Milošević, TC, ICTY, 13 December 2005, para. 25. On the reopening of
the defence case, see e.g. Prlić et al., TC, ICTY, 23 November 2010, para. 12 and 17; Prlić et
al., TC, ICTY, 24 November 2010, para. 15; Prlić et al. TC, ICTY, 25 November 2010, para.
15.
73
Delalić et al., AC, ICTY, 20 February 2001, para. 283 (emphasis added).
74
S. Milošević, TC, ICTY, 13 December 2005, para. 25.
75
S. Milošević (n 74) para. 25.
76
See e.g. Aleksovski, AC, ICTY, 16 February 1999, para. 25; Bagosora et al., AC, ICTR, 6
October 2005, para. 44; Ndindiliyimana et al., TC, ICTR, 22 September 2008, at 22.
77
Karemera et al., AC, ICTR, 30 June 2006, para. 6 as reiterated in Karemera et al., TC,
ICTR, 19 October 2006, para. 11; Stakić, TC, ICTY, 25 November 2002 (transcript), at 9437.
78
Art. 2(a) and (h) Prosecutor’s Regulation No. 2.
79
Art. 14(1) ICC Statute.
80
Art. 53(1) ICC Statute; Rule 48 ICC RPE. The term ‘preliminary examination’ appears in
Art. 15(6), while Art. 42(1) states that the prosecutor is responsible for ‘examining’
information on crimes and for conducting investigations and prosecutions.
81
Several commissions of inquiry to investigate serious violations of human rights and
international humanitarian law have been established. See e.g. the Final Report of the
Commission of Experts Established Pursuant to Security Council Resolution 780 to
Investigate Violations of International Humanitarian Law in the Former Yugoslavia, UN Doc.
S/1994/674, 27 May 1994; Final report of the Commission of Experts established pursuant
to Security Council Resolution 935 (Rwanda), UN Doc. S/1994/1405, 9 December 1994;
Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General pursuant to Security Council Resolution 1564 of 18 September 2004, 25
January 2005; United Nations International Independent Investigation Commission
(‘UNIIIC’), established pursuant to UNSC Res. 1595 (2005). See further the historic United
Nations War Crimes Commission (‘UNWCC’) established in the aftermath of World War II.
82
Regulation 25 ICC Regulations of the Prosecutor. According to the regulation, the propio
motu powers have been interpreted by the Prosecutor’s Office beyond the passive receipt of
information, meaning it does not have to await the transmission of information by an
external source before examining a matter.
83
Art. 15(3) ICC Statute. Nonetheless, the substantive factors that must be considered by
the prosecutor to support this determination are the same, namely those factors listed in
Art. 53(1)(a)–(c); Art. 53(1)(a)–(c) juncto Rule 48, see later.
84
A Security Council referral in relation to a situation concerning a state not party to the
Statute does not require the lodging of an Art. 12(3) declaration by that state, since it will
rest on the Security Council’s powers under Chapter VII of the UN Charter.
85
Situation in the Republic of Kenya, PTC, ICC, 31 March 2010, para. 35.
86
Situation in the Republic of Kenya (n 85) para. 32. See further Situation in the Republic
of Côte d’Ivoire, PTC, ICC, 3 October 2011, para. 24.
87
Situation in the Republic of Kenya, PTC, ICC, 31 March 2010, para. 34.
88
Katanga and Ngudjolo, TC, ICC, 25 September 2009, para. 56.
89
Katanga and Ngudjolo (n 88) para. 56; Kony et al., AC, ICC, 16 September 2009, para.
85. See further Art. 19(10) ICC Statute.
90
The concept of a case has been defined in Lubanga as including ‘specific incidents
during which one or more crimes within the jurisdiction of the Court seem to have been
committed by one or more identified suspects’, and that admissibility requires an
examination of ‘both the person and the conduct which is the subject of the case before the
Court’; Lubanga, PTC, ICC, 10 February 2006, paras 21, 31, and 38, incorporated into the
record by Lubanga, PTC, ICC, 24 February 2006.
91
Whereas Art. 53(1)(b) refers to ‘cases’, PTC II has held that a contextual interpretation
entails that the admissibility assessment at this stage is in principle related to ‘a situation’
and refers to one or more potential cases within that situation. See Situation in the Republic
of Kenya, PTC, ICC, 31 March 2010, paras 45 and 48. See further R. Rastan, ‘What is a
“Case” for the Purpose of the Rome Statute?’ (2008) 19 Criminal Law Forum 435, 441–2.
92
Situation in the Republic of Kenya, PTC, ICC, 26 November 2009, paras 51 and 107;
Situation in the Republic of Kenya, PTC, ICC, 31 March 2010, paras 50, 182, and 188.
93
Situation in the Republic of Kenya, PTC, ICC, 31 March 2010, para. 50. PTC III in
relation to Côte d’Ivoire has also held, more generally, that any of the findings at the Art. 15
stage are without prejudice to later submission to, or finding by, the Chamber in the context
of a different stage of the proceedings and in accordance with the evidential standard
applicable at that stage of the proceedings; Situation in the Republic of Côte d’Ivoire, PTC,
ICC, 3 October 2011, para. 25.
94
See Policy Paper on the Interests of Justice, OTP, ICC, September 2007; Policy Paper on
the Preliminary Examinations, OTP, ICC, October 2010, para. 73: ‘Under article 53(1), while
the jurisdiction and admissibility are positive requirements that must be satisfied, the
interests of justice is a potential countervailing consideration that may produce a reason
not to proceed. As such, the Prosecutor is not required to establish that an investigation is
in the interests of justice. Rather, the Office will proceed unless there are specific
circumstances that provide substantial reasons to believe it is not in the interests of justice
to do so at that time. In doing so, the Office will also consider the interests of victims. At the
same time, the interests of justice should not be conceived of so broadly as to embrace all
issues related to peace and security. Accordingly, in the light of the mandate of the Office
and the object and purposes of the Statute, there is a very strong presumption that
investigation and prosecution will be in the interests of justice, and a decision not to
proceed on the grounds of the interests of justice would be highly exceptional.’
95
96
97
Art. 42(1)–(2) ICC Statute.
98
Arts 14(1), 42(1), 54(1)(a), and 58 ICC Statute. The AC has stated: ‘The domain and
powers of the Prosecutor are outlined in article 42 of the Statute, paragraph 1 … .
Manifestly, authority for the conduct of investigations vests in the Prosecutor … an
investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into
the commission of a crime with a view to bringing to justice those deemed responsible’;
Situation in the DRC, AC, ICC, 19 December 2008, paras 45 and 52.
99
As Art. 14(1) ICC Statute provides, a referral to the prosecutor of a situation forms a
request that the prosecutor ‘investigate the situation for the purpose of determining
whether one or more specific persons should be charged with the commission of such
crimes’.
100
Art. 53(2) ICC Statute. See further Chapter 4.
101
See Lubanga, AC, ICC, 21 October 2008 (ICC-01/04-01/06-1486), para. 41 (‘It follows
from article 54(1) of the Statute that the investigatory activities of the Prosecutor must be
directed towards the identification of evidence that can eventually be presented in open
court, in order to establish the truth and to assess whether there is criminal responsibility
under the Statute.’). As a consequence, exceptions to the disclosure of evidence must be
strictly construed. Hence, Art. 54(3)(e) ICC Statute (on documents or information obtained
on condition of confidentiality) must be relied upon ‘solely for the purpose of generating
new evidence’.
102
Art. 78 ICC Statute and Rule 145 ICC RPE.
103
Lubanga, TC, ICC, 14 March 2012 (ICC-01/04-01/06-2842), paras 630–631.
104
Art. 93(1)(k) ICC Statute.
105
Art. 75 ICC Statute.
106
107
Arts 14(1), 42(1), 54(1)(a), and 58 ICC Statute.
108
Situation in Darfur, PTC, ICC, 4 February 2009, para. 12. See further Bemba, PTC, ICC,
17 July 2009, para. 10: ‘the issue of selection of cases by the Prosecutor and that of his
prosecutorial policy … are not dealt with by the Chamber’.
109
See section 2 A(iii)(b.3).
110
Arts 19, 58, and 61 ICC Statute.
111
Policy Paper on the Interests of Justice, OTP, ICC, 2003; Report on Prosecutorial
Strategy, OTP, ICC, 14 September 2006; Regulation 34 ICC Regulations of the Prosecutor.
See further Chapter 2.
112
Regulation 34(2) ICC Regulations of the Prosecutor.
113
114
Arts 67 and 77 ICC Statute.
115
Rule 27 ICC RPE.
116
Art. 60 (3) ICC Statute.
117
Rule 79 ICC RPE.
118
Rule 82(5) ICC RPE.
119
Rule 176 ICC RPE.
120
Code of Professional Conduct for Counsel, ICC, 2 December 2005, Third Plenary
Meeting, The Hague, ICC-ASP/4/Res.1.
121
122
Arts 54(2)(b) and 57(3)(d) ICC Statute and Rule 155 ICC RPE.
123
124
Art. 56(2) ICC Statute. See, in particular, Art. 56(2)(f) ICC Statute: ‘Taking such other
action as may be necessary to collect or preserve evidence.’
125
Situation in the DRC, PTC, ICC, 26 April 2005, at 3.
126
M. Miraglia, ‘The First Decision of the ICC Pre-Trial Chamber’ (2006) 4 JICJ 188, 191.
127
F. Guariglia et al., ‘Article 57: Functions and Powers of the Pre-Trial Chamber’, in
Triffterer (ed.), Commentary on the Rome Statute 1126.
128
Situation in the DRC, PTC, ICC, 17 February 2005, at 2.
129
Rule 121 and Rule 132 ICC RPE respectively.
130
Miraglia (n 126) 192–3.
131
Miraglia (n 126) 193; see further D. Scheffer, ‘A Review of the Experience of the Pre-
Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure
of Evidence’ (2008) 21 Leiden Journal of International Law 151, 158, who remarks that:
‘Despite the logic that might underpin such an evaluation, it remains a huge leap for PTC I
to intervene in the Prosecutor’s discretionary power as the investigator of a situation and
determine, from the Judge’s relatively detached vantage point, that the investigation should
be intensified or accelerated or broadened.’
132
Situation in the CAR, PTC, ICC, 30 November 2006, at 5. The PTC based its decision on
Regulation 46(2).
133
Scheffer (n 131) 158. See further Situation in Côte d’Ivoire, TC, ICC, 3 October 2011
(diss. op. of Judge Fernandez Gurmendi), paras 19–20.
134
Scheffer (n 131). Scheffer remarks that the line between prudent oversight and activist
interventionism has yet to be fully drawn ‘but that the Pre-Trial Chamber started drawing it
in its decision of 17 February 2005’.
135
Art. 54(1) ICC Statute. Some authors refer in this regard to a ‘principle of objectivity’,
see R. Cryer et al., An Introduction to International Criminal Law and Procedure
(Cambridge: Cambridge University Press, 2007) 367.
136
137
Lubanga, AC, ICC, 11 July 2008 (ICC-01/04-01/06-1432), para. 36.
138
139
140
Regulation 24 ICC Regulations of the Prosecutor.
141
Regulation 10 ICC Draft Regulations of the Office of the Prosecutor. However, a
footnote added that ‘parties to proceedings cannot derive rights from this ethical obligation
to investigate exonerating and incriminating circumstances equally’.
142
C. Kreß, ‘The Procedural Law of the International Criminal Court in Outline: Anatomy
of a Unique Compromise’ (2003) 1 JICJ 603, 608. See further Miraglia (n 126) 194 (arguing
that the prosecutor is an organ of justice and not a super partes organ).
143
Consider e.g. M. Damaška, ‘Problematic Features of International Criminal Procedure’,
in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford
University Press, 2009) 176. Arguing that where two cases exist at the pre-trial and trial
stage, notwithstanding the requirement that prosecutors adopt non-partisan attitudes, ‘it
becomes difficult for them to refrain from using their evidence selectively, focusing only on
information favourable to their allegations’; A. Zahar and G. Sluiter, International Criminal
Law: A Critical Introduction (Oxford: Oxford University Press, 2008) 374. The authors are
critical about the effective realization of such an impartial role in an adversarial model; K.
Ambos, ‘Confidential Investigations (Article 54(3)(e) ICC Statute) vs. Disclosure Obligations,
the Lubanga Case and National Law’ (2009) 12 New Criminal Law Review 543, 566–7.
Noting the tension between the two roles of the prosecution, on the one hand to vigorously
pursue criminal conduct and to gather incriminating facts, and on the other hand to act as
an objective investigation organ that also has to take into consideration the interests of
defendants and to look for exonerating evidence.
144
See Mbarushimana, PTC, ICC, 16 December 2011, para. 51. The prosecution
unsuccessfully sought leave to appeal on this particular issue; Mbarushimana, PTC, ICC, 1
March 2012, paras 28–33.
145
146
See, in particular, Art. 55 ICC Statute.
147
Arts 54(1)(b) and 68 ICC Statute. See further Chapters 5 and 10.
148
C. Staker, ‘Article 84: Revision of Conviction or Sentence’, in Triffterer (ed.),
Commentary on the Rome Statute 1493.
149
Regulation 17 ICC Regulations of the Prosecutor.
150
151
Regulation 30 Regulations of the Office of the Prosecutor.
152
Art. 15(2) ICC Statute and Rule 104 (2) ICC RPE. See further section 3.1.2 A(iii)(c).
153
Rule 47(1) ICC RPE, referring to the mutatis mutandis application of Rules 111 and
112.
154
An investigation may also end with a decision not to proceed to a prosecution due to a
lack of sufficient basis; see Art 53(2) ICC Statute.
155
Lubanga, AC, ICC, 13 October 2006, paras 49 and 50.
156
Lubanga (n 155) paras 49 and 50.
157
Lubanga (n 155) para. 51.
158
Mbarushimana, AC, ICC, 30 May 2012, para 44; Lubanga, AC, ICC, 13 October 2006,
para 54.
159
Section 1(n) TRCP.
160
Section 13.1 TRCP.
161
Section 13.1 TRCP.
162
Section 24.4 TRCP.
163
Section 3.1 UNTAET Regulation 2000/16.
164
Section 7.1 TRCP.
165
Section 7.4 TRCP. According to Section 7.3 TRCP, the public prosecutor ‘shall have all
appropriate means to ensure the effective investigation and prosecution of crimes’.
166
Section 7.5 TRCP.
167
Section 4.2 UNTAET Regulation 2000/16.
168
Section 7.3 TRCP.
169
Section 7.6 TRCP.
170
See section 3.2 A(iv)(b). The role of the investigating judge was not clearly defined in
the TRCP and the function did not exist in the Indonesian criminal justice system. See C.
Reiger and M. Wierda, ‘The Serious Crimes Process in Timor-Leste: In Retrospect’,
International Center for Transitional Justice, March 2006, at 25; S. Linton, ‘Rising from the
Ashes: The Creation of a Viable Justice System in East Timor’ (2001) 25 Melbourne
University Law Review 122, 139–40.
171
For a confirming view, see e.g. Judicial System Monitoring Programme, ‘Digest of the
Jurisprudence of the Special Panels for Serious Crimes’, April 2007, at 36: ‘in the practice of
the SPSC the defence had no opportunity or resources to conduct independent professional
investigations’.
172
Section 6.3(e) TRCP.
173
K. Kerr, ‘Fair Trials at International Tribunals, Examining the Parameters of the
International Right to Counsel’ (2005) 36 Georgetown Journal of International Law 1227,
1250.
174
D. Cohen, ‘Indifference and Accountability: The United Nations and the Politics of
Justice in East-Timor’ (2006) 9 East-West Center Special Reports 16.
175
See e.g. G. MacCarrick, ‘The Right to a Fair Trial in International Criminal Law (Rules
of Procedure and Evidence in Transition from Nuremberg to East Timor)’, Conference
Paper, 19th International Conference of the International Society for the Reform of Criminal
Law, Edinburgh, 26–30 June 2005, available at <http://www.isrcl.org/Papers/2005/
MacCarrick.pdf> (last visited 17 January 2011) at 45; D. Cohen, ‘Justice on the Cheap
Revisited: The Failure of the Serious Crimes Trials in East Timor’, Asia Pacific Issues, No.
80, East-West Center, May 2006, at 3–5; Simmons et al., ‘Mixed Tribunals’, in M. Bohlander
et al. (eds), Defence in International Criminal Proceedings: Cases, Materials and
Commentary (Ardsley, NY: Transnational Publishers, 2006) 704; S. Linton, ‘Cambodia, East
Timor and Sierra Leone: Experiments in International Criminal Justice’ (2001) 12 Criminal
Law Forum 185, 203; S. De Bertodano, ‘East Timor: Trials and Tribulations’, in C.P.R.
Romano et al. (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo
and Cambodia (Oxford: Oxford University Press, 2004) 86.
176
See e.g. Reiger and Wierda (n 170) 26–8, and Cohen (n 174) 38. See further Chapter 9.
177
Reiger and Wierda (n 170) 27.
178
Section 132(3) of the Constitution of East-Timor (2002) (‘In performing their duties,
Public Prosecutors shall be subject to legality, objectivity and impartiality criteria, and
obedience toward directives and orders as established by law’). According to Section 4.1
UNTAET Regulation 2000/16, public prosecutors shall perform their function impartially.
They should ‘act without bias and prejudice and in accordance with their impartial
assessment of the facts and their understanding of the applicable law in East Timor, without
improper influence, direct and indirect, from any source, whether within or outside the civil
administration of East Timor’. (Section 4.2 UNTAET Regulation 2000/16).
179
Section 7.2 TRCP.
180
Section 41.2 TRCP.
181
Rule 49(1) ECCC IR.
182
Rule 49(2) ECCC IR; Art. 23 new ECCC Law (the OCIJ may obtain information from any
institution, including the government, UN organs, or non-governmental organizations).
183
Rule 49(3) ECCC IR.
184
Rule 49(5) ECCC IR. The complainant should be informed of such decision within 30
days.
185
Rule 50(1) ECCC IR.
186
Rule 53(1) ECCC IR.
187
Rule 55(1) ECCC IR.
188
Rule 55(4) ECCC IR.
189
Rule 66(1) ECCC IR. The parties have 15 days to request further investigative actions
(such time limitation seemingly derives from Art. 246 of the Cambodian Code of Criminal
Procedure). However, in Case 002, the co-investigating judges recognized the validity of
requests that were filed late, as long as they were filed within 30 days after the notification
of the parties; see Nuon Chea et al., OCIJ, ECCC, 25 November 2009, para. 16. More
generally, it may be doubted whether the 15-day period is reasonable, especially where no
time limitation is provided for the co-investigating judges to reply to requests for
investigative actions, filed by the parties pursuant to Rule 55 (10) IR (it follows from Rule
66(2) IR that where the co-investigating judges decide to reject a request for further
investigative action, such order ‘shall also reject any remaining requests, filed earlier in the
investigation, which had not yet been ruled upon by the Co-Investigating Judges’). Further,
it may be doubted whether a 15-day period is adequate in the light of the magnitude of the
investigations conducted before the ECCC. Consider the similar argumentation by the
Defence of Nuon Chea: Nuon Chea et al., OCIJ, ECCC, 5 November 2009, para. 45.
190
Rule 66(5) and 67(1) ECCC IR.
191
Rule 70 ECCC IR. In this regard, consider further Arts 251 and 265 Criminal Code
(Cambodia).
192
Rule 93 ECCC IR.
193
These investigative acts may be delegated to the judicial police upon the issuance of a
rogatory letter, see Rule 93(3) ECCC IR.
194
See section 2 A(ii)(b).
195
Rules 50(2)–(4) and 51 ECCC IR.
196
Rules 50(2) and 15(2) ECCC IR.
197
Art. 23 new ECCC Law; Rule 55(5) ECCC IR.
198
Rule 63 ECCC IR; see section 4.2 A(v).
199
See the inter-office memorandum issued by the Co-Investigating Judges on 10 January
2008 as referred to in Nuon Chea et al., OCIJ, ECCC, 25 February 2010, para. 8; Nuon Chea
et al., PTC, ECCC, 15 June 2010 (Decision on Co-Prosecutor’s Appeal Against the Co-
Investigating Judges Order on Request to Place Additional Evidentiary Material on the Case
File which Assists in Proving the Charged Person’s Knowledge of the Crimes), para. 11.
200
Khieu Samphan, PTC, ECCC, 18 November 2009, para. 44; Nuon Chea et al., PTC,
ECCC, 7 July 2010, paras 21–22.
201
Khieu Samphan (n 200) para. 22.
202
Khieu Samphan (n 200) para. 22. The broad discretion of the co-investigating judges is
coupled with an obligation under Rule 55(10) ECCC IR to set out the reasons, where they
issue a rejection order.
203
Nuon Chea et al., OCIJ, ECCC, 25 February 2010, para. 8.
204
Nuon Chea et al., PTC, ECCC, 15 June 2010 (Decision on Co-Prosecutors’ Appeal
Against the Co-Investigating Judges Order on Request to Place Additional Evidentiary
Material on the Case File which Assists in Proving the Charged Person’s Knowledge of the
Crimes), para. 12 (in casu, the PTC found that the action by the co-prosecutors ‘amounted
to the request for admission of documents which had been the subject of identification as a
result of permissible enquiries of public sources and not investigation’).
205
Art. 262 Cambodian Code of Criminal Procedure.
206
Rule 55(10) and Rule 73 juncto Rule 74(3)(b) ECCC IR.
207
Khieu Samphan, PTC, ECCC, 18 November 2009, para. 25 (where the decisions on
requests for investigative action are discretionary, involving questions of fact, the PTC
considered that the co-investigating judges ‘are in the best position to assess the
opportunity of conducting a requested investigative action in light of their overall duties
and their familiarity with the case files’. The PTC added that ‘it would be inappropriate for
the Pre-Trial Chamber to substitute the exercise of its discretion for that of the Co-
Investigating Judges when deciding on an appeal against an order refusing a request for
investigative action’. What is missing in this reasoning is a clarification of why the Internal
Rules would set aside this power provided for under the Code of Criminal Procedure. The
reference to the fact that ‘the Appeals Chambers of international tribunals have a very
limited scope of review when dealing with appeals against discretionary decisions of a first
instance decision’ is strictly speaking irrelevant).
208
Khieu Samphan (n 207) para. 26.
209
It follows from Art. 19(2) ECCC Law that the co-prosecutors should be ‘independent’
and not seek or receive instructions from governments or other sources. However, no
reference is made to a requirement of impartiality. Consider further Art. 6 ECCC
Agreement.
210
Rule 53(4) ECCC IR.
211
Art. 18 new ECCC Law; Art. 6(5) ECCC Agreement.
212
Art. 5(2) and (3) ECCC Agreement states that: ‘The co-investigating judges shall be
persons of high moral character, impartiality and integrity who possess the qualifications
required in their respective countries for appointment to such a judicial office.’ Consider
further Art. 25 ECCC Law according to which co-investigating judges should have ‘a spirit
of impartiality’ and should be independent and Art. 2 ECCC Code of Judicial Ethics,
according to which ‘Judges shall be impartial and ensure the appearance of impartiality in
the discharge of their judicial functions’.
213
Rule 55(5) ECCC IR.
214
It may be noted that a considerable amount of litigation concerns the alleged partiality
of the co-investigating judges or of members of the OCIJ. Consider e.g. Nuon Chea et al.,
PTC, ECCC, 15 June 2010 (Ieng Sary—Decision on Ieng Sary’s and on Ieng Thirith’s
Application under Rule 34 to Disqualify Judge Marcel Lemonde); Nuon Chea et al., PTC,
ECCC, 29 March 2010; Nuon Chea et al., PTC, ECCC, 23 March 2010. However, these
claims were never upheld by the PTC.
215
Khieu Samphan, PTC, ECCC, 18 November 2009, para. 37 (emphasis added). The co-
investigating judges reasoned that where it is an impossible task to conduct an exhaustive
search for all evidence: ‘The logic underpinning a criminal investigation is that the principle
of sufficiency of evidence outweighs that of the exhaustiveness.’
216
Rule 66(1) and 67 ECCC IR.
217
Khieu Samphan, PTC, ECCC, 18 November 2009, para. 38.
218
Art. 5 ECCC Code of Judicial Ethics.
219
Consider e.g. Nuon Chea et al., PTC, ECCC, 4 May 2009, para. 44; IengSary, PTC,
ECCC, 26 June 2009, para. 38.
220
Rule 112(1)(a) ECCC IR.
221
See section 2 A(iii)(d).
222
Art. 4 Code of Criminal Procedure (Cambodia).
223
According to Rule 2 STL RPE, the investigation encompasses: ‘[a]ll activities
undertaken by the Prosecutor under the Statute and the Rules for the collection of
information and evidence, whether before or after an indictment is confirmed’.
224
See section 2 A(ii)(a).
225
Art. 18 STL Statute and Rule 68 STL RPE.
226
Rule 71 STL RPE.
227
Rule 190 STL RPE.
228
Art. 11(1) STL Statute.
229
230
The UNIIIC was established pursuant to SC Res. 1595, with the mandate ‘to assist the
Lebanese authorities in their investigation of all aspects of this terrorist act, including to
help identify its perpetrators, sponsors, organizers and accomplices’. See UNSC Res. 1595
(2005), para. 1. According to Art. 19(2) STL Agreement, the Special Tribunal ‘shall
commence functioning on a date to be determined by the Secretary-General in consultation
with the Government, taking into account the progress of the work of the International
Independent Investigation Commission’.
231
Art. 17(a) STL Agreement.
232
Consider further Rule 17(A)(ii) STL RPE.
233
234
Rule 17(E) and (F) STL RPE.
235
OTP, STL, 25 March 2009 (Application by the Prosecutor to the Pre-Trial Judge under
Article 4(2) of the Statute and Rule 17 of the Rules of Procedure and Evidence).
236
As far as evidence collected by the UNIIIC is concerned, it should be noted that UNSC
Res. 1595 had directed the Commission ‘to determine the procedures for its investigation,
taking into account the Lebanese law and judicial procedures’. See UNSC Res. 1595 (2005),
para. 6. Consider further: Fourth report of the International Independent Investigation
Commission established pursuant to Security Council Resolutions 1595 (2005), 1636 (2005)
and 1644 (2005), UN Doc. S/2006/375, 10 June 2006, para. 7 (‘During the reporting period,
the Commission has also determined its own set of internal procedures, as provided in
paragraph 6 of Security Council Resolution 1595 (2005). It facilitates further
standardization of the investigative work of the Commission and ensures due respect for
applicable legal and professional standards. The procedure has, for example, standardized
the conduct of interviews of witnesses and suspects, taking into account Lebanese law and
relevant international standards, including international criminal procedure, so as to
prepare for future legal proceedings before a tribunal, possibly of an international
character’).
237
Rule 11 STL RPE. The ruling by the Pre-Trial Judge is appealable (Rule 11 (D)–(F) STL
RPE). According to Art. 1 STL Statute, to fall within the jurisdiction of the tribunal, such
attacks should (a) be ‘connected’ with the attack of 14 February 2005 and (b) be of similar
nature and gravity.
238
Rule 12 STL RPE. For these attacks, the tribunal’s jurisdiction is dependent on the
consent of the Security Council and of the government of Lebanon.
239
Art. 11(5) STL Statute and Rule 61(i) STL RPE.
240
Rule 61(ii) STL RPE.
241
Rule 61(iii) and (iv) STL RPE.
242
243
Rule 15 STL RPE.
244
Rule 77(A) STL RPE and Rule 78(B) STL RPE (summonses to appear).
245
Rule 89(I), Rule 92(A), and Rule 92(C) STL RPE respectively. The decision of the Pre-
Trial Judge to proprio motu gather evidence is appealable as of right.
246
Rule 93 STL RPE. See the analysis of this investigative function in section 3.1.2 A(iv)(a).
247
Rule 86(A) juncto Art. 17 STL Statute. Further proof may be found in references to the
gathering of evidence by victims, e.g. in Rule 92, Rule 93, or Rule 123 STL RPE.
Concurring, see J. De Hemptinne, ‘Challenges Raised by Victim Participation in the
Proceedings of the Special Court for Lebanon’ (2010) 8 JICJ 165, 172, note 35.
248
This follows from the right of the victims to call witnesses and tender evidence at trial
(Rule 87(B) STL RPE).
249
PTJ, STL, 29 April 2009 (Order Regarding the Detention of Persons Detained in
Lebanon in Connection with the Case of the Attack against Prime Minister Rafiq Hariri and
Others), para. 25.
250
Rule 113(A) STL RPE.
251
Rule 186(C) STL RPE.
252
Rule 190(A) STL RPE.
253
S.J. Summers, Fair Trials: the European Criminal Procedural Tradition and the
European Court of Human Rights (Oxford: Hart, 2007) 99.
254
According to Art. 6(1) ECHR, everyone is entitled to a hearing ‘by an independent and
impartial tribunal established by law’. See further Art. 14(1) ICCPR; Art. 8(1) ACHR; Art. 10
UDHR, and Art. 7(1) ACHPR.
255
For an example where the applicant was successful in demonstrating personal bias, see
Kyprianou v. Cyprus, ECtHR, 15 December 2005, para. 130.
256
Piersack v. Belgium, ECtHR, 1 October 1982.
257
Consider Art. 16(2) ICTY Statute; Art. 15(2) ICTR Statute; Art. 15(1) SCSL Statute; Art.
42(1) ICC Statute; Rule 13(1) ECCC IR; Art. 11(2) STL Statute; Section 5 UNTAET
Regulation 2000/16.
258
De Cubber v. Belgium, ECtHR, 26 October 1984, para. 29. Under Belgian law, the
Investigating Judge belonged to the criminal investigation police, acting under the
supervision of the Procureur-General.
259
De Cubber v. Belgium (n 258) para. 29.
260
De Cubber v. Belgium (n 258) para. 30.
261
S. Trechsel, Human Rights in Criminal Proceedings (Oxford: Oxford University Press,
2005) 69–70.
262
Summers (n 253) 102.
263
Fey v. Austria, ECtHR, 24 February 1993, para. 30.
264
Fey v. Austria (n 263) para. 35.
265
266
267
Hauschildt v. Denmark, ECtHR, 24 May 1989.
268
Hauschildt v. Denmark (n 267) paras 51–52.
269
Art. 1(1) ECCC IR.
270
See section 4.2 A(iv).
271
N. Jörg et al., ‘Are Inquisitorial and Adversarial Systems Converging?’, in P. Fennell et
al. (eds), Criminal Justice in Europe: A Comparative Study (Oxford: Clarendon Press, 1995)
47.
272
M. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the
Legal Process (New Haven/London: Yale University Press, 1986) 161–2 (Damaška adds that
‘officials in charge of the proceedings will refuse to rely exclusively, or even principally,
upon informational channels carved by persons whose interests are affected by the
prospective decision’).
273
Underlying the concept of ‘objective truth’ is the belief that an objective construction of
the reality is possible. See E. Grande, ‘Dances of Criminal Justice: Thoughts on Systemic
Differences and the Search for the Truth’, in J. Jackson et al. (eds), Crime, Procedure and
Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan
Damaška (Oxford/Portland, OR: Hart Publishing, 2008) 147 (speaking in this regard of the
‘ontological truth’, which is distinguished from the ‘interpretive truth’, based on the belief
that ‘a truly non-partisan approach in searching for the truth is unachievable in the human
world’).
274
Jörg et al. (n 271) 43.
275
But on Germany, see T. Weigend and F. Salditt, ‘The Investigative Stage of the Criminal
Process in Germany’, in E. Cape et al. (eds), Suspects in Europe: Procedural Rights at the
Investigative Stage of the Criminal Process in the European Union (Antwerp/Oxford:
Intersentia, 2007) 91 (noting that, although the criminal code is silent on this issue, the
defence is not prevented from conducting its own investigations, may interview witnesses
before trial or summon them at trial; where compulsory measures are required, the defence
may request the Ermittlungsrichter or the prosecutor to take evidence).
276
M. Langer, ‘The Rise of Managerial Judging in International Criminal Law’ (2005) 53
American Journal of Comparative Law 835, 840; Jörg et al. (n 271) 47. For Belgium, see Art.
61quinquies Code of Criminal Procedure (Belgium) (right of the suspect and the partie
civile (burgerlijke partij) to request additional investigative actions). Or for France, see Arts
81–89 Code of Criminal Procedure (France).
277
On Belgium, consider Decision 58/98, Constitutional Court, 27 May 1998, B.3.
(according to the Constitutional Court, this difference justifies the specific prerogatives
enjoyed by the prosecutor in the course of the investigation); Decision No. 82/94,
Constitutional Court, 1 December 1994, B.4. On France, consider V. Dervieux, ‘The French
System’, in M. Delmas-Marty and J.R. Spencer (eds), European Criminal Procedure
(Cambridge: Cambridge University Press, 2002) 223.
278
Langer (n 276) 840.
279
E.g. with regard to Germany, consider §152(1) Code of Criminal Procedure (Germany)
(according to which the prosecutor should file criminal accusations) and §161(1) (obligation
incumbent on the Prosecutor’s Office to investigate where it has learnt of a suspicion that a
crime has been committed). The conduct of investigative acts is often delegated to the
police.
280
S. Field and A. West, ‘Dialogue and the Inquisitorial Tradition: French Defence Lawyers
in the Pre-Trial Criminal Law Process’ (2003) 14 Criminal Law Forum 261, 263.
281
J. Fermon et al., ‘The Investigative Stage of the Criminal Process in Belgium’, in E.
Cape et al. (eds), Suspects in Europe: Procedural Rights at the Investigative Stage of the
Criminal Process in the European Union (Antwerp/Oxford: Intersentia, 2007) 33; Art. 75
Code of Criminal Procedure (France) (the police judiciaire take instructions from the
prosecutor during the preliminary inquiry or act ex officio) and Art. 14 (they act under the
direction of the juge d’instruction once a judicial investigation has been opened).
282
See section 2 A(v)(b).
283
Jörg et al. (n 271) 48 (‘investigation is motivated by self-interest rather than public
interest’).
284
Jörg et al. (n 271) 48.
285
Jörg et al. (n 271) 49.
286
As far as defence investigations are concerned, it should be noted that the ‘expectation’
that the defence will conduct a separate investigation, does not mean that such corresponds
to actual practice. Consider in that regard Field and West (n 280) 261–2 (referring to
research conducted in England showing a failure by defence counsel ‘to play the extensive,
autonomous investigative role the adversarial system demanded of them’). See M.
McConville et al., Standing Accused: The Organisation and Practices of Criminal Defence
Lawyers in Britain (Oxford: Clarendon Press, 1994).
287
Consider Cape and Hodgson ‘The Investigative Stage of the Criminal Process in
England and Wales’, in E. Cape et al. (eds), Suspects in Europe: Procedural Rights at the
Investigative Stage of the Criminal Process in the European Union (Antwerp/Oxford:
Intersentia, 2007) 59. The conduct of investigations is regulated by PACE 1984 and the
Codes of Conduct supplementing it.
288
Cape and Hodgson (n 287) 61.
289
Cape and Hodgson (n 287) 76; J.R. Spencer, ‘Evidence’, in M. Delmas-Marty and J.R.
Spencer (eds), European Criminal Procedure (Cambridge: Cambridge University Press,
2002) 626.
290
S. Gless, ‘Functions and Constitution of the Court at the Pre-Trial and Trial Phase’, in A.
Eser and E. Rabenstein, Strafjustiz im Spannungsfeld von Effizienz und Fairness (Berlin:
Dunker & Humblot, 2004) 345.
291
Although a judicial authorization is not always required for coercive measures, e.g.
under English law, obtaining a judicial authorization is normally a requirement for the
execution of searches. However, there are many exceptions to that rule, e.g. Section 17
(arrestable offences), Section 18, or Section 32(2)(b) PACE 1984.
292
However, arguably, indirect control exists due to the application by judges of evidence
rules in preparation of the trial or at trial. Consider Gless (n 290) 346.
293
Jackson (n 55) 25; Langer (n 276) 859 (noting that the rules make the parties the most
active actors in the criminal proceedings).
294
See §96 Code of Criminal Procedure (Denmark); §§225–226 Code of Criminal Procedure
(Norway); and Ch 23 ss 3–4 Code of Judicial Procedure (Sweden).
295
Ch 2 ss 1–2 and Ch 4, s. 1 Act on preliminary investigation (Finland), which enters into
force 1 January 2014.
296
E.g. §160 (2) Code of Criminal Procedure (Germany) requires the public prosecution
office to not only investigate incriminating but also exonerating circumstances. A similar
duty is incumbent on the Austrian prosecutor and derives from §3 Code of Criminal
Procedure (Austria). For Italy, consider Art. 358 Code of Criminal Procedure (Italy).
Similarly, the Belgian prosecutor has a duty to protect the public interest, by looking for the
material truth. He or she should look for evidence both in favour and against the accused.
See C. Van den Wyngaert, Strafrecht en Strafprocesrecht (Antwerp/Apeldoorn: Maklu,
2009) 871; C. Van den Wyngaert, Criminal Procedures in the European System (Brussels:
Butterworths, 1993) 14. Consider further N. Jörg et al. (n 271) 47 (arguing that prosecutors
in civil law criminal justice systems would be acting in breach of Rules of professional
ethics were they not to investigate circumstances which are favourable to the accused).
297
Consider e.g. Van den Wyngaert, Criminal Procedures (n 296) 14 (noting that in
practice ‘the dynamics of the proceedings usually put the ministère public in the role of a
partisan prosecutor, and thus of a real party in the proceedings’); H.H. Kühne, ‘Germany’, in
Van den Wyngaert, Criminal Procedures (n 296) 141 (‘[e]mpirical data demonstate,
however, that prosecutors usually do not obey this legal rule and predominantly look for
incriminating evidence’).
298
See Art. 81(1) Code of Criminal Procedure (France) and Art. 56(1) Code of Criminal
Procedure (Belgium).
299
Spencer (n 289) 626.
300
N. Jörg et al. (n 271) 48–9 (whereas the authors note a trend in adversarial justice
systems with the development of an organized police force and the acceptance of the police
power to detain and interrogate suspects, they note that this changed status of parties has
not yet resulted in the imposition of a clear truth-finding duty on the police to seek both
incriminating and exonerating evidence).
301
See section 2 B(ii)(a); K. Ambos, ‘The Status, Role and Accountability of the Prosecutor
of the International Criminal Court: A Comparative Overview on the Basis of 33 National
Reports’ (2000) 8 European Journal of Crime, Criminal Law and Criminal Justice 89, 104;
G.A. McClelland, ‘Non-Adversary Approach to International Criminal Tribunals’ (2002–03)
26(1) Suffolk Transnational Law Review 1, 14 (noting that the prosecutor may only be
tangentially involved in the investigation prior to trial).
302
Consider e.g. R.K. Little, ‘Proportionality as an Ethical Precept for Prosecutor in Their
Investigative Role’ (1999) 68 Fordham Law Review 723, 728–9; N.L. Philips and S. Smith,
‘Reinterpreting the Ethical Duties of a Prosecutor: Y-STR as a Model Investigative
Tool’ (2009) 22 Georgetown Journal of Legal Ethics 1073, 1083–4.
303
See e.g. Berger v. US, 295 US 78, 88 (1935) (‘The United States Attorney is the
representative not of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice
shall be done’); John L. Brady v. State of Maryland, 373 US 83, 87 (1963) (where the
prosecutor had withheld exculpatory evidence from the accused, the Supreme Court held
that prosecutors should seek justice and not victory). Consider further ABA, Model Code of
Professional Responsibility, 1986, EC 7–13. This broad ethical duty has been criticized as
offering little guidance in practice. Consider e.g. F.C. Zacharias, ‘Specificity in Professional
Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics’ (1993) 69
Notre Dame Law Review 223, 292 (arguing that in the absence of other constraints, such
rule offers minimal guidance).
304
See the Commentary to Rule 3.8 of the Model Rules of Professional Conduct of 1995.
Consider further ABA, Standards for Criminal Justice, 1993, Standard 3-1.2.
305
Consider e.g. K. Bresler, ‘Pretty Phrases: “The Prosecutor as Minister of Justice and
Administration of Justice”’ (1995–96) 9 Georgetown Journal of Legal Ethics 1301, 1301–5;
Philips and Smith (n 302) 1084; Langer (n 276) 839.
306
Jörg et al. (n 271) 49. The authors note the development whereby adversarial criminal
justice systems increasingly adopt inquisitorial investigative instruments, including the
police powers to detain and interrogate suspects. This necessarily distorts the equality
between parties. They add that: ‘One response to this changed status of parties might have
been to place a clear truth-finding duty on the police to seek out both exculpatory and
inculpatory evidence. But such profound change has not yet occurred.’
307
Art. 3(5) Criminal Procedure and Investigations Act 1996 (Section 23.1(1) Code of
Practice).
308
Consider e.g. Spencer (n 289) 626–7 (arguing that such provision puts an affirmative
obligation on the prosecutor to search for evidence à charge and à décharge equally); C.J.M.
Safferling, Towards an International Criminal Procedure (Oxford: Oxford University Press,
2001) 75 (arguing that the English police must be objective, in the sense that the police
must not only consider whether there is sufficient evidence to charge a particular suspect
but should also establish that all reasonable alternatives have been rebutted); J. Jackson,
‘The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence,
Divergence or Realignment?’ (2005) 68 Modern Law Review 737, 760, note 122. For a
divergent view, consider B. Swart, ‘Damaška and the Face of International Criminal
Justice’ (2008) 6 JICJ 87, 109, note 81.
309
Art. 13 (b) UN Guidelines on the Role of the Prosecutors 1990.
310
Arts 3(a) and (c) and 4.2(a) and (b) Standards of Professional Responsibility and
Statement of the Essential Duties and Rights of Prosecutors 1999.
311
Art. 3(d) and (e) Standards of Professional Responsibility (n 310).
312
Art. 24(a) Recommendation (2000)19 on The Role of Public Prosecution in the Criminal
Justice System, Committee of Ministers, Council of Europe, 6 October 2000.
313
See Chapter 1. See further Swart (n 308) 101.
314
This is not to say that international criminal tribunals are well-suited to a historical
discourse. See Chapter 1.
315
Damaška (n 272) 123.
316
Damaška (n 143) 176. The author argues that: ‘it is easier to proclaim these rules in a
normative script than to realize them in practice’. See Mbarushimana, PTC, ICC, 16
December 2011, para. 51, as discussed in section 2 A(iii)(c).
317
E.g. Haraquja and Morina, TC, ICTY, 17 December 2008, paras 86–102.
318
A. Ashworth and M. Redmayne, The Criminal Process (Oxford: Oxford University Press,
2005) 81.
319
Art. 16 IMT Charter as well as Rule 2 IMT RPE. These safeguards included the right of
the suspect during preliminary examination to give any explanation relevant to the charges
against him (Art. 16.b) and the right to have the examination conducted in a language he
understood or to have appropriate translation (Art. 16.c). Rule 2 IMT RPE confered similar
rights such as the right for a defendant to receive a copy of the indictment in a language he
understood and to request the production of witnesses or documents.
320
Cf. Art. 9 IMTFE Charter.
321
N. Boister and R. Cryer, The Tokyo International Military Tribunal: A Reappraisal
(Oxford: Oxford University Press, 2008) 75.
322
May and Wierda (n 4) 289, noting that: ‘although the right to remain silent was
generally accepted in historical trials, its application was rudimentary’; Zappalà (n 9) 21;
G.S. Gordon, ‘Toward an International Criminal Procedure: Due Process Aspirations’ (2007)
45 Columbia Journal of Transnational Law 635, 645.
323
R.J. Wilson, ‘A History of the Role of Defense Counsel in International Criminal and War
Crimes Tribunals’, in M. Bohlander et al. (eds), Defense in International Criminal
Proceedings: Cases, Materials and Commentary (Ardsley, NY: Transnational Publishers,
2006) 39 (noting that the defendants before the IMTFE were interrogated from the time of
their arrest in the fall of 1945 until April 1946 in the absence of counsel and without any
charge); consider further D.A. Sprecher, Inside the Nuremberg Trial, A Prosecutor’s
Comprehensive Account, Vols I and II. 1 (Lanham, MD: University Press of America, 1999)
80. E.g. Tōjō was questioned for 124 hours in the course of the investigation without
counsel being present: see Boister and Cryer (n 321) 75.
324
Art. 15(c) of the IMT Charter; no similar power is explicitly provided for in the IMTFE
Charter.
325
This seems to be a clear violation of the right against self-incrimination. See ‘Sixth Day,
Tuesday, 27 November 1945, Morning Session’ (1947) 2 IMT 322.
326
Art. 13(a) of the IMTFE Charter: ‘All purported admissions or statements of the accused
are admissible.’ No explicit provision was to be found in the IMT Charter (cf. Art. 19 IMT
Charter).
327
Boister and Cryer (n 321) 107.
328
329
Further distinctions are possible, based, for example, on the relationship of the person
interrogated with the victim(s) of the crimes allegedly committed or with the suspect(s) or
accused persons. While such relationships may have an influence on the weight given to the
testimony, the same procedural rules apply to the questioning of these persons. Therefore,
such distinction is not useful for the present discussion.
330
See section 3.1.2.
331
Halilović, TC, ICTY, 8 July 2005; Halilović, AC, ICTY, 16 October 2007, paras 19 et seq.
See further S. Luzzati, ‘On the Admissibility of Statements Made by the Defendant Prior to
Trial: Remarks on the ICTY Appeals Chamber’s Decisions in Halilović and Prlić et al.’ (2010)
8 JICJ 221, 221–36.
332
This statement was the result of different interviews with Halilović in February and
May 1996.
333
Halilović, AC, ICTY, 16 October 2007, para. 22.
334
Halilović (n 333) para. 37.
335
Halilović, TC, ICTY, 8 July 2005, para. 21.
336
337
For a discussion on the right to remain silent during interrogation, see section 3.1.1(ii)
(b.3).
338
This issue will be discussed in section 3.1.1(ii)(b.3).
339
Halilović, AC, ICTY, 16 October 2007, para. 38.
340
Halilović (n 339) paras 38–39.
341
Halilović, AC, ICTY, 16 October 2007 (sep. op. of Judge Meron) and Halilović, AC, ICTY,
16 October 2007 (sep. op. of Judge Schomburg).
342
Halilović, AC, ICTY, 16 October 2007 (sep. op. of Judge Meron), paras 5–6.
343
Halilović, AC, ICTY, 16 October 2007 (sep. op. of Judge Schomburg), para. 5.
344
Zigiranyirazo, TC, ICTR, 29 November 2006, para. 9.
345
See Chapter 7.
346
This being said, a wider application of the procedural safeguards for the questioning of
suspects or accused may prove useful for the prosecution, as respect for these safeguards
will help the prosecutor later to prove the reliability and voluntariness of the statements
made.
347
Halilović, AC, ICTY, 16 October 2007 (sep. op. of Judge Schomburg), para. 4; see
further Halilović, AC, ICTY, 16 October 2007 (decl. of Judge Shahabuddeen), para. 6 (the
test is whether the witness ‘was objectively a suspect, even though he may be called a
witness’).
348
Rule 2 ICTY RPE, ICTR RPE, and SCSL RPE.
349
S. Swoboda, ‘Admitting Relevant and Reliable Evidence: The ICTY’s Flexible Approach
Towards the Admission of Evidence under Rule 89(C) ICTY RPE’, in T. Kruesmann (ed.),
ICTY: Towards a Fair Trial? (Antwerp: Intersentia, 2009) 380.
350
351
Zappalà (n 9) 50–1; Zappalà, (n 5) 1191. The author rightly argues that the
determination of what is ‘reliable information’, which tends to show that the suspect may
have committed a crime within the jurisdiction of the Tribunal, does not offer any guidance
as to what should exactly be considered ‘reliable information’. Consequently, such a
determination is subject to the discretion of the prosecutor.
352
See section 3.1.1 A(ii).
353
Rules 2 and 47(H)(ii) ICTY RPE, ICTR RPE, and SCSL RPE.
354
Sesay et al., TC, SCSL, 30 June 2008, para. 47. The Trial chamber considered that the
person was addressed throughout the interview as a suspect despite having being charged
but not yet served with the indictment.
355
Delalić et al., TC, ICTY, 2 September 1997, paras 43–44 and 48; see further Delalić et
al., AC, ICTY, 20 February 2001, para. 530.
356
G. Sluiter, ‘Commentary: Prosecutor v. Mucić, Exclusion of Evidence’, in A. Klip and G.
Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals, Vol. I:
International Criminal Tribunal for the Former Yugoslavia 1993–1998 (Antwerp: Intersentia,
1999) 242; G. Sluiter, ‘Recht op aanwezigheid van raadsman tijdens politieverhoor absoluut
vereiste voor toelating bewijs’ (1998) 23 NJCM Bulletin 75, 86–7.
357
For a discussion of these procedural rights, see section 3.1.1 A(ii)(b).
358
Rule 37(B) ICTR RPE, ICTY RPE, and SCSL RPE.
359
Mrkšić et al., TC, ICTY, 9 October 2006, para. 21; see further the reference in Halilović,
AC, ICTY, 16 October 2007 (sep. op. of Judge Schomburg), note 1. It should be noted that
the ICTR Prosecutor has argued on occasion that Rule 42 of the ICTR RPE, which
elaborates the procedural rights of suspects during interrogation, does not apply when a
suspect is provisionally arrested pursuant to Rule 40 and before that person is transferred
to Arusha. The prosecutor finds support for this reasoning in Rule 40(C) of the ICTR RPE.
This reasoning has not been endorsed by the Tribunal, see e.g Kajelijeli, TC, ICTR, 8 May
2000, para. 24.
360
Mrkšić et al., TC, ICTY, 9 October 2006, para. 27.
361
Mrkšić (n 360) para. 27; Consider e.g. Ndayambaje et al., TC, ICTR, 15 May 2006, para.
67.
362
Mrkšić et al., TC, ICTY, 9 October 2006, paras 22 and 27.
363
Mrkšić (n 362) para. 38.
364
365
366
For a discussion of the recording requirements, see section 3.1.1 A(ii)(b.6).
367
368
Halilović, AC, ICTY, 16 October 2007 (sep. op. of Judge Meron), para. 6; Halilović, AC,
ICTY, 16 October 2007 (sep. op. of Judge Schomburg), para. 7.
369
Halilović, AC, ICTY, 16 October 2007, paras 38–40; Halilović, TC, ICTY, 8 July 2005,
paras 24–25.
370
Swoboda (n 349) 380; Halilović, AC, ICTY, 16 October 2007 (sep. op. of Judge Meron),
para. 6; Halilović, AC, ICTY, 16 October 2007 (decl. of Judge Shahabuddeen), paras 7–10.
Judge Shahabuddeen argues that, if the sanction of the violation of Rule 43 were the
automatic exclusion of the statement, it should have been explicitly stated in the provision.
371
Rule 92 ICTY RPE, ICTR RPE, and SCSL RPE; Halilović, AC, ICTY, 16 October 2007
(decl. of Judge Shahabuddeen), para. 8.
372
Art. 18(2) ICTY Statute; Art. 17(2) ICTR Statute; and Art. 15(2) SCSL Statute.
373
Rule 63 ICTY RPE, ICTR RPE, and SCSL RPE.
374
See in particular Rule 42 and Rule 43 ICTY, ICTR, and SCSL RPE.
375
Rule 42(A) ICTY RPE, ICTR RPE, and SCSL RPE; Art. 18(3) ICTY Statute and Art. 17(3)
ICTR Statute.
376
See section 3.1.1 A(ii)(b.2).
377
On representation by counsel, see Chapter 9, section A.1.1(ii).
378
379
Rule 63(A) ICTY RPE, ICTR RPE, and SCSL RPE.
380
Bagosora et al., TC, ICTR, 14 October 2004, para. 16; the right to legal assistance is
also important as it ensures the respect of other rights of the suspect or accused: para. 23.
381
Gotovina et al., TC, 24 July 2008, para. 4.
382
Delalić et al., TC, ICTY, 2 September 1997, para. 60.
383
Rule 45(A) ICTY RPE. However, Rule 45 ICTR RPE and SCSL RPE does not include such
‘interests of justice’ requirement.
384
M. Bohlander, ‘The Defence’, in G. Boas and W.A. Schabas (eds), International Criminal
Law Developments in the Case Law of the ICTY (Leiden: Martinus Nijhoff Publishers, 2003)
39. While Bohlander leaves aside whether this apparent inconsistency reveals a breach of
the hierarchy of norms, is an acceptable interpretation under Art. 15 of the Statute, or is
the result of a mere oversight, he clarifies that the phrase ‘interests of justice’ was taken
from Art. 14 of the ICCPR. Further, while it could have a meaning in domestic prosecutions,
it is meaningless in international criminal law.
385
Rules 42(A) and 63(B) ICTY RPE, ICTR RPE, and SCSL RPE.
386
Rule 42(A) ICTY RPE.
387
Rule 42(A) ICTR and SCSL RPE. Earlier, the text of Rule 42 ICTY RPE also required the
suspect to be informed in a language he or she ‘speaks and understands’ but this provision
was amended in 2005 (UN Doc. IT/32/Rev. 36, 21 July 2005).
388
Delalić et al., AC, ICTY, 20 February 2001, para. 552.
389
Delalić et al., TC, ICTY, 9 October 1996, paras 9–10; C. Bizimungu et al., TC, ICTR, 4
December 2003 (Decision on Prosper Mugiraneza’s Renewed Motion to Exclude his
Custodial Statements from Evidence), paras 17–19.
390
Delalić et al., TC, ICTY, 2 September 1997, para. 59; V. Popović et al., TC, ICTY, 25
October 2007, para. 32.
391
Delalić et al., AC, ICTY, 20 February 2001, para. 553.
392
393
Delalić (n 392) paras 42 and 48; the SCSL in this regard speaks of an ‘established
principle of law’: see Sesay et al., TC, SCSL, 30 June 2008, para. 36; Bagosora et al., TC,
ICTR, 14 October 2004, para. 18; Haraqija et al., TC, ICTY, 4 August 2008, para. 3.
394
Rule 63(A) ICTY, ICTR, and SCSL RPE.
395
Bagosora, TC, ICTR, 14 October 2004, para. 18.
396
Thompson v. UK, ECtHR, 15 September 2004, para. 43; Håkansson and Sturesson v.
Sweden, ECtHR, 21 February 1990, para. 66; and Pfeifer and Plankl v. Austria, ECtHR, 25
February 1992.
397
Miranda v. Arizona, 384 US 436, 475 (1966) ‘An express statement that the individual is
willing to make a statement and does not want an attorney followed closely by a statement
could constitute a waiver.’ (emphasis added); R. v. Bartle [1994] 3 S.C.R. 173, para. 39
‘clear and unequivocal’.
398
Krajišnik, TC, ICTY, 18 August 2005, para. 6. This decision relates to the waiver of the
right to counsel at trial. However, the interpretation of the requirements for a valid waiver
of counsel is also relevant for our analysis.
399
Krajišnik (n 398) para. 5; see further Nuon Chea et al., PTC, ECCC, 20 March 2008
(‘Decision on Appeal against Provisional Detention Order of Nuon Chea’), para. 26.
400
In this sense, one may compare the Bagosora and Krajišnik decisions. Whereas, in the
Bagosora decision, the TC considered it sufficient that a suspect is informed about the right
to a lawyer, in Krajišnik, which concerned the right to self-representation and waiver at
trial, the Chamber required information on the financial and practical consequences of
proceeding without a lawyer.
401
Krajišnik, TC, ICTY, 18 August 2005, para. 8.
402
Bagosora et al., TC, ICTY, 14 October 2004, para. 17.
403
Sesay et al., TC, SCSL, 30 June 2008 (diss op. Judge Itoe), para. 47. Judge Itoe dissents
from the majority in that he does not agree that the waiver of counsel by Sesay was made
voluntarily and subscribed to.
404
Bagosora (n 402) para. 19 ‘The accused told the investigators that as soon as he is
informed about the case against him, he would then “exercise” his right to counsel or “be
entitled” to have the assistance of counsel.’
405
Bagasora (n 402) para. 20. The TC stated that: ‘It was improper for the investigators to
have explained that “standard procedure” was that disclosure occurred at a later time. The
Accused was under the impression that the interview was “preliminary”, but the
investigators proceeded to ask important questions of substance.’
406
Nchamihigo, TC, ICTR, 5 February 2007, para. 24.
407
Bagosora et al., TC, ICTY, 14 October 2004, para. 17.
408
Bagosora (n 407) paras 17–18.
409
Rules 42(B) and 63(A) ICTY RPE, ICTR RPE, and SCSL RPE.
410
Popović et al., TC, ICTY, 25 October 2007, para. 33.
411
Popović (n 410) para. 31.
412
Halilović, AC, ICTY, 19 August 2005, paras 61–62.
413
Blagojević and Jokić, TC, ICTY, 18 September 2003, para. 10.
414
Blagojević and Jokić (n 413) para. 10.
415
416
417
418
Rule 42(A)(iii) ICTY RPE, ICTR RPE, and SCSL RPE. Note that this right is not
mentioned in the Statute.
419
Rule 63(B) ICTY RPE, ICTR RPE, and SCSL RPE.
420
Art. 20(4)(g) ICTR Statute; Art. 21(4)(g) ICTY Statute; and Art. 17(4)(g) SCSL Statute.
421
Rule 42 ICTY RPE as amended at the fifth Plenary Session (16 January–3 February
1995): Rule 42(A)(iii) ICTY RPE, UN Doc. IT/32/Rev. 3, 30 January 1995; the right for
suspects to remain silent was mentioned from the beginning in the ICTR and SCSL RPE
(Rule 42(A)(iii)).
422
Rule 63 ICTY RPE was amended at the twelfth Plenary Session (2–3 December 1996) to
make it consistent with Rule 42(A)(iii): Rule 63 ICTY RPE (IT/32/Rev. 10, 3 December 1996);
Rule 63(B) ICTR RPE as amended at the fifth Plenary Session (1–8 June 1998), 8 June 1998.
423
424
Rule 42(A)(iii) ICTY RPE, ICTR RPE, and SCSL RPE.
425
Halilović, TC, ICTY, 8 July 2005, para. 23.
426
Halilović, AC, ICTY, 19 August 2005, para. 15. In Bagosora, the TC underscored the
importance of legal representation explaining other rights at the preliminary stage, see
Bagosora, TC, ICTY, 14 October 2004, para. 21.
427
428
Delalić (n 427) paras 54–55.
429
430
Prilć et al., TC, ICTY, 5 September 2007, para. 19. However, this case concerned the
statement of the interrogation of a witness.
431
Delalić et al., AC, ICTY, 20 February 2001, paras 549–550.
432
Delalić (n 431) para. 551.
433
Blagojević and Jokić, TC, ICTY, 18 September 2003, para. 19; Kvočka et al., TC, ICTY,
16 March 2001; Halilović, AC, ICTY, 19 August 2005, para. 15.
434
Murray v. UK, ECtHR, 8 February 1996.
435
Delalić et al., TC, ICTY, 19 January 1998 (Decision on the Prosecution’s Oral Requests
for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused,
Zdravko Mucić, to Provide a Handwriting Sample), para. 46.
436
The Chamber also rejected the argumentation by the prosecution, based on American
jurisprudence, that the privilege from self-incrimination should be qualified or restricted to
testimonial evidence. There was no such condition contemplated by the law-maker, see
437
438
439
440
441
Halilović, AC, ICTY, 19 August 2005, para. 38.
442
See Delalić et al., TC, ICTY, 1 September 1997, para. 15.
443
Delalić (n 442) paras 38–39; Halilović, TC, ICTY, 20 June 2005, paras 13–14. The AC
had indicated in previous case law that the fact that the accused had provisionally agreed to
be interviewed by the prosecution is a factor the TC should take into consideration when
deciding on provisional release.
444
Sesay et al., TC, SCSL, 30 June 2008, para. 43, citing the case of R. v. Spencer, before
the Supreme Court of Canada: R. v. Spencer [2007] 1 S.C.R. 500, 2007 SCC 11.
445
Sesay et al., TC, SCSL, 30 June 2008, para. 45.
446
Sesay (n 445) para. 45.
447
448
449
Sesay et al., TC, SCSL, 21 June 2007 (transcript), at 7. See A. Alamuddin, ‘Collection of
Evidence’, in K.A.A. Khan et al., Principles of Evidence in International Criminal Justice
450
451
452
453
454
The TCs cited the facilities provided, such as refreshments as well as the rest between
different periods of questioning, as examples of material considerations.
455
Delalić et al., TC, ICTY, 2 September 1997, para. 68 (refering to R v. Prager (1972) 56
Cr. App. R. 151).
456
457
Orić, TC, ICTY, 7 February 2006 (Decision on Defence Motion to Exclude Interview of
the Accused Pursuant to Rules 89(D) and 95), para. 28; Orić, TC, ICTY, 30 June 2006, para.
55.
458
Sesay et al., TC, SCSL, 30 June 2008, para. 57.
459
E.g. Kabiligi, TC, ICTR, 6 October 1998; Ndayambaje et al., TC, ICTR, 15 May 2006,
para. 80; Ntahobali and Nyiramasuhuko, AC, ICTR, 27 October 2006.
460
Ndayambaje et al., TC, ICTR, 15 May 2006, para. 76.
461
Art. 21(4)(a) ICTY Statute; Art. 20(4)(a) ICTR Statute; and Art. 17(4)(a) SCSL Statute.
462
Simić et al., TC, ICTY, 11 September 2001.
463
Simić (n 462) 2.
464
The indictment was faxed but only the first six pages were received by the accused.
465
Simić (n 462) 2.
466
Simić (n 465) 2; Simić et al., TC, ICTY, 11 March 2003, para. 3.
467
Simić et al., TC, ICTY, 11 March 2003, para. 5.
468
As acknowledged e.g. in Haraqija and Morina, TC, ICTY, 28 August 2008.
469
Karemera et al., TC, ICTR, 2 November 2007.
470
Karemera (n 469) para. 9 and paras 40–41.
471
At several points, the TC seems to imply that there is an obligation to inform the
suspect about ‘the charges or provisional charges’. Such wording is confusing, as
information on the allegations seems to be referred to. Moreover, the TC could be clearer
that such right to be informed about the allegations attaches to the arrest of the suspect
and is not a requirement for the questioning of suspects. Additionally, the TC holds that
there is a right to be informed about the allegations because otherwise, a suspect is not in a
position to waive his or her right to counsel in an informed way.
472
Karemera et al., TC, ICTR, 2 November 2007, para. 41.
473
See section 4.2 B(i)(c).
474
Safferling (n 308) 115, 120–1; Zappalà argues with regard to Art. 21 ICTY Statute that
‘whether the same protection must be afforded to a person before he or she assumes the
status of accused cannot really be discussed. It is logical to assume, as explained above,
that in general, protection for those who are not yet accused may be wider but certainly not
narrower’. He argues that persons under investigation must benefit from all those rights
established for the accused which may be applicable to their situation, see Zappalà (n 9)
48–50.
475
Safferling adds that: ‘Against this background, it seems unlikely that the drafters of the
Statute wished to exclude the right of the suspect to be informed about the allegations
against him as soon as possible.’ Safferling (n 308) 121.
476
Karemera et al., TC, ICTR, 2 November 2007, para. 30.
477
E.g. when questioned, Morina complained that he was unaware of any allegations and
stated that it would have been difficult for him to decide to exercise or waive his right to
counsel; See Haraqija and Morina, TC, ICTY, 4 August 2008, para. 3.
478
Haraqija and Morina (n 477) para. 30 and accompanying footnote.
479
Haraqija and Morina, TC, ICTY, 28 August 2008, paras 29–30; Haraqija and Morina, TC,
ICTY, 14 October 2008, para. 14.
480
Haraqija and Morina, AC, ICTY, 23 July 2009, para. 37.
481
Haraqija and Morina, TC, ICTY, 28 August 2008, paras 29–30.
482
See e.g. Delalić et al., TC, ICTY, 9 October 1996, para. 12; Popović et al., TC, ICTY, 25
483
Delalić et al., TC, ICTY, 9 October 1996, para. 11; The Chamber adds: ‘There is nothing
in Rule 42 or in any other Rule which requires such disclosure at that stage of the
investigation. All that is necessary under Rule 42 is that the suspect be informed of his
rights as set out in that Rule.’
484
Art. 18(3) ICTY Statute; Art. 17(3) ICTR Statute.
485
Art. 20(4)(f) ICTR Statute; Art.21(4)(f) ICTY Statute; and Art. 17(4)(f) SCSL Statute.
486
Rule 42(A) ICTY RPE, ICTR RPE, and SCSL RPE.
487
Delalić et al., TC, ICTY, 8 July 1997.
488
489
490
Rule 43(i) ICTY RPE, ICTR RPE, and SCSL RPE.
491
Rule 43(iii) ICTY RPE, ICTR RPE, and SCSL RPE.
492
Rule 43(ii) ICTY RPE, ICTR RPE, and SCSL RPE.
493
Rule 43(v) ICTY RPE, ICTR RPE, and SCSL RPE.
494
Rule 43(iv) ICTR RPE and SCSL RPE.
495
Rule 43(vi) ICTY RPE.
496
497
Halilović, AC, ICTY, 19 August 2005, para. 41.
498
499
See Sesay et al., TC, SCSL, 30 June 2008, para. 47.
500
501
502
S.A.F. de Gurmendi, ‘International Criminal Law Procedures, the Process of
Negotiations’, in Lee, R.S. (ed.), The International Criminal Court: The Making of the Rome
Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999) 223,
note 13; Zappalà, ‘Rights of Persons during an Investigation’ (n 5) 1196; H. Friman, ‘Rights
of Persons Suspected or Accused of a Crime’, in Lee, R.S. (ed.), The International Criminal
Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer
Law International, 1999) 248.
503
Art. 55(2) ICC Statute; the term ‘suspect’ and a ‘person against whom there are
grounds to believe that he or she has committed a crime within the jurisdiction of the Court’
are interchangeable concepts, see e.g. C.K. Hall, ‘Article 55: Rights of Persons During an
Invertigation’, in Triffterer (ed.), Commentary on the Rome Statute 1097; H. Friman, ‘The
Rules of Procedure and Evidence in the Investigative Stage’, in H. Fischer et al. (eds),
International and National Prosecution of Crimes under International Law: Current
Developments (Berlin: Berlin Verlag Arno Spitz, 2001) 197.
504
See e.g. Arts 61(6) and 63 ICC Statute.
505
Katanga and Ngudjolo, TC, ICC, 25 November 2009 (Transcript), at 11.
506
Art. 55(2) ICC Statute. See further Rule 111(2) ICC RPE.
507
See Hall (n 503) 1097.
508
Where the court has to consider the admission into evidence of statements which were
not taken by the requested state in accordance with Rule 112 ICC RPE, Art. 69(4) ICC
Statute applies.
509
Friman (n 503) 198.
510
This article should be read together with Art. 88 ICC Statute that obliges states to
ensure that procedures are available under their national law for all forms of cooperation
specified. On this issue, see G.K. Sluiter, International Criminal Adjudication and the
Collection of Evidence: Obligations of States (Antwerp: Intersentia, 2002) 207.
511
Art. 99(4) ICC Statute. See the discussion of this provision in section 3.1.2 A(iii)(a).
512
Art. 55(2) ICC Statute. Generally on the right to assistance by counsel, see Chapter 4.
513
A provision which closely resembles Art. 14(3)(d) ICCPR.
514
Art. 55(2)(d) ICC Statute.
515
Compare Art. 55(2)(d) ICC Statute with Rules 42(B) and 63(A) ICTR, ICTY, and SCSL
RPE.
516
Art. 55(2)(b) ICC Statute.
517
Art. 67(1)(g) ICC Statute.
518
Cf. Rule 42(A)(iii) ICTY, ICTR, and SCSL RPE.
519
Katanga and Ngudjolo, PTC, ICC, 20 March 2008 (transcript), para. 21.
520
Art. 55(2)(b) ICC Statute.
521
The protection also surpasses what is required in international human rights law, see
section 3.1.1 B(i)(b).
522
Art. 67(1)(a) ICC Statute. See Chapter 4.
523
W.A. Schabas, ‘Article 67: Rights of the Accused’, in Triffterer (ed.), Commentary on the
Rome Statute 1257.
524
Some authors seem to interpret this provision as also including a duty to inform the
suspect about the nature and cause of the allegations against him or her. E.g. Safferling
argues that Art. 55(2)(a) includes information as to the cause and grounds for the
suspicions, see Safferling (n 308) 12.
525
Arts 58 and 59 ICC Statute, Rule 117 ICC RPE.
526
Alamuddin (n 449) 272.
527
Art. 55(1)(c) and Art. 67(1)(f) ICC Statute.
528
Cf. Art. 14(3)(f) ICCPR, Art. 6(3)(e) ECHR, and Art. 8(2)(a) ACHR. See Katanga and
Ngudjolo, AC, ICC, 27 May 2008, para. 61.
529
Art. 55(1)(c) ICC Statute.
530
Rules 111 and 112 ICC RPE.
531
Rule 112 is lex specialis to Rule 111, meaning that when the prosecution records the
questioning of a person in accordance with Rule 112, it is not required to create an
additional record of the person’s statements under Rule 111: Banda and Jerbo, AC, ICC, 17
February 2012, paras 26–28.
532
Rule 112(4) ICC RPE.
533
534
See H. Friman, ‘Investigation and Prosecution’, in Lee, R.S. (ed.), The International
Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague:
Kluwer Law International, 1999) 514–15; Friman (n 503) 197–8.
535
In that regard, Friman recalls that at the time the proposals were discussed, some
delegations thought they were ‘excessively detailed’. See Friman (n 534) 514.
536
Rule 112(1)(b) and (c) ICC RPE.
537
Rule 112(1)(d) ICC RPE.
538
Rule 112(1)(e) ICC RPE.
539
Rule 112(1)(f) ICC RPE.
540
Rule 112(1)(a) ICC RPE.
541
Rule 112(1)(a) ICC RPE.
542
543
See Rule 111 ICC RPE. In such a case, the person interviewed should be given a copy
of his or her statement.
544
Section 6.3(a) TRCP. Contrary to other international criminal tribunals, the TRCP do not
distinguish between the rights of a suspect and the rights of the accused.
545
Section 6.2(f) TRCP.
546
Section 6.3(h) TRCP; see further Section 6.2(a) TRCP (custodial interrogation).
547
Section 6.3(b) TRPC.
548
See the definitions of ‘suspect’ and ‘accused’ in Section 1 TRCP.
549
Section 6.3(c) TRPC.
550
Section 6.3(i) TRCP.
551
JSMP Trial Report, 16 March 2002, as reprinted in Bohlander et al. (n 323) 719.
552
Francisco Pedro, SPSC, 22 May 2001, as reprinted in A. Klip and G. Sluiter (eds),
Annotated Leading Cases of International Criminal Tribunals, Vol. 13: Timor Leste—The
Special Panels for Serious Crimes 2001–2003 (Antwerp: Intersentia, 2008) 29.
553
Klip and Sluiter (n 552) 7.
554
An admission of guilt by the accused had to be made before a judge if the statement
was to be used in evidence. The court should consider whether (1) the accused understood
the nature and consequences of the admission, (2) the admission was made voluntarily after
sufficient consultation with defence counsel, and (3) the admission was supported by the
facts of the case. See Section 33.4 juncto Section 29A.1 TRCP.
555
A suspect has been defined in the Glossary to the Internal Rules as ‘a person whom the
Co-Prosecutors or the Co-Investigating Judges consider may have committed a crime within
the jurisdiction of the ECCC, but has not yet been charged’.
556
Rule 55(5) ECCC IR.
557
Rule 62(3)(b) ECCC IR.
558
Rule 50(4) ECCC IR.
559
Rule 67 ECCC IR; Glossary annexed to the IR.
560
Rule 25 ECCC IR.
561
Rule 25(1)(b) ECCC IR.
562
Rule 25(1)(c) and (d) ECCC IR.
563
Rule 25(2) ECCC IR.
564
Rule 25(4) ECCC IR.
565
Rule 21(3) ECCC IR.
566
On the use of deceptive interrogation techniques, see section 3.1.1 B(ii).
567
Rule 27 ECCC IR.
568
See Rule 58 ECCC IR. It is important to understand the difference between a ‘charged
person’, or ‘personne mise en examen’ which means a person who is put under judicial
examination, and an accused. According to the Glossary annexed to the IR, the term
‘charged person’ refers to any person who is subject to prosecution in a particular case,
during the period between the introductory submission and indictment or dismissal of the
case; see further G. Acquaviva, ‘New Paths in International Criminal Justice: The internal
Rules of the Cambodian Extraordinary Chambers’ (2008) 6 JICJ 129, 136.
569
Rule 58(1) ECCC IR. The judicial police or investigators are not allowed to question the
charged person, see Rule 62(3)(b) ECCC IR.
570
Rule 58(6) ECCC IR.
571
Rule 58(6) ECCC IR.
572
Rule 58(1) ECCC IR.
573
Nuon Chea et al., PTC, ECCC, 26 August 2008, para. 45. In casu, no international co-
lawyer for the charged person had yet been selected.
574
Nuon Chea (n 573) para. 47.
575
Rule 58(2) ECCC IR. If the lawyer has been correctly summoned but fails to appear at
the interview, the co-investigating judges can temporarily assign counsel. This designated
counsel should be given sufficient time to review the case file.
576
Rule 58(3) ECCC IR.
577
Rule 58(4) ECCC IR.
578
See Rule 63 ECCC IR.
579
Nuon Chea, PTC, ECCC, 20 March 2008 (‘Decision on Appeal against Provisional
Detention Order of Nuon Chea’), paras 17, 32, and 40.
580
581
582
Rule 58(5) ECCC IR.
583
A similar right is provided for accused persons in Art. 35 new (d) ECCC Law; see
further Rule 21(1)(d) ECCC IR.
584
Consider further Rule 21(1)(d) ECCC IR.
585
Art. 35 new (g) ECCC Law.
586
Rule 21(1)(d) ECCC IR.
587
Nuon Chea et al., PTC, ECCC, 26 August 2008, para. 54.
588
Nuon Chea, PTC, ECCC, 20 March 2008 (‘Decision on Appeal against Provisional
Detention Order of Nuon Chea’), para. 40.
589
The right to remain silent is included in the list of ‘fundamental principles’ in Rule 21
ECCC IR.
590
Rule 21(1)(d) ECCC IR.
591
Art. 24 new ECCC Law. A similar right is provided for accused persons in Art. 35 new
(f) ECCC Law.
592
Rules 65, 66, and 85 STL RPE.
593
Rule 66 STL RPE.
594
Rule 66 STL RPE.
595
Rule 112(2) ICC RPE, see section 3.1.1 A(iii)(b.6), and Art. 25(2) ECCC IR, see section
3.1.1 A(v)(b).
596
Art. 15 STL Statute.
597
Rule 65(A) STL RPE.
598
The amendment was rejected ‘for it would invite speculations as to the discrepancy
between the RPE and international instruments on human rights’. See STL ‘Summary of the
Accepted Rule Amendments and Some Key Rejected Rule Amendment Proposals Pursuant
to Rule 5(I) of the Special Tribunal for Lebanon’s Rules of Procedure and Evidence’,
November 2010, at 24.
599
Art. 15(e) STL Statute; Rule 65(B) STL RPE.
600
Rule 65(B) STL RPE, cf. Rule 42(B) of the ICTR, ICTY, and SCSL RPE, see section 3.1.1
A(ii)(b.2).
601
Art. 15(e) STL Statute.
602
Rule 65(B) STL RPE.
603
Art. 15(b) and (d) STL Statute; Rule 65(A)(iii) and (iv) STL RPE.
604
Art. 15(b) STL Statute.
605
Art. 15(a) STL Statute; Rule 65(A)(i) STL RPE, as amended in November 2010.
606
Rule 85 STL RPE.
607
Rule 50(4) ECCC IR.
608
Rule 162 STL RPE.
609
Murray v. UK, ECtHR, 8 February 1996, para. 63.
610
S.J. Summers, Fair Trials: the European Criminal Procedural Tradition and the
European Court of Human Rights (Oxford: Hart Publishing, 2007) 181. However, in Delalić,
the ICTY seems to read the right to counsel during interrogations in the case law of the
ECtHR: see Delalić et al., TC, ICTY, 2 September 1997, para. 50 et seq.
611
Murray v. UK, ECtHR, 8 February 1996, para. 66. Summers identifies two reasons why
the test is inadequate: (1) Every determination requires a hypothetical assessment of the
effect on future fairness or thorough retrospective examination of the influence of the pre-
trial factors on the fairness of the trial, consequently such test is of little use for criminal
justice authorities seeking guidance; (2) It disregards the importance of the fairness of the
investigation for the fairness of the trial: Summers (n 610) 182.
612
Murray v. UK, ECtHR, 8 February 1996, para. 62; Imbrioscia v. Switzerland, ECtHR, 24
November 1993, para. 38.
613
Salduz v. Turkey, ECtHR, 27 November 2008; see further Panovits v. Cyprus, ECtHR,
11 December 2008.
614
Salduz v. Turkey, ECtHR, 27 November 2008, para. 52 (emphasis added).
615
Salduz v. Turkey (n 614) para. 55.
616
Salduz v. Turkey (n 614) para. 55 (emphasis added).
617
618
619
Panovits v. Cyprus, ECtHR, 11 December 2008, para. 66; and Brusco v. France, ECtHR,
14 October 2010, para. 54.
620
Aliev v. Ukraine, HRC, 7 August 2003, para. 7.2; Concluding Observations of the HRC:
South Korea, 28 November 2006, para. 14. Also the UN Basic Principles on the Role of
Lawyers (OHCHR, 27 August–7 September 1990) clarify that the right of access to counsel
extends to all stages of criminal proceedings, including interrogations, presumably even
before formal arrest.
621
622
623
See section 3.1.1 A(vii).
624
Art. 14(3)(g) ICCPR and Art. 8(2)(g) and (3) ACHR.
625
Funke v. France, ECtHR, 25 February 1993, para. 44, and Murray v. UK, ECtHR, 8
February 1996, para. 45.
626
Saunders v. UK, ECtHR, 17 December 1996, para. 68.
627
Trechsel (n 261) 342.
628
O’Halloran and Francis v. UK, ECtHR, 29 June 2007, para. 53. Consider further J.
Jackson, ‘Re-Conceptualising the Right of Silence as an Effective Fair Trial Standard’ (2009)
58 International and Comparative Law Quarterly 835, 835–61 (critical of the Court’s
approach and arguing that the Court fails to clearly distinguish between the substantive
and procedural dimensions of the right).
629
Jalloh v. Germany, ECtHR, 11 July 2006, para. 117.
630
631
As will be explained, according to the case law of the ECtHR, ‘charge’ should be given
an autonomous interpretation (see section 3.1.1 B(i)(c) and the case law cited in the
accompanying footnotes).
632
Trechsel argues that from the moment a person is confronted with questions or with a
request for documents that could result in self-incrimination, that person is de facto
‘charged’, within the meaning of Art. 6 ECHR. In support, he refers to the Serves case, in
which the ECtHR applied the right to a witness, after it found that he could be considered
to be subject to a ‘charge’, in the meaning of Art. 6(1) (Serves v. France, ECtHR, 20 October
1997, para. 42). See Trechsel (n 261) 349.
633
Quite apart from the fact, as rightly stressed by the TC in the Delalić et al. case, there
is no legal basis for the drawing of adverse inferences provided for in either the Statute or
the RPE. According to Sluiter, the ‘over-protective approach’ of international criminal
procedure to the privilege against self-incrimination may be explained by the necessities of
the effective administration of justice. ‘Assistance from the accused, generally in the form of
a confession, is at the present stage of international criminal law not as important as in
domestic jurisdictions. There is not the situation of immediate arrest followed by
interrogation, offering a conducive environment for a confession. The general practice is for
an accused person to determine their defence strategy and adequately prepare for a trial
beforehand.’ A. Zahar and G. Sluiter, International Criminal Law: A Critical Introduction
634
Murray v. UK, ECtHR, 8 February 1996, para. 51.
635
Heaney and McGuinness v. Ireland, ECtHR, 21 December 2000, para. 55.
636
Murray v. UK, ECtHR, 8 February 1996, para. 46: ‘The Court does not consider that it is
called upon to give an abstract analysis of the scope of these immunities and, in particular,
of what constitutes in this context “improper compulsion”.’
637
Allan v. UK, ECtHR, 5 November 2002, paras 50–51.
638
Consider in particular Art. 14(3)(a) ICCPR; Art. 6(3)(a) ECHR; and Art. 8(2)(b) ACHR.
While the ICCPR and the ACHR speak of a right of the accused to know the charges against
him, the ECHR speaks of a right for the accused to be informed about the nature and cause
of the accusation against him.
639
Art. 14(3)(a) ICCPR; Art. 6(3)(a) ECHR.
640
Safferling (n 308) 121.
641
Adolf v. Austria, ECtHR, 26 March 1982, para. 30; see further Deweer v. Belgium,
ECtHR, 27 February 1980, paras 42 and 44; the receiving of a ‘notice of intended
prosecution’ in the UK was considered sufficient by the Court, see O’Halloran and Francis v.
UK, ECtHR, 29 June 2007, para. 35.
642
Corigliano v. Italy, ECtHR, 10 December 1982, para. 34.
643
Kamasinski v. Austria, ECtHR, 19 December 1989, para. 79.
644
See e.g. Mattei v. France, ECtHR, 19 December 2006, para. 36; Pélissier and Sassi v.
France, ECtHR, 25 March 1999, paras 52–54.
645
646
HRC General Comment 13, at 14.
647
M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR commentary, 2nd edn
(Kehl am Rein: Engel, 2005) 318–19.
648
Although it can be argued that information on the allegations at that early stage
provide the suspect with a possibility to influence the decision as to whether or not charges
will be laid.
649
Trechsel (n 261) 199–200.
650
Art. 14(3)(f) ICCPR; Art. 6(3)(e) ECHR; and Art. 8(2)(a) ACHR.
651
Kamasinski v. Austria, ECtHR, 19 December 1989, para. 74; Nowak, (n 647) 344.
652
Arts 55(1)(c) and 67(1)(f) ICC Statute.
653
Luedicke, Belkacem and Koç v. Germany, ECtHR, 28 November 1978, para. 48; Hermi
v. Italy, ECtHR, 18 October 2006, para. 69.
654
Harward v. Norway, HRC, 16 August 1994, para. 9.5.
655
Harward v. Norway (n 654) para. 9.4. It seems more problematic to include such a right
to translation of documents in Art. 14(3)(f) ICCPR as the travaux préparatoires show that
motions to include the translation of relevant written documents were rejected, see M.
Bossuyt, Guide to the Travaux Préparatoires of the ICCPR (Dordrecht, Nijhoff Publishers,
1987) 303.
656
Zappalà (n 9) 50. See Arts 55(1)(c) and 67(1)(f) ICC Statute (‘such translations as are
necessary to meet the requirements of fairness’).
657
Gerald John Griffin v. Spain, HRC, 5 April 1995, para. 9.5.
658
659
Kamasinski v. Austria (n 658) para. 11.
660
Arts 55(1)(c) and 67(1)(f) ICC Statute.
661
See 1984 Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (Art. 15 provides that: ‘Each State Party shall ensure that any
statement which is established to have been made as a result of torture shall not be invoked
as evidence in any proceedings, except against a person accused of torture as evidence that
the statement was made.’); 1987 European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (Council of Europe); Art. 7 ICCPR; Art. 3
ECHR; Art. 5 ACHR; Art. 5 ACHPR.
662
M.R. Damaška, Evidence Law Adrift (New Haven, CT/London: Yale University Press,
1997) 115; See further Damaška (n 272) 162.
663
See sections 3.1.1 A(ii) and (iii).
664
See section 3.1.1 B(i).
665
J.R. Cencich, ‘International Criminal Investigations of Genocide and Crimes Against
Humanity: a War Crimes Investigator’s Perspective’ (2009) 19 International Criminal Justice
Review 175, 179–80. In this article, the author, an ICTY lead investigator, discusses ten
problems encountered by war crimes investigators. Cencich states that ‘the use of modern
forensic interviewing techniques whereby leading questions and behavioural based
approaches are presented to criminal suspects are not always looked on favourably by
members of the ICTY who come from various criminal justice systems, whether common law
or civil law’.
666
J. Ross, ‘Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation
in the United States and Germany’ (2008) 28 Oxford Journal of Legal Studies 443, 455.
667
Damaška, Evidence Law Adrift (n 662) 97: ‘lawyers are prone to place greater faith
than is warranted in the power of cross-examination to expose testimonial distortions’.
668
Ross (n 666) 455.
669
German criminal procedure prohibits deceit, see §136a (1) and (3) Code of Criminal
Procedure (Germany); Ross (n 666) 456–9. While the prohibition on deceptive forms of
interrogation seems broad and not only includes lies but also misleading non-verbal
conduct, the rules do allow for the use of subterfuge; Weigend and Salditt (n 275) 84. On
the prohibition of deception in Dutch criminal procedure, see Art. 29(1) Code of Criminal
Procedure (Netherlands); G.J.M. Corstens, Het Nederlands Strafprocesrecht, 6th edn
(Deventer: Kluwer, 2008) 284.
670
I. Khasin, ‘Honesty is the Best Policy, A Case for the Limitation of Deceptive Police
Interrogation Practices in the United States’ (2009) 42 Vanderbilt Journal of Transnational
Law 1029, 1053. See Sections 76 and 78 of PACE 1984 and Sections 11 and 12 of the Code
of Practice for the Detention, Treatment, and Questioning of Persons by Police Officers (C).
671
See e.g. C. Slobogin, ‘An Empirically Based Comparison of American and European
Regulatory Approaches to Police Investigation’ (2001) 22 Michigan Journal of International
Law 423, 439–41; Ross (n 666) 451–4.
672
E.g. a confession was not excluded after the police had deceived the suspect by stating
that fingerprints were found at the crime scene (Oregon v. Mathiason, 429 US 492, 495–6.
(1977)), nor after a suspect was told that his colleague had confessed (Frazier v. Cupp, 394
US 731, 737–9 (1969)).
673
Ross (n 666) 443–74.
674
Ross (n 666) 444.
675
Ross (n 666) 444. According to Ross, the different stage at which information is filtered
in Germany and the US reflects the different purposes of these evidentiary rules. Whereas
the American evidentiary rules are primarily designed to prevent improper influences on
the jury, German investigative norms are designed to safeguard the rights of suspects.
676
Kupreškić et al., TC, ICTY, 21 September 1998, para. 3.
677
678
M. Damaška, ‘Problematic Features of International Criminal Procedure’, in A. Cassese
(ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University
Press, 2009) 176 (‘it is easier to proclaim these rules in a normative script than to realize
them in practice’).
679
Art. 8(a) IMTFE Charter.
680
Art. 16(d) and (e) IMT Charter; Art. 9(d) and (e) IMTFE Charter.
681
Art. 9(e) IMTFE Charter.
682
May and Wierda (n 4) 211–17; A. Sherman, ‘Sympathy for the Devil: Examining a
Defendant’s Right to Confront Before the International War Crimes Tribunal’ (1996) 10
Emory International Law Review 833, 864–5; On the admission of affidavits at the IMTFE,
see the testimony by B.V.A Röling and A. Cassese (eds), The Tokyo Trial and Beyond:
Reflections of a Peacemonger (Cambridge: Polity Press, 1993) 52.
683
In contrast, the Uniform Rules of Procedure of the Nuremberg trials contained a Rule
21 outlining certain conditions for witness statements, and witness statements that did not
comply with these conditions ‘were almost uniformly excluded’. See May and Wierda (n 4)
218–19.
684
As provided for under Art. 16(e) IMT Charter and Art. 9(d) IMTFE Charter. Whereas
the IMT in general allowed affidavits subject to calling the witness for cross-examination,
the IMTFE routinely admitted affidavits in the absence of an opportunity to examine the
affiant. See Boister and Cryer (n 321) 108–9 (concluding that the restriction of the Defence
to examine witnesses was unreasonable); E.J. Wallach, ‘The Procedural and Evidentiary
Rules of the Post-World War II War Crimes Trials: Did they Provide an Outline for
International Legal Procedure?’ (1999) 37 Columbia Journal of Transnational Law 851, 875.
685
Cf. section 3.1.1 A(ii)(a.2).
686
ICTY Manual on Developed Practices (Turin: UNICRI Publisher, 2009) 23.
687
See section 3.1.2 A(ii)(e).
688
See Chapter 7, section 3 A(ii).
689
Kordić and Čerkez, AC, ICTY, 21 July 2000, para. 27. The Appeals Chamber argued that
such statements differ from the courtroom setting, with professional, double-checked
translation. In casu, the Appeals Chamber found that there were no formal circumstances
that might increase its reliability, such as the hearing before an investigating Judge. In
Sesay, the TC emphasized that witnesses are often interviewed in rural, war-torn areas and
witnesses are often illiterate: see Sesay et al., TC, SCSL, 26 October 2005 (Decision on the
Joint Defence Motion Requesting Conformity of Procedural Practice for Taking Witness
Statements), para. 10.
690
S. Milošević, AC, ICTY, 30 September 2003 (diss. op. of Judge Hunt), para. 6.
691
Zappalà (n 9) 137.
692
Halilović, TC, ICTY, 5 July 2005, at 4.
693
Halilović (n 692) 4.
694
695
696
Rule 94ter was deleted and Rule 92bis was inserted at the 23rd Plenary (29 November–
1 December 2000). The former rule seemed unworkable and was deleted after two Appeals
Chamber decisions in Kordić: Kordić and Čerkez, AC, ICTY, 21 July 2000; Kordić and
Čerkez, AC, ICTY, 18 September 2000. See generally, M. Fairlie, ‘Due Process Erosion: The
Diminution of Live Testimony at the ICTY’ (2003) 34 California Western International Law
Journal 47.
697
G. Boas, The Milošević Trial: Lessons for the Conduct of Complex International
Criminal Proceedings (Cambridge: Cambridge University Press, 2007) 49. P.L. Robinson,
‘Fair but Expeditious Trials’, in H. Abtahi and G. Boas (eds), The Dynamics of International
Criminal Justice (Leiden: Martinus Nijhoff Publishers, 2006) 180 (calling Rule 92bis the
most ambitious and far-reaching of the expediting measures). Whether these procedural
reforms have in fact expedited trial proceedings and reduced the number of witnesses put
on the stand, is another question. Critical of such expediting effects of Rule 92bis are M.
Langer and J.W. Doherty, ‘Managerial Judging, Court’s Limited Information and Parties’
Resistance: An Empirical Research of why the Reforms to Expedite the Procedure of the
International Tribunal for the Former Yugoslavia did not Work’, Working Paper, 2009, at 34.
698
Rule 92ter ICTY RPE (IT/32/Rev. 39, 13 September 2006); Rule 92quater ICTY RPE (IT/
32/Rev. 39, 13 September 2006) and Rule 92quinquies ICTY RPE (IT/32/Rev. 44, 10
December 2009).
699
Art. 18(2) ICTY Statute, Art. 17(2) ICTR Statute, and Art. 15(2) SCSL Statute; Rule
39(i) ICTY, ICTR, and SCSL RPE.
700
Mrkšić et al., TC, ICTY, 1 September 2006, para. 3.
701
Arts 19(1) and 20(4)(b) and (e) ICTR Statute; Arts 20(1) and 21(4)(b) and (e) ICTY
Statute; Arts 17(4)(b) and (e) SCSL Statute. See D. Tadić, AC, ICTY, 15 July 1999, paras 43–
52.
702
Different distinctions can be found in the statutory documents. E.g. the RPE distinguish
between ‘expert witnesses’ and other witnesses (‘fact-witnesses’) (Rules 94bis and Rule
90(C) ICTY, Rules 94bis and Rule 90(D) ICTR and SCSL RPE). Other categories include
vulnerable witnesses (witnesses who may suffer from confrontation with the accused and/or
with the memory of the crime) or threatened witnesses (witnesses who have good reason to
fear violent reprisals (on behalf of the accused or by others) because of their testimony),
and insider witnesses (witnesses who have worked closely with, or in the same organization
as an accused person and who may give valuable information on the conduct of the
accused). The reliance on this last category of witnesses may prove indispensable for the
prosecution, see C. Del Ponte, ‘Investigation and Prosecution of Large-Scale Crimes at the
International Level: the Experience of the ICTY’ (2006) 4 JICJ 539, 544; M.B. Harmon and F.
Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered
by the Prosecutor in International Criminal Proceedings’ (2004) 2 JICJ 403, 408, note 11;
ICTY Manual (n 686) 20. Consider e.g. D. Tolbert and F. Swinnen, ‘The Protection of, and
Assistance to Witnesses at the ICTY’, in Abtahi and Boas (n 697) 196–9.
703
Indeed, the existence of such a privilege will arguably be more important in cases
where the witnesses can be compelled, by the prosecutor or by the defence, to be
interviewed.
704
Blaškić, AC, ICTY, 29 October 1997, paras 47–48.
705
Blaškić (n 704) para. 48: the Chamber continues that ‘Article 29 also imposes upon
states an obligation to take action required by the International Tribunal vis-à-vis
individuals subject to their jurisdiction’.
706
Blaškić (n 704) paras 39–45 and 49–51.
707
Krstić, AC, ICTY, 1 July 2003, para. 27. Dissenting, Judge Shahabuddeen expressed the
view that the Tribunal does not have the competence to subpoena a state official to testify
on what he or she has seen or heard. Interestingly, Judge Shahabuddeen referred to the
wording of Rule 54bis, which was adopted on 17 November 1997. This rule, he ‘reasonably
assumes’, was based on Blaškić and the judges who adopted the rule understood the ruling
as implying that information acquired by a state official in his or her official capacity could
only be obtained from the state and not from the state official, either through a binding
order or through a subpoena (see Krstić, AC, ICTY, 1 July 2003 (diss. op. of Judge
Shahabudden), para. 5).
708
Consider in this regard: Norman et al., TC, SCSL, 13 June 2006 (diss. op. of Hon.
Justice Bankole), paras 6–7. In contrast, it would be difficult to subpoena witnesses residing
in other states, where these states are not party to the SCSL Agreement. For a similar view,
see G. Sluiter, ‘Legal Assistance to Internationalized Criminal Courts’, in C.P.R. Romanoet
al. (eds), Internationalized Criminal Courts: Sierra Leone, East-Timor, Kosovo and Cambodia
(Oxford: Oxford University Press, 2004) 401, note 66.
709
E.g. Mrkšić, AC, ICTY, 30 July 2003, para. 15; Karemera et al., TC, ICTR, 30 October
2006, para. 7.
710
Krstić, AC, ICTY, 1 July 2003; Halilović, AC, ICTY, 21 June 2004.
711
Krstić, AC, ICTY, 1 July 2003, paras 10 and 17; Halilović, AC, ICTY, 21 June 2004, para.
5; Karemera et al., TC, ICTR, 12 July 2006, para. 9. Interestingly, Judge Shahabuddeen
disagreed with the majority on this particular point. While he agreed that the Chamber has
the power to facilitate the attendance of a potential witness at a defence interview (by
removing any obstacles), he did not agree that the Chamber has a power to compel such
attendance. See Krstić, AC, ICTY, 1 July 2003 (diss. op. of Judge Shahabuddeen) and
Halilović, AC, ICTY, 21 June 2004 (dec. of Judge Shahabuddeen). The ‘purpose-
requirement’ (for the preparation or conduct of trial) may imply that the possibility to
compel witnesses to attend pre-trial witness interviews is limited to the post-indictment
stage. For a similar view, consider Alamuddin (n 449) 252.
712
Krstić, AC, ICTY, 1 July 2003, para. 10. The assessment is based mainly on the position
held by the prospective witness in relation to the events, any relationship he or she has or
had to the accused and which is relevant to the charges, the opportunity he or she may
reasonably have had to observe or learn about the events, and any statement made by him
or the prosecution or others in relation to those events.
713
Krstić (n 712) para. 11.
714
Karemera et al., TC, ICTR, 12 July 2006, para. 9.
715
Karemera (n 714) para. 17.
716
Halilović, AC, ICTY, 21 June 2004, para. 7.
717
E.g. the Tribunals have declined to honour requests where there is no prospect of the
necessary cooperation, see e.g. Nzirorera et al., TC, ICTR, 20 October 2003, para. 22.
718
Karemera et al., TC, ICTR, 12 July 2006, para. 9; Karemera et al., TC, ICTY, 10 February
2009, para. 4; Karemera et al., TC, ICTR, 24 March 2009 (Decision on Nzirorera’s Motion
for Subpoena to Jean-Marie Vianney Mudahinyuka), para. 3; Nshogoza, TC, ICTR, 10
February 2009 (Decision on the Defence’s Urgent Motion for a Subpoena to Ms Loretta
Lynch), para. 4; Bagosora et al., TC, ICTR, 23 June 2004, para. 10.
719
Krstić, AC, ICTY, 1 July 2003, para. 8; however, consider also Krstić, AC, ICTY, 1 July
2003 (diss. op. of Judge Shahabuddeen), para. 33.
720
W.A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia,
Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006) 356.
721
Besides, the ICTY Manual on Developed Practices includes some ‘best practices’, see
ICTY Manual (n 686).
722
Rule 39(i) ICTY RPE, ICTR RPE, and SCSL RPE.
723
Rule 66(A)(ii) ICTY RPE, ICTR RPE, and SCSL RPE.
724
Hartmann, TC, ICTY, 29 January 2009.
725
Hartmann (n 724) para. 6.
726
Hartmann (n 724) para. 8.
727
Art. 20(4)(b) ICTR Statute; Art. 21(4)(b) ICTY Statute; Art. 17(4)(b) SCSL Statute.
728
ICTY Manual (n 686) 23 et seq.; Hartmann, TC, ICTY, 29 January 2009, para. 7.
729
Niyitegeka, AC, ICTR, 9 July 2004, paras 31–32; see further Sesay et al., TC, SCSL, 26
October 2005 (Decision on the Joint Defence Motion Requesting Conformity of Procedural
Practice for Taking Witness Statements), paras 27–28.
730
Niyitegeka, AC, ICTR, 9 July 2004, para. 31. Whether the statement is redacted in the
‘first person’ or ‘third person’ goes more to the form than the substance. See Norman et al.,
TC, SCSL, 16 July 2004, para. 22.
731
Niyitegeka, AC, ICTR, 9 July 2004, para. 31.
732
Niyitegeka (n 731) para. 32.
733
Zigiranyirazo, TC, ICTR, 6 July 2006, para. 14.
734
Niyitegeka, AC, ICTR, 9 July 2004, para. 32.
735
See section 3.1.1 A(ii).
736
Niyitegeka, AC, ICTR, 9 July 2004, para. 36; Consider further Musema, TC, ICTR, 27
January 2000, para. 67 and Norman et al., AC, SCSL, 11 March 2005, para. 24 (holding that
a signature is an important parameter to assess the authenticity of the statement, which is
central to the credibility and reliability of documentary evidence).
737
Within the ICTR OTP, an investigator handbook detailing the standard operating
procedure for the taking of statements was reportedly created in 2001, but it is not publicly
available; see P. Van Tuyl, ‘Effective, Efficient and Fair: An Inquiry into the Investigative
Practices of the Office of the Prosecutor at the Special Court for Sierra Leone’, War Crimes
Studies Center, University of California Berkeley, 2008, at 36, citing an interview with
former SCSL Prosecutor Stephen Rapp.
738
ICTY Manual (n 686) 23. It is also good practice that investigators, instead of
prosecutors, take the witness statement to allow them to testify on the circumstances of
statement-taking. Care should be taken about the questioning of traumatized witnesses and
the risk of social or cultural stigma of victims of sexual assault. Before the start of the
interview, the witness should be asked for identification.
739
Nshogoza, TC, ICTR, 10 February 2009 (Decision on Defence Motion for Order to
Prosecutor to Comply with his Disclosure Obligations and Motion for Stay of Proceedings
Due to the On-going Violations of the Prosecutor’s Disclosure Obligations), para. 11.
740
ICTY Manual (n 686) 24.
741
742
At trial, the witness is in principle required to make a solemn declaration, see Rule
90(A) ICTY RPE, ICTR RPE, and SCSL RPE. Under the former Rule 94ter ICTY RPE, for
prior witness statements to be admissible in evidence, these statements had to be affidavits
or formal statements taken in accordance with the law and procedure of the state in which
they were signed. In compliance with these requirements, over 50 affidavits were admitted
into evidence in the Kordić case, in corroboration of witness that testified live. See Kordić
and Čerkez, TC, ICTY, 9 October 2000. After the adoption of Rule 92bis on the admission of
witness statement, Rule 94ter became useless and was hence deleted. See Eighth Annual
Report of the ICTY, UN Doc. A/56/352, 17 October 2001, para. 51.
743
Rule 71 ICTY RPE, ICTR RPE, and SCSL RPE. Rule 71 does not preclude depositions
being taken prior to the commencement of the trial, see Naletilić and Martinović, TC, ICTY,
10 November 2000 (Decision on Prosecution’s Motion to take Deposition for use at Trial
(Rule 71)), at 5.
744
The exception is again the scenario of the taking of a deposition. In such case, the
refusal to answer questions can be punished under the Rules.
745
The ICTY, ICTR, and SCSL RPE include the power to hold a witness in contempt if he or
she contumaciously refuses or fails to answer a question (Rule 77(A)(i) RPE).
746
See section 3.1.2 A(ii)(d).
747
Krstić, AC, ICTY, 1 July 2003, para. 12.
748
See e.g. in Germany: Law on Cooperation with the International Tribunal in respect of
the Former Yugoslavia (Law on the International Yugoslavia Tribunal), 10 April 1995, §4(4);
Norway: Act No. 38 of 24 June 1994 relating to the incorporation into Norwegian law of the
United Nations Security Council Resolution on the establishment of international tribunals
for crimes committed in the former Yugoslavia and Rwanda, 24 June 1994, Section 3;
Switzerland: Federal order on cooperation with the International Tribunals for the
Prosecution of Serious violations of International Humanitarian Law, 21 December 1995,
Art. 22; Finland: Act on the Jurisdiction of the International Tribunal for the Prosecution of
Persons Responsible for Crimes Committed in the Territory of the Former Yugoslavia and on
Legal Assistance to the International Tribunal, 5 January 1994, Section 5.
749
Rule 90(E) ICTY RPE, ICTR RPE, and SCSL RPE. Given that this provision is to be
found under Part VI on ‘proceedings before Trial Chambers’, its application to the pre-trial
phase is precluded. At least one commentator holds the view that the ‘right not to
incriminate oneself or confess guilt’ applies also to witnesses. It is correct that a ‘right to
remain silent’ applies to suspect interviews. Such right not only follows from the
jurisprudence, but is laid down in Rule 42(A)(iii) ICTY RPE, ICTR RPE, and SCSL RPE.
However, as far as witness interviews are concerned, it is the opinion of these authors that
the existence of such guarantee is not certain. See Alamuddin (n 449) 262.
750
The Chamber retains the power to compel the witness to answer the question. In such
case, the evidence received cannot be used in any subsequent prosecution for any offence
other than false testimony (ICTY) or perjury (ICTR) or false testimony under solemn
declaration (SCSL).
751
Martić, TC, ICTY, 19 January 2006, para. 9. For a detailed discussion, see section 3.1.1
A(ii).
752
At least one author holds that this jurisprudence does apply, see Alamuddin (n 449)
262–8.
753
754
Arts 93(1) and 99(1) and (4) ICC Statute.
755
756
757
C. Kreß and K. Prost, ‘Article 99’, in Triffterer (ed.), Commentary on the Rome Statute
1624. National authorities may allow the prosecution investigators to interview witnesses
without their participation also where the mentioned condition is not fulfilled, but only
where national law so allows. See further Alamuddin (n 449) 249.
758
Art. 99(4)(a) and (b) ICC Statute.
759
In accordance with Art. 99(1) ICC Statute. For a discussion of the formal requirements,
see section 3.1.2 A(iii)(f).
760
Art. 69(2) ICC Statute juncto Rule 68 ICC RPE. These conditions are more stringent
than the requirements for the use of prior recorded evidence at the ad hoc Tribunals.
761
Rule 68(a) ICC RPE. Prior written witness statements are also covered by the
provisions as ‘other documented evidence’, see Lubanga, TC, ICC, 15 January 2009, para.
18.
762
Rule 68(b) ICC RPE. It may be important for the prosecution to indicate in a request for
the taking of a witness statement that certain persons should be permitted to be present
and be allowed to assist in the interviewing process.
763
764
Art. 56 ICC Statute; Rule 114 ICC RPE.
765
Art. 56(2)(e) ICC Statute.
766
Friman (n 503) 156; F. Guariglia and G. Hochmayer, ‘Article 56: Role of the Pre-Trial
Chamber in Relation to a Unique Investigative Opportunity’, Triffterer (ed.), Commentary
on the Rome Statute 1110.
767
Art. 15(2) ICC Statute and Rule 104(2) ICC RPE.
768
Art. 67(1)(b) and (e) ICC Statute.
769
770
Art. 93(1)(a) and (b) ICC Statute.
771
Art. 93(1)(c) ICC Statute.
772
Rule 65, ICC RPE. This is subject to Rule 73 (privileged communication and
information), Rule 74 (self-incrimination by a witness), and Rule 75 (incrimination by family
members).
773
International Crimes Act, Act No. 16, 2008 (Kenya), available at <http://
www.kenyalaw.org/kenyalaw/klr_app/frames.php>. The power to compel a person’s
appearance for questioning, of course, should be distinguished from the absence of a power
to compel a person to incriminate him or herself (see Section 80 of the Act). See also
discussion on the interpretation and application of these provisions in Situation in Kenya,
PTC II, ICC, 31 January 2011.
774
G. Sluiter, ‘“I Beg You, Please Come Testify”—The Problematic Absence of Subpoena
Powers at the ICC’ (2009) 12 New Criminal Law Review 590, 600; K. Ambos, ‘The Right of
Non-Self-Incrimination of Witnesses Before the ICC’ (2002) 15 Leiden Journal of
International Law 155, 169; Schabas, The International Criminal Court 768; C. Kreß and K.
Prost, ‘Article 93: Other Forms of Cooperation’, in Triffterer (ed.), Commentary on the Rome
Statute 1576; Kreß (n 142) 616; R. Rastan, ‘Testing Co-operation: The International
Criminal Court and National Authorities’ (2008) 21 Leiden Journal of International Law 431
, 436.
775
Rule 68(a) ICC RPE.
776
It has been argued that the outlining of such rights reflects a move away from the
traditional focus in national justice systems on the duties of witnesses and an understanding
of witnesses as ‘participants’ in the criminal process rather than mere sources of evidence,
see C. Kreß, ‘Witnesses in Proceedings Before the International Criminal Court’, in Fischer
et al. (n 503) 310.
777
Art. 55(1)(a) ICC Statute; see Schabas, The International Criminal Court 686; Hall (n
503) 1093.
778
Schabas, The International Criminal Court 686.
779
Regulation 40(c) of the OTP Regulations. See further Katanga and Ngudjolo, PTC, ICC,
20 March 2008, para. 21 (Transcript).
780
Such an assurance of immunity from use is without prejudice to possible offences
against the administration of justice under Arts 70–71. See Rule 74(3)(c)(ii) ICC RPE. See
further Kreß (n 776) 330.
781
Rule 74 mentions the Prosecutor and defence counsel only with respect to raising the
issue of potential self-incrimination in the testimony of a witness (Rule 74(8) and (9) ICC
RPE). See further Katanga and Ngudjolo, TC, ICC, 3 May 2011, para. 24.
782
See further Ambos (n 774) 157.
783
Cf. Rule 65 and Rule 171 ICC RPE. According to Regulation 40 of the ICC Regulations
of the Prosecutor, the witness should be informed, before the commencement of the
interview, of the voluntary nature of the interview and the possibility to conclude it at any
time. This may be a further indication that the right against self-incrimination of witnesses
applies without limitation during the investigation.
784
Art. 71(1) ICC Statute, juncto Rule 65 ICC RPE, and Rule 171 ICC RPE.
785
Art. 54(3)(d)–(e) ICC Statute.
786
See, inter alia, section 3.1.1 A(iii)(b.3) and (b.5).
787
Kreß and Prost (n 774) 1575;C. Kreß and B. Broomhall, ‘Implementing Cooperation
Duties under the Rome Statute: A Comparative Synthesis’, in C. Kreß et al. (eds), The Rome
Statute of the International Criminal Court and Domestic Legal Orders, Vol. II:
Constitutional Issues, Cooperation and Enforcement (Baden-Baden: Nomos
Verlagsgesellschaft, 2005) 527.
788
Rule 111(1) ICC RPE. Rule 111 ICC RPE refers to a ‘formal statement’ resulting from
the questioning of a witness. Hence, there is no obligation to record pre-interview
assessments. See Bemba, TC, ICC, 9 April 2010, para. 31.
789
Also required are the signatures of the defence counsel and of the prosecutor or judge,
if present.
790
791
Katanga and Ngudjolo, TC, ICC, 25 November 2009, at 13.
792
Section 7.4(b) TRCP.
793
S. Linton and C. Reiger, ‘The Evolving Jurisprudence and Practice of East Timor’s
Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior
Orders’ (2001) 4 Yearbook of International Humanitarian Law 1, 30; Reiger and Wierda (n
170) 29.
794
See Judicial System Monitoring Programme, ‘The General Prosecutor v. Joni Marques
and Nine Others (The Los Palos Case)’, March 2002.
795
Section 14.3(a) TRCP.
796
Section 14.3(c) TRCP.
797
Section 35.3 juncto 35.7 TRCP.
798
Rule 50(4) ECCC IR.
799
Art. 23 new ECCC Law; Rule 55(5)(a) ECCC IR. According to Rule 55(5)(b) ECCC IR,
the co-investigating judges may also take the appropriate measures to provide for the safety
and support of potential witnesses and other sources.
800
Rules 55(9), 15 and 16 ECCC IR.
801
Art. 23 new ECCC Law.
802
According to Art. 136 Code of Criminal Procedure (Cambodia): ‘Le procureur du
Royaume peut assister à tous les actes d’instruction, en particulier aux interrogatoires du
mis en examen, confrontations et auditions.’ See further Art. 151 Code of Criminal
Procedure (Cambodia).
803
Rule 58(4) ECCC IR.
804
Rules 55(10), 58(6), and 66(1) ECCC IR. In general, the defence are prohibited from
conducting their own investigations, see Nuon Chea et al., OCIJ, ECCC, 10 January 2008, at
2 (‘The capacity of the parties to intervene is thus limited to such preliminary inquiries as
are strictly necessary for the effective exercise of their right to request investigative
action’).
805
The minimum time between the issuance of the summons and the appearance of the
witness should normally be five days. However, this period can be shorter in case the co-
investigating judges are conducting interviews in the field or in ‘exceptional circumstances’.
806
Rule 60(3) ECCC IR.
807
Rule 35(1)(b) ECCC IR. The co-investigating judges may deal with the matter
summarily, conduct further investigations to determine whether sufficient grounds can be
found to initiate proceedings, or choose to refer the matter to the competent authorities of
the UN or the Kingdom of Cambodia, see Rule 35(2) ECCC IR.
808
Rule 24(1) ECCC IR.
809
Rule 36 ECCC IR. See further Rule 35(2) ECCC IR.
810
Rule 25(4) ECCC IR. See section 3.1.1 A(v)(b).
811
Rule 26 ECCC IR. The requirements are that a testimony in person is not possible and
that the measure is not inconsistent with the rights of the defendant.
812
Rule 27 ECCC IR.
813
Rule 55(7) ECCC IR.
814
Art. 242 Code of Criminal Procedure (Cambodia). This article provides that the procès-
verbal should reflect truthfully the questions put to the witness, the answers given, and the
spontaneous declarations made by the witness in the course of the interview.
815
See the glossary annexed to the IR; Rule 59(1) ECCC IR.
816
Rule 59(2) ECCC IR. If the counsel fails to be present, the interview may continue, but
the absence of counsel should be noted in the record.
817
Rule 59(5) ECCC IR.
818
Rule 59(4) ECCC IR.
819
The civil party shall: (a) expressly agree to the interrogation, which shall be noted in
the written record of interview; (b) waive the presence of the lawyer, if there is one, which
shall be recorded separately; (c) be questioned in the absence of any other parties. See
Rules 62(3)(b) and 59(6) ECCC IR.
820
Rule 28 ECCC IR.
821
Rule 28(1) ECCC IR.
822
Rule 28(2) ECCC IR.
823
Rule 28(3) ECCC IR.
824
Rule 28(5) ECCC IR. The circumstances include: the importance of the anticipated
evidence, whether the same evidence can be acquired elsewhere, and whether, in the
particular circumstance of the case, sufficient protection is available.
825
Rule 28(7) ECCC IR. The possible measures include: ordering that evidence is given in
camera, ordering that the evidence will not be disclosed, subject to contempt, advising the
parties and representatives of the consequences of a breach, ordering the sealing of the
records of the proceedings, as well as ordering protective measures. The possibility to give
evidence in camera is an exception to the principle of publicity (Rule 79(6) ECCC IR) and
should therefore be narrowly construed.
826
Rule 24(2) ECCC IR.
827
Rule 28(9) ECCC IR.
828
Rule 30 ECCC IR.
829
Rule 21(3) ECCC IR. See section 3.1.1 A(v)(b).
830
Art. 11(5) STL Statute and Rule 61(i) STL RPE.
831
Rules 14 and 18(B) STL RPE.
832
Rules 16(B)–(C) and 18(B)–(C) STL RPE (as amended on 5 June and 30 October 2009).
An obligation for Lebanon to cooperate with all organs of the STL is laid down in Art. 15
STL Agreement. Different from the ad hoc Tribunals, third states are under no obligation to
cooperate with the STL under SC Resolution 1757. See further, B. Swart, ‘Cooperation
Challenges for the Special Tribunal for Lebanon’ (2007) 5 JICJ 1153, 1154–60; B.M. Gillet
and M. Schuster, ‘The Special Tribunal for Lebanon Swiftly Adopts Its Rules of Procedure
and Evidence’ (2009) 7 JICJ 885, 905–6; STL RPE: Explanatory Memorandum, 20 March
2009, para. 22.
833
834
Rule 77(B) STL RPE (as amended on 5 June 2009).
835
Art. 2 STL Agreement; Art. 8(1)(a) STL Statute.
836
STL RPE: Explanatory Memorandum, 25 November 2010, para. 11; Gillet and Schuster
(n 832) 889.
837
The Pre-Trial Judge can take such measures as are necessary to ensure the integrity of
the proceedings and the equality of arms, see Rule 89(I) STL RPE.
838
Rule 92(A) STL RPE.
839
Rule 92(C) STL RPE. This decision by the Pre-Trial Judge is subject to appeal as of right
(Rule 92(D)).
840
Rule 93 STL RPE.
841
Rule 93(B) STL PRE.
842
Rule 93(C) STL RPE.
843
Rule 93(D) STL RPE.
844
Rule 123 STL RPE. There is an apparent inconsistency between Rule 123(A), which
seemingly excludes the possibility for the Pre-Trial Judge to take such order proprio motu,
and Rule 123(C). If a state objects to the procedure of deposition taking, Rule 125 STL RPE
provides for an alternative collection of the evidence by the judicial authorities of the
country concerned, on the basis of a bilateral agreement or an ad hoc arrangement. The
party calling the witness and the other party and, if considered necessary by the Pre-Trial
Judge or the Chamber, the legal representatives of the victim, should be allowed to be
present during the questioning (Rule 125(B) STL RPE).
845
Rule 124 STL RPE.
846
847
Rule 155 STL RPE. Some factors for and against the admission of such evidence are
listed in Rule 155(A)(i)–(ii).
848
Rule 155(B) STL RPE.
849
Rule 156 STL RPE.
850
Rule 155(C) STL RPE.
851
Rules 158 and 159 STL RPE.
852
STL Practice Direction on the Procedure for Taking Depositions under Rule 123 and
157 and for Taking Witness Statements for Admission in Court under Rule 155, 15 January
2010; issued pursuant to Rule 32(E) STL RPE.
853
STL Practice Direction (n 852) Art. 1(5).
854
855
856
Rules 150(F) and 60bis(A)(ii) STL RPE.
857
Rules 77(A) and 78 STL RPE. Jurisprudence on this matter is lacking. Following a
request by a party, the Chamber or Pre-trial Judge may request the Registrar to issue a
safe-conduct, Rule 81 STL RPE.
858
Rules 60bis(A)(ii) and 150(F) STL RPE.
859
Rule 152(H) juncto Rules 93, 123, 125, 155, 156, 157, and 158 STL RPE. However, Rule
152 refers to statements taken ‘under solemn declaration’, while witnesses interviewed by
the parties will normally not make a ‘solemn declaration’.
860
See Rule 60bis(A)(i) STL RPE.
861
862
See section 3.1.1 B(i)(b).
863
See e.g. Saunders v. UK, ECtHR, 17 December 1996, para. 68.
864
865
Serves v. France, ECtHR, 20 October 1997, para. 42.
866
Ambos (n 774) 161; K. Rogall, Der Beschuldigte als Beweismittel gegen sich selbst: Ein
Beitrag zur Geltung des Satzes ‘Nemo tenetur seipsum prodere’ im Strafprozess (Berlin:
Duncker & Humblot, 1977) 117.
867
D. Tadić, TC, ICTY, 27 November 1996 (diss. op. of Judge McDonald), para. 32, note 4.
868
Tadić (n 867) para. 32, note 4, stating that the ECtHR case cited by the defence (Funke)
did not support the defence’s argument as it did not deal with witness statements.
869
Art. 14(3)(e) ICCPR; Art. 6(3)(d) ECHR; Art. 8(2)(f) ACHR.
870
Lüdi v. Switzerland, ECtHR, 15 June 1992, para. 47. See further, inter alia, S.N. v.
Sweden, ECtHR, 2 July 2002, para. 49; Vozhigov v. Russia, ECtHR, 28 July 2007, para. 51;
Caka v. Albania, ECtHR, 8 December 2009, para. 101.
871
Sluiter (n 774) 602.
872
X. v. Federal Republic of Germany, ECommHR, 4 July 1979, 231.
873
A.M. v. Italy, ECtHR, 14 March 2000, para. 25.
874
Mild and Virtanen v. Finland, ECtHR, 26 July 2005, para. 42; mutatis mutandis,
Doorson v. The Netherlands, ECtHR, 26 March 1996, para. 76; van Mechelen and Others v.
Netherlands, ECtHR, 23 April 1997, para. 55.
875
See further in Chapter 7 on the application of Rule 92bis (including difficulties in
defining ‘acts and conduct of the defendant’), as well as the erosion of the defendant’s right
to cross-examine witnesses as a consequence of the increasing admission of witness
statements at trial.
876
Cf. K. Ambos, ‘International Criminal Procedure: Adversarial, Inquisitorial, or
Mixed?’ (2003) 3 International Criminal Law Review 1, 31.
877
S.N. v. Sweden, ECtHR, 2 July 2002, para. 49.
878
879
Solakov v. The Former Yugoslav Republic of Macedonia, ECtHR, 31 October 2001.
880
Solakov (n 879) paras 60 and 62.
881
882
Damaška (n 272) 53–4.
883
Damaška (n 272) 164–5.
884
885
886
See e.g. De Hemptinne proposing the intervention of a third party in the investigation
to compile a neutral case file; J. De Hemptinne, ‘The Creation of Investigating Chambers at
the International Criminal Court’ (2007) 5 JICJ 402, 407. Also Higgins has suggested the
creation of an independent investigation commission in international criminal proceedings
which would assist in the investigation process and could interview witnesses, see G.
Higgins, ‘Fair and Expeditious Pre-Trial Proceedings’ (2007) 5 JICJ 394, 396. Both proposals
are based on considerations of fairness, expeditiousness, and legitimacy rather than on the
fulfilment of goals or objectives of international criminal justice.
887
M. Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chicago-
Kent Law Review 329, 337.
888
Damaška (n 887) 337. Damaška notes that ‘the more complex the investigated question,
the more partisan polarisation becomes a straightjacket to historians’.
889
890
Kordić and Čerkez, TC, ICTY, 25 June 1999, at 6. In that case, no search warrant had
been obtained from the authorities of Bosnia Herzegovina but a search warrant had been
issued by an ICTY Judge prior to the search operation. The prosecutor relied on the
assistance of the SFOR international forces. See further Kordić and Čerkez, TC, ICTY, 31
May 1999 (transcript), at 2975–3045, and Naletlić and Martinović, AC, ICTY, 3 May 2006,
para. 238.
891
Blaškić, AC, ICTY, 29 October 1997, paras 53 and 55. Only a few laws on the domestic
implementation of the Statutes include the possibility for the prosecutor to work
independently on their territory. E.g. the German implementing law includes this possibility
but explicitly prohibits the taking of coercive measures and states that ‘the initiation and
execution of coercive measures shall remain the preserve of the competent German
authorities and shall conform to German law’. See Section 4(4) Law on Cooperation with
the International Tribunal in respect of the Former Yugoslavia (Law on the International
Yugoslavia Tribunal) of 10 April 1995. The Norwegian implementing law allows the
prosecutor to work independently on its territory, but only once granted permission to do
so. See Section 3in fine Act No. 38 of 24 June 1994 Relating to the Incorporation into
Norwegian law of the United Nations Security Council Regulation on the Establishment of
International Tribunals for Crimes Committed in the Former Yugoslavia and Rwanda. Also
the Finnish implementing law provides for the possibility to operate independently on its
territory. See Act on the Jurisdiction of the International Tribunal for the Prosecution of
Persons Responsible for Crimes Committed in the Territory of the Former Yugoslavia and on
Legal Assistance to the International Tribunal, 5 January 1994, Section 7.
892
Blaškić, AC, ICTY, 29 October 1997, para. 55. See further Gotovina et al., TC, ICTY, 12
March 2010, para. 30. No further explanation for such distinction between the states or the
entities of the former Yugoslavia and other UN member states was given. See further,
Alamuddin (n 449) 256 and 259, and A. Zahar, ‘International Court and Private
Citizen’ (2009) 12 New Criminal Law Review 569, 576–7.
893
Safferling (n 308) 159; K. De Meester, ‘Coercive Measures, Privacy Rights and Judicial
Supervision in International Criminal Investigations: In Need of Further Regulation?’, in G.
Sluiter and S. Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of
Law (London: Cameron May, 2009) 281.
894
Stakić, TC, ICTY, 31 July 2002, at 2.
895
See e.g. Taylor, TC, SCSL, 19 January 2009 (transcript), at 22998 et seq. (referring to a
request by the SCSL Prosecutor to the Liberian authorities to conduct lawful searches at a
former residence of Charles Taylor (White Flower)).
896
See section 3.2 A(ii)(a).
897
Karadžić, Duty Judge, ICTY, 11 September 2003.
898
ICTY Manual (n 686) 18. Apparently, ‘lengthy internal guidelines’, which are not public,
cover the legal procedures for search warrant applications.
899
See section 3.2 A(ii)(a).
900
Ntabakuze, TC, ICTR, 25 September 1998, at 7.
901
E.g. Bagosora et al., TC, ICTR, 25 May 2004, paras 6–7; A. Bizimungu et al., TC, ICTR,
7 June 2006, paras 6–7; Bagosora et al., TC, ICTR, 7 February 2005, para. 5.
902
S. Milošević, AC, ICTY, 1 November 2004, para. 17.
903
Milošević (n 902) para. 17. See further Krajišnik, AC, ICTY, 11 May 2007, para. 69.
904
Stakić, TC, ICTY, 5 July 2002, at 4. See further Swoboda (n 349) 391.
905
906
Stakić (n 905) 4.
907
Hadžihasanović and Kubura, TC, ICTY, 19 December 2001 (Decision Granting
Provisional Release to Enver Hadžihasanović); Hadžihasanović and Kubura, TC, ICTY, 19
December 2001 (Decision Granting Provisional Release to Mehmed Alagić); Hadžihasanović
and Kubura, TC, ICTY, 19 December 2001 (Decision Granting Provisional Release to Amir
Kubura); Limaj et al., AC, ICTY, 31 October 2003, para. 13. See further Blagojević et al., TC,
ICTY, 22 July 2002. In relation to a change in the detention conditions, see Norman,
President, SCSL, 23 July 2003; Mrđa, TC, ICTY, 15 April 2002, para. 31.
908
It may be noted that the same German judge was presiding in the Hadžihasanović and
Kubura, TC and the Limaj et al. Appeals Chamber. On the three-pronged test, see W. Van
Gerven, ‘The Effect of Proportionality on the Actions of the Member States’, in E. Ellis, The
Principle of Proportionality in the Laws of Europe (Oxford/Portland, OR: Hart Publishing,
1999) 44–5.
909
910
Rule 54 ICTY RPE, ICTR RPE, and SCSL RPE; See further Delalić et al., ICTY, 11
November 1996, paras 38–39.
911
Consider Art. 17(2) of the ICTR Statute; Art. 18(2) ICTY Statute; Rule 39(i) and (iv)
ICTY, ICTR, and SCSL RPE.
912
Art. 17(1) ICTR Statute, Art. 18(1) ICTY Statute. No comparable threshold exists in the
SCSL Statute. See further Chapter 2.
913
Naletlić and Martinović, AC, ICTY, 6 October 2005, para. 23.
914
915
Kreß (n 142) 615.
916
See Gotovina et al., AC, ICTY, 14 February 2011, paras 35–36 and 68.
917
Remarkably, these investigations followed an administrative investigation undertaken
by Croatia into the missing documents pursuant to an order by the ICTY Trial Chamber at
the prosecutor’s request. Consider the interim order for Croatia to stop, until further notice,
all inspections of the contents of all documents and other objects that was issued by the TC
on 11 December 2009, see Gotovina et al., TC, ICTY, 11 December 2009 (transcript), at
26160–1. A written decision stating reasons for the oral order of 11 December was issued
on 18 December 2009. See Gotovina et al., TC, ICTY, 18 December 2009 (Decision on
Requests for Temporary Restraining Orders Directed to the Republic of Croatia and
Reasons for the Chamber’s Order of 11 December 2009).
918
As codified in Art. 22 1961 Vienna Convention on Diplomatic Relations.
919
C. Kreß and K. Prost, ‘Article 98: Cooperation With Respect to Waiver of Immunity and
Consent to Surrender’, in Triffterer (ed.), Commentary on the Rome Statute 1607. Consider
further Sluiter (n 510) 172.
920
H. Friman, ‘Immunity of Property’, in A. Cassese, The Oxford Companion to
International Criminal Justice (Oxford: Oxford University Press, 2009) 370.
921
At the SCSL, it appears to be practice that an inventory form for seized items is served
on the national authorities of the state requested to execute an arrest warrant, see e.g.
Sesay et al., SCSL, Registry, 18 March 2003.
922
Rukundo, TC, ICTR, 20 November 2002, para. 10.
923
Rule 41(B) ICTR RPE as amended during the Tenth Plenary Session, Arusha, 30–31 May
2001; Sixth Annual Report of the ICTR, UN Doc. A/56/351, 14 September 2001, at 13.
924
Ruggiu, TC, ICTR, 7 July 1998, at 6. The TC labels this a ‘general principle of fairness’
which the prosecutor is bound to apply pursuant to Rule 5 ICTR RPE.
925
Rule 41(B) SCSL RPE.
926
927
E.g. Nzirorera, TC, ICTR, 7 September 2000, paras 29–31; Ngirumpatse, TC, ICTR, 10
December 1999, paras 54–56; Kabiligi, TC, ICTR, 5 October 1998, at 3.
928
Rule 47(H)(i) ICTY RPE, ICTR RPE, and SCSL RPE juncto Art. 19(2) ICTY Statute, Art.
18(2) ICTR Statute.
929
Nyiramasuhuko, TC, ICTR, 12 October 2000, para. 24.
930
Nyiramasuhuko (n 929) paras 22–23. The TC added that where search and seizure
operations by nature infringe upon fundamental rights, ‘most legal systems make any
operation of this type conditional upon explicit judicial authorization, which may take the
form of a warrant, an order, or rogatory letters’.
931
Muvunyi, TC, ICTR, 26 April 2006, para. 24. The Chamber refers to Sections 17(1)(a)
and 18(1)–(2) PACE 1984 (England).
932
Muvunyi (n 931) para. 25.
933
Ngirumpatse, TC, ICTR, 10 December 1999, para. 56. See further Nzirorera, TC, ICTR,
September 2000, para. 2; Karemera, TC, ICTR, 10 December 1999, para. 4.2; Nzirorera, TC,
ICTR, September 2000, para. 27; Kajelĳeli, TC, ICTR, 8 May 2000, paras 34–35.
934
Delalić et al., TC, ICTY, 2 September 1997, paras 43–44.
935
See Chapter 7, section 2, A(5)(ii).
936
S. Milošević, TC, ICTY, 24 May 1999, para. 27.
937
Provided that a finding pursuant to Rule 98ter of the ICTY RPE (Rule 88 (B) ICTR and
SCSL RPE) has been made in the judgment.
938
S. Milošević, TC, ICTY, 24 May 1999, paras 27–28. According to Sluiter, ‘it would be
undesirable if Judges, or other organs of the Tribunal, could circumvent the RPE by
resorting exclusively to the “broad” provisions in the Statute’. He argues that where Rule
61(D) limits the power conferred by Rule 54, it equally limits Art. 19(2) ICTY Statute (as
Rule 54 further details the powers provided for under Art. 19(2)). To hold otherwise would
violate the generalis-specialis principle. See G. Sluiter, ‘Commentary’, in A Klip and G
Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals. Vol. 3: The
International Criminal Tribunal for the Former Yugoslavia 1997–1999 (Antwerp: Intersentia,
2001) 48.
939
Notably, the 1999 Expert Group made the suggestion that this power should be left to
the single judge in Rule 61 proceedings. See, Comprehensive report on the results of the
implementation of the recommendations of the Expert Group to Conduct a Review of the
Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia
and the International Criminal Tribunal for Rwanda, UNGA Doc. A/56/853, 4 March 2002,
para. 26.
940
Norman et al., TC, SCSL, 19 April 2004.
941
Norman (n 940) para. 10.
942
Art. 19(3) SCSL Statute; Rules 88(B) and 104(C) SCSL RPE.
943
Norman et al., TC, SCSL, 19 April 2004, para. 11.
944
Norman (n 943) paras 13–14. In explaining this threshold, the judge referred to the
infringement such course of action makes on the constitutionally and internationally
recognized right to property and the presumption of innocence.
945
A. Klip, ‘Commentary’, in A. Klip and G. Sluiter (eds), Annotated Leading Cases of
International Criminal Tribunals. Vol. 9: The Special Court for Sierra Leone 2003–2004
(Antwerp: Intersentia, 2001) 742.
946
Kabuga, AC, ICTR, 22 November 2002. Notably, the prosecutor did not request a
judicial order by a judge or TC.
947
Del Ponte (n 702) 554–5; Swoboda (n 349) 389.
948
Krstić, TC, ICTY, 2 August 2001, para. 105.
949
The presence of a ‘war-like situation’ is not without importance. The ICCPR, the ECHR,
and the ACHR provide that the right to privacy is not absolute and may be derogated from
in emergency situations. Consider Art. 4 ICCPR, 15 ECHR and Art. 27 ACHR; as noted in
Brđanin, TC, ICTY, 3 October 2003, paras 30 and 63.3; Karadžić, TC, ICTY, 30 September
2010, para. 11.
950
Haraqija and Morina, TC, ICTY, 27 November 2008, para. 1; Haraqija and Morina, AC,
ICTY, 23 July 2009, para. 17.
951
Haraqija and Morina, TC, ICTY, 27 November 2008, para. 20.
952
Haraqija and Morina, AC, ICTY, 23 July 2009, paras 19–22.
953
Haraqija and Morina (n 952) para. 28.
954
Art. 18(2) ICTY Statute, Art. 17(2) ICTR Statute, Art. 15(2) SCSL Statute, and Rule
39(i)–(ii) ICTY RPE, ICTR RPE, and SCSL RPE.
955
See Alamuddin (n 449) 289.
956
Consider in particular: Haraqija and Morina, AC, ICTY, 23 July 2009, para. 28; Kordić
and Čerkez, TC, ICTY, 2 February 2000 (transcript), at 13684–5 and 13695; S. Milošević,
TC, ICTY, 16 December 2003, at 3; Brđanin, TC, ICTY, 3 October 2003, paras 51 and 61;
Renzaho, TC, ICTR, 20 March 2007, para. 15; Stanisić and Župljanin, TC, ICTY, 16
December 2009, para. 21; Krajišnik, TC, ICTY, 27 September 2006, para. 1189.
957
958
Safferling (n 308) 162.
959
Art. 18(2) ICTY Statute, Art. 17(2) ICTR Statute, Art. 15(2) SCSL Statute, and Rule
39(i)–(ii) ICTY RPE, ICTR RPE, and SCSL RPE.
960
Delalić et al., TC, ICTY, 19 January 1998 (Decision on the Prosecution’s Oral Requests
for the Admission of Exhibit 155 Into Evidence and for an Order to Compel the Accused,
Zdravko Mucić, to Provide a Handwriting Sample).
961
962
963
964
Art. 99(4) ICC Statute. However, nothing seems to prevent states parties or other states
(on the basis of a written agreement or an ad hoc arrangement) from providing the ICC
Prosecutor with broader powers to conduct on site investigations on its territory.
965
Memorandum of Understanding between the United Nations and the International
Criminal Court Concerning Cooperation between the United Nations Organization Mission
in the Democratic Republic of the Congo (MONUC) and the International Criminal Court, 8
November 2005, in U.N. Juridical Yearbook 2005, at 71. See further R. Rastan, ‘The
Responsibility to Enforce—Connecting Justice with Unity’, in G. Sluiter and C. Stahn (eds),
The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff
Publishers, 2009) 173–4.
966
Art. 57(3)(d) ICC Statute. While the formulation of the provision seems to limit this
possibility to states parties, this possibility arguably extends to non-state parties in case of a
referral of the situation by the Security Council (in which case such power derives directly
from Chapter VII of the United Nations Charter) and in case of the acceptance by a non-
party state of the jurisdiction of the Court under Art. 12(3) ICC Statute juncto Rule 44 ICC
RPE.
967
Sluiter (n 510) 309; Guariglia et al (n 127) 1128–9.
968
Guariglia et al. (n 127) 1123.
969
Lubanga, PTC, ICC, 29 January 2007, para. 79.
970
971
972
Lubanga, TC, ICC, 24 June 2009, para. 38.
973
Lubanga, TC, ICC, 21 October 2010, paras 29–31.
974
Kreß (n 142) 615. See further Lubanga, TC, ICC, 24 June 2009, para. 38.
975
Rule 116(1)(a) and (b) ICC Statute, respectively.
976
Banda and Jerbo, TC, ICC, 1 July 2011 (ICC-02/05-03/09-170), para. 14; Katanga and
Ngudjolo, PTC, ICC, 25 April 2008, at 5.
977
See further Guariglia et al. (n 127) 1123.
978
Art. 53(1)(a) ICC Statute; Art. 15(3) ICC Statute.
979
980
With regard to the Situation in the DRC, it may be noted that the Memorandum of
Understanding between the ICC and MONUC allows MONUC to provide assistance in the
execution of requests for cooperation involving coercive powers, at the request of the
authorities of the DRC. See Memorandum of Understanding between the United Nations
and the International Criminal Court Concerning Cooperation between the United Nations
Organization Mission in the Demorcatic Republic of the Congo (MONUC) and the
International Criminal Court (n 965) 71. See Rastan (n 965) 173–4.
981
Rastan (n 774) 449–53.
982
A. Orie, ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings
Prior to the Establishment of the ICC and in the Proceedings Before the ICC’, in Cassese/
Gaeta/Jones (eds), The Rome Statute 1486.
983
Draft Report of the Intersessional Meeting from 19 to 30 January 1998 in Zutphen, The
Netherlands, 30 January 1998, as reprinted in S. Wexler (ed.), Observations on the
Consolidated ICC Text before the Final Session of the Preparatory Committee (Toulouse:
Association Internationale de droit pénal, Erès, 1998) 115–249. It should be observed that
this provision leaves unresolved the question of whether the defence can ask the PTC for a
warrant to carry out a search and seizure operation.
984
G.E. Edwards, ‘International Human Rights Law Challenges to the New International
Criminal Court: The Search and Seizure Right to Privacy’ (2001) 26 The Yale Journal of
International Law 323, 351.
985
Edwards (n 984) 350.
986
Lubanga, PTC, ICC, 29 January 2007, para. 84. Notably, ICC Trial Chamber I stressed
that Art. 69(7) ICC Statute, dealing with illegally obtained evidence, is lex specialis to the
general admissibility provisions of the Statute. See Lubanga, TC, ICC, 24 June 2009, paras
34 and 43.
987
988
See further Lubanga, TC, ICC, 24 June 2009, paras 39–41.
989
The reference to a ‘written undertaking’ was included with the aim of having at least
some formal indication where the property rights of the suspect are at stake, see P. Lewis
and H. Friman, ‘Reparations to Victims’, in Lee, R.S. (ed.), The International Criminal Court,
Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational
Publishers, 2001) 489.
990
Art. 57(3)(e) ICC Statute juncto Rule 99(1) ICC RPE.
991
A draft provision prescribed notification, with the exception of cases of urgency. Where
no prior authorization had occurred, an inter partes hearing should be organized.
Nevertheless, the procedure was changed out of concerns that the suspect could hide his or
her assets before this formal procedure was completed. Now, where the order is made
without prior notification, the Registrar shall notify those against whom a request is made
‘as soon as is consistent with the effectiveness of the measures requested’ (Rule 99(3) ICC
RPE). See Lewis and Friman (n 989) 489–90.
992
Art. 93(1)(k) ICC Statute also refers to the freezing or seizure of the ‘instrumentalities
of the crimes for the purpose of eventual forfeiture’. Nevertheless, it has been argued that
such reference to the instrumentum sceleris ‘is widely believed to be an error’. The
restraint of the instrumentalities of the crime was removed as a possible sanction under the
Statute during the negotiations at Rome. See Schabas, The International Criminal Court
1021; Kreß and Prost (n 774) 1578.
993
Guariglia et al. (n 127) 1131.
994
Consider further Art. 79 ICC Statute.
995
See Report of the Bureau on Cooperation, ICC ASP, 19 October 2007, para. 41.
996
997
Lubanga, PTC, ICC, 24 February 2006, paras 130–134. In particular, the PTC argues
that Rule 99(1) ICC RPE, which further details Art. 57(3)(e) ICC Statute, is to be found in
the subsection dealing with reparations to victims.
998
Lubanga (n 997) para. 135 (if cooperation can be sought only to take protective
measures for the future enforcement of a residual penalty of forfeiture, this would be
contrary to the ‘ultimate benefits of victims’).
999
1000
1001
1002
Lubanga, PTC, ICC, 24 February 2006, para. 141.
1003
Regulation 54(1) ICC Regulations of the Prosecutor. According to Regulation 54(2),
the OTP will consider: (a) The availability of specific information regarding the existence of
proceeds, property, assets or instrumentalities of crimes to be identified, traced or frozen
within a given jurisdiction; and (b) Any relevant information regarding persons enjoying the
power of disposal with regard to such proceeds, property, assets or instrumentalities of
crimes. Regulation 49 adds to this that ‘for the purposes of article 57, paragraph 3(e),
article 77, paragraph 2(b) and article 93, paragraph 1(k), the Office shall pay particular
attention in its investigations to the identification, tracing and freezing or seizure of
proceeds, property and assets and instrumentalities of crimes, in particular for the ultimate
benefit of victims’.
1004
E.g. Katanga, PTC, ICC, 6 July 2007.
1005
Bemba, PTC, ICC, 17 November 2008, at 3, 5–6.
1006
See e.g. the reference to Ngudjolo Chui, Al Bashir, Ahmad Muhammad Harun and Ali
Muhammad Ali Abd-Al-Rahman, in Bemba, PTC, ICC, 7 August 2009.
1007
See the definition of ‘forfeiture’ in Art. 77(2)(b) ICC Statute.
1008
E.g. consider Bemba, PTC, ICC, 17 November 2008, para. 3: the PTC requested the
assistance of Portugal in the ‘identification, tracing, freezing or seizure of any assets or
proceeds’ of Bemba.
1009
Bemba (n 1008) paras 7–8.
1010
Exceptionally, in the case of a ‘failed state’ scenario, the prosecution may itself
intercept communications upon authorization by the PTC; Art. 57(3)(d) ICC Statute.
1011
Kreß and Prost (n 774) 1574.
1012
Mbarushimana, PTC, ICC, 16 December 2011, paras 66–74. It seems that at least the
German intercepts did not result from a request by the prosecutor. See e.g. the reference in
Mbarushimana, PTC, ICC, 10 August 2008, para. 14.
1013
Friman (n 534) 504.
1014
Friman (n 534) 505.
1015
Friman (n 534) 505.
1016
Friman (n 534) 505.
1017
1018
1019
Notably, the Government of Uganda requested the OTP for assistance on two
occasions in the execution of DNA tests on the body of an alleged suspect. See Situation
Uganda, OTP, ICC, 28 August 2006; Press Release, ‘ICC Unseals Results of Dominic Ongwen
DNA Tests’, ICC, 7 July 2006.
1020
Section 9.3 TRCP.
1021
Section 9.2 TRCP.
1022
Section 15 TRCP. The prosecutor’s power to conduct search and seizures derived from
Section 7.4 TRCP.
1023
Apart from reasonable grounds to believe that evidence of a crime is located in or on
the premises, the TRCP required that: (a) the evidence may be tampered with, removed or
destroyed; or (b) it is necessary to safeguard or preserve the scene of a crime; or (c) the
police are in hot pursuit of a suspect; or (d) there is an immediate danger to the safety or
security of persons.
1024
Section 15.2 TRCP.
1025
Section 15.3 TRCP.
1026
Section 15.4 TRCP. The grounds should be recorded in the warrant.
1027
Section 15.5 TRCP.
1028
Section 15.6 TRCP.
1029
1030
1031
Section 9.3(h) TRCP.
1032
Sections 9.8(h) and 16.5 TRCP.
1033
Rule 21(2) ECCC IR.
1034
Rule 13(4)(a) and Rule 14(5) ECCC IR respectively.
1035
Rule 13(4)(a) and Rule 14(5) ECCC IR respectively.
1036
Rule 21(2) ECCC IR.
1037
Rule 21(2) ECCC IR.
1038
Rules 61 and 62 ECCC IR. The judicial police may conduct search and seizures upon
rogatory letter. Exceptionally, search and seizures may be conducted by the judge or judges
indicated by the TC, when the TC considers an additional investigation necessary (Rule
93(2) ECCC IR).
1039
Rule 50(2) ECCC IR.
1040
Rule 50(3) ECCC IR.
1041
Rule 50(5) ECCC IR (searches during preliminary investigation); Rule 61(2)–(3) ECCC
IR (judicial investigation).
1042
Rule 50(2) ECCC IR (investigators or police may enter the premises only between 6
am and 6 pm).
1043
Rule 61(1) ECCC IR (judicial investigation) and Rule 50(3) ECCC IR (preliminary
investigation).
1044
Rule 52 ECCC IR.
1045
Rule 32 ECCC IR.
1046
Rule 31(6) ECCC IR.
1047
Nuon Chea et al., PTC, ECCC, 22 October 2008, para. 19; Nuon Chea et al., PTC,
ECCC, 21 October 2008, paras 26–28.
1048
Rule 96(B) STL RPE juncto Rule 16 STL RPE.
1049
Art. 18(2) STL Statute, Rule 77(A)(B) and Rule 88(A) STL RPE.
1050
Rule 77(B) STL RPE. STL, Annual Report (2009–2010), para 51.
1051
Art. 11(5) STL Statute, Rule 61(i) STL RPE.
1052
Rules 16(B)–(C) and 18(B)–(C) STL RPE. Consider further Art. 15 of the STL
Agreement on the cooperation between Lebanon and the Tribunal.
1053
Rule 92(A)(C) STL RPE.
1054
Rule 77(A) and (B) STL RPE. See further Art. 18(2) STL Statute that refers only to the
prosecutor.
1055
The right to liberty as laid down in Arts 9 ICCPR, Art. 5 ECHR, Art. 7 ACHR as well as
in Arts 3 and 9 UDHR and Art. 6 of the EU Charter of Fundamental Rights. The right to
privacy can be found in Art. 17 ICCPR, Art. 8 ECHR, and Art. 11 of the ACHR (see further
Art. 12 of the UDHR and Art. 7 of the EU Charter of Fundamental Rights). The right is not
included in the ACHPR. The right to property has been laid down in Art. 21 ACHR, Art. 14
ACHPR, and Art. 17 UDHR, as well as in Protocol 1, Art. 1 ECHR and Art. 17(1) EU Charter
of Fundamental Rights. It is not included in the ICCPR.
1056
Art. 18(2) ICTY Statute; Art. 17(2) ICTR Statute; Rule 39(i) ICTY RPE, ICTR RPE, and
SCSL RPE; Art. 54(3)(a) ICC Statute.
1057
See e.g. Malone v. UK, ECtHR, 2 August 1984, para. 67; James and Others v. UK,
ECtHR, 12 July 1984, para. 67.
1058
E.g. Huvig v. France, ECtHR, 24 April 1990, para. 34.
1059
Valenzuela Contreras v. Spain, ECtHR, 30 July 1998, para. 46.
1060
HRC General Comment No. 16, paras 4 and 8; Pinkney v. Canada, HRC, 29 October
1981, para. 34, establishing that the lawful interference with privacy must be sufficiently
circumscribed to be in accordance with Art. 17 ICCPR.
1061
Chappell v. UK, ECtHR, 30 March 1989, para. 52; Malone v. UK, ECtHR, 2 August
1984, para. 66; Sunday Times v. UK, ECtHR, 26 April 1979, para. 47.
1062
On the notion of ‘settled case law’, see Kruslin v. France, ECtHR, 24 April 1990, para.
29.
1063
For an exception, see Karadžić, Duty Judge, ICTY, 11 September 2003.
1064
Funke v. France, ECtHR, 25 February 1993, para. 57; Crémieux v. France, ECtHR, 25
February 1993, para. 40; Miailhe v. France (No. 1), ECtHR, 25 February 1993, para. 38.
1065
Camenzind v. Switzerland, ECtHR, 16 December 1997, para. 45.
1066
E.g. Concluding Observations of the HRC: Poland, 29 July 1999, para. 22.
1067
In general, see M.A. Eissen, ‘The Principle of Proportionality in the Case-Law of the
European Court of Human Rights’, in R.St.J. Macdonald et al. (eds), The European System
for the Protection of Human Rights (Dordrecht/Boston/London: Martinus Nijhoff Publishers,
1993) 125–46.
1068
J. McBride, ‘Proportionality and the European Convention on Human Rights’, in Ellis
(n 908) 24.
1069
Handyside v. UK, ECtHR, 7 December 1976, paras 48–49; Silver and Others v. UK,
ECtHR, 25 March 1983, para. 97.
1070
Nowak (n 647) 383 (noting that ‘whether interference with privacy is permissible
requires a precise balancing of the circumstances in a given case, paying regard to the
principle of proportionality’). See further HRC General Comment No. 16, para. 4.
1071
E.g. Crémieux v. France, ECtHR, 25 February 1993, para. 40; Funke v. France, ECtHR,
25 February 1993, para. 57; Miailhe v. France (No. 1), ECtHR, 25 February 1993, para. 38.
1072
Niemietz v. Germany, ECtHR, 16 December 1992, para. 37 (A search warrant had
been issued to seize ‘documents’ without any further limitation. The Court took into
consideration that under German law the search of lawyers’ offices is not accompanied by
any special procedural safeguards and that a look at the documents inspected revealed that
the search disproportionately impinged on professional secrecy); Van Rossem v. Belgium,
ECtHR, 9 December 2004, paras 44–51 (Several search warrants had been issued which did
not contain any limitation as to the items that could be searched for and that could be
seized. According to the Court, the warrant should at least have included the facts
mentioned in the introductory submission.); Roemen and Schmit v. Luxemburg, ECtHR, 25
February 2003, para. 70.
1073
As stated earlier, such a privilege is included in Art. 14(3)(g) ICCPR and Art. 8(2)(g) of
the ACHR and has been recognized in the case law of the ECtHR.
1074
Saunders v. UK, ECtHR, 17 December 1996, para. 69; Jalloh v. Germany, ECtHR, 11
July 2006, paras 102 and 112; Heaney and McGuiness v. Ireland, ECtHR, 21 December
2000, para. 40; O’Halloran and Francis v. UK, ECtHR, 29 June 2007, para. 47.
1075
See section 3.2 A(ii)(f). For a similar argumentation, see P. Mevis, ‘Commentary’, in
Klip and Sluiter (n 938) 340–1.
1076
1984 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment
or Punishment; 1987 European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (Council of Europe); Art. 7 ICCPR; Art. 3 ECHR; Art. 5
ACHR; Art. 5 ACHPR.
1077
Jalloh v. Germany, ECtHR, 11 July 2006.
1078
Jalloh (n 1077) paras 71 and 76.
1079
Jalloh (n 1077) paras 82–83.
1080
B. De Smet, Internationale Samenwerking in Strafzaken tussen Angelsaksische en
Continentale Landen (Antwerp/Groningen: Intersentia Rechtswetenschappen, 1999) 108.
1081
Ambos (n 301) 107 et seq.
1082
Ambos (n 301) 108.
1083
The requirement of a judicial authorization for the execution of searches of premises is
laid down in Section 8 PACE 1984 (England). However, there are many exceptions to that
rule, allowing the police to conduct searches without a warrant, e.g. Section 17 PACE 1984
(arrestable offences), Section 18 PACE 1984, or Section 32(2)(b) PACE 1984 (search of
property a person under arrest was in at the time of arrest or immediately before, or
property that this person occupies or controls, may be searched for evidence in respect of
the offence for which this person is under arrest and, in some cases, other offences as well).
See e.g. J.R. Spencer, ‘The English System’, in M. Delmas-Marty and J.R. Spencer (eds),
European Criminal Procedure (Cambridge: Cambridge University Press, 2002) 190–1; Cape
and Hodgson (n 287) 66–77.
1084
Sections 54–55 PACE 1984 (England).
1085
M.L. Wade, ‘United Kingdom: England and Wales’ (2009) 80 Revue internationale de
droit pénal 323, 334 (CD-Rom Annex). See, in that regard, S. and Marper v. UK, ECtHR, 4
December 2008, para. 26.
1086
Section 26 Regulation of Investigatory Powers Act (RIPA) 2000. See Wade (n 1085)
332.
1087
See J. Michelich, ‘National Report’, in L. Arbour et al. (eds), The Prosecutor of an
International Criminal Court: International Workshop in Co-operation with the Office of the
Prosecutor of the International Criminal Tribunals (ICTY and ICTR) (Freiburg im Breisgau:
Max-Planck Institut für ausländisches und internationales Strafrecht, 2000) 484, and P.
Healy, ‘Canada’, in the same publication, at 248. E.g. the US Supreme court requires a
written search warrant issued by a judicial officer for the search of ‘structures’, including
premises. The search of cars does not require a warrant. See C.M. Bradley, ‘United States’,
in C.M. Bradley (ed.), Criminal Procedure: A Worldwide Study (Durham, NC: Carolina
Academic Press, 1999) 402–4. Also the Canadian criminal justice system normally requires
a warrant for the search of buildings, receptacles or places, see Section 487 of the Criminal
Code (Canada).
1088
Unless a minor crime has been committed and the suspect is in his home, see S.
Slobogin (n 671) 425.
1089
Maryland v. Buie, 494 US 325, 327 (1990).
1090
S. Gless, ‘Functions and Constitution of the Court at the Pre-Trial and Trial Phase’, in
A. Eser and C. Rabenstein, Strafjustiz im Spannungsfeld von Effizienz und Fairness (Berlin:
Dunker & Humblot, 2004) 344.
1091
In Belgium, judicial authorization is normally necessary for coercive measures (e.g.
searches, wiretaps or the taking of DNA samples without consent). See J. Fermon et al.,
‘The Investigative Stage of the Criminal Process in Belgium’, in Cape et al. (n 275) 41.
1092
In case of inquiries en flagrant délit, the prosecutor has certain compulsory powers,
e.g. he or she can conduct compulsory searches without a judicial warrant: see Art. 36 Code
of Criminal Procedure (Belgium); Art. 56 Code of Criminal Procedure (France). See further,
J. Cédras, ‘National Report on France’, in Arbour et al. (n 1083) 484; C. Van den Wyngaert,
Criminal Procedures in the European System (Brussels: Butterworths, 1993) 125.
1093
In Germany, the public prosecutor who conducts the pre-trial investigation normally
(with few exceptions) needs judicial authorization for coercive measures. Most notably, Art.
13(2) of the Constitution (Grundgesetz für die Bundesrepublik Deutschland) requires a
judicial warrant; see further Ambos (n 301) 108. The German prosecutor or police may
search premises without previously obtaining a judicial warrant in urgent cases where
there is ‘danger in delay’ (Gefahr in Verzuge). It has been noted that the vast majority of
searches and seizures are conducted where this ‘danger in delay’ clause is invoked, without
prior judicial authorization; see Weigend and Salditt (n 275) 85.
1094
E.g. searches can normally be authorized by the prosecutor, but the search of a
private dwelling requires a judicial warrant, see T. Prakken and T. Spronken, ‘Criminal
Defence during the pre-trial Stage in the Netherlands’ in E. Cape et al. (n 275) 162. Also the
interception of telecommunication requires a judicial authorization. In contrast, the taking
of DNA for analysis does not require judicial intervention. Corstens (n 669) 357.
1095
Regarding searches, see H. Lensing, ‘General Comments’, in Bradley (n 1087) 427.
1096
Meanwhile, some authors have noticed a trend of lowering such thresholds and
triggering mechanisms, especially in relation to the pro-active investigation of serious
crimes, see e.g. J.A.E. Vervaele, ‘Mésures de procedure spéciales et respect des droits de
l’homme—Rapport general’ (2009) 5 Utrecht Law Review 110, 129–30.
1097
J.A.E. Vervaele, ‘Special Procedural Measures and the Protection of Human
Rights’ (2009) 5 Utrecht Law Review 66, 96.
1098
Section 8 PACE 1984 (England). Where the material condition is not explicitly
provided by law, such a requirement may follow from jurisprudence.
1099
Section 487.01(1)(a) Criminal Code (Canada); K.W. Roach, ‘Canada’, in Bradley (n
1087) 61.
1100
While the law does not expressly stipulate it, the existence of such material condition
has been recognized in practice, see e.g. R. Verstraeten, Handboek Strafvordering
(Antwerp/Apeldoorn: Maklu, 2003) 347; C. Van den Wyngaert, Strafrecht en
Strafprocesrecht (Antwerp/Apeldoorn: Maklu, 2009) 1023.
1101
See section 3.2 A(ii)(b.2).
1102
R. Juy-Birmann, ‘The German System’, in M. Delmas-Marty and J.R. Spencer (eds),
European Criminal Procedure (Cambridge: Cambridge University Press, 2002) 313.
1103
Art. préliminaire III Code of Criminal Procedure (France).
1104
Corstens (n 669) 70–2.
1105
See section 3.2 B(i)(b).
1106
Sluiter (n 510) 125–6.
1107
M. Inazumi, ‘Commentary’, in A. Klip and G. Sluiter (eds), Annotated Leading Cases of
International Criminal Tribunals, Vol. 6: The International Criminal Tribunal for Rwanda
2000–2001 (Antwerp: Intersentia, 2003), 437.
1108
See in particular: A.M.M. Orie, ‘De verdachte tussen wal en schip òf de systeembreuk
in de kleine rechtshulp’, in E. André de la Porte et al. (eds), Bij deze stand van zaken -
bundel opstellen aangeboden aan A. L. Melai (Arnhem, Gouda Quint, 1983) 351–361.
1109
R. Cryer et al., An Introduction to International Criminal Law and Procedure
(Cambridge: Cambridge University Press, 2007) 419, note 122.
1110
Nyiramasuhuko, TC, ICTR, 12 October 2000, para. 26; Ngirumpatse, TC, ICTR, 10
December 1999, para. 56; Karemera, TC, ICTR, 10 December 1999, para. 4.2; Nzirorera,
TC, ICTY, 7 September 2000, para. 27; Kajelĳeli, TC, ICTR, 8 May 2000, paras 34–35.
1111
E.g. Delalić et al., TC, ICTY, 2 September 1997, paras 43–44.
1112
However, there is no guarantee that domestic judicial authorization is required for the
specific measure sought or that such authorization will in practice be sought. It should be
reiterated that while human rights law jurisprudence considers the necessity of obtaining
judicial authorization as ‘highly relevant’, there is no clear-cut obligation to obtain judicial
authorization for coercive measures under human rights law. Besides, there is no guarantee
that domestic law will not depart from the requirements under international human rights
law, or that the domestic law will not be circumvented. See, R. Cryer et al. (n 1109) 419.
1113
Arrest at the seat of an international criminal tribunals is a possibility if (a) the
suspect has appeared pursuant to a summons to appear, but it is decided that he has to be
arrested, (b) in the course of a hearing individuals—e.g. witnesses—incriminate themselves
to such a degree that an application is made on the spot for an arrest warrant.
1114
Taylor indicates, for example, how the Soviet government was distressed at having so
few prisoners of sufficient notoriety to merit a seat in the dock. T. Taylor, The Anatomy of
the Nuremberg Trials (New York: Alfred A. Knopf, 1992) 89.
1115
Taylor (n 1114) 85–90 and Boister and Cryer (n 321) 50–4.
1116
See section 4.2 A(v).
1117
Art. 18(2) ICTR Statute is identical.
1118
Kordić et al., TC, ICTY, 10 November 1995.
1119
Kordić (n 1118) 3.
1120
S. Milošević, TC, ICTY, 22 November 2001, para. 14.
1121
See section 4.2 B(i).
1122
See section 4.2 A(ii).
1123
Re Surrender of Elizaphan Ntakirutimana, 988 F.Supp. 1038 (1997).
1124
See e.g. Barayagwiza, AC, ICTR, 3 December 1999; Rwamakuba, TC, ICTR, 20
September 2006, paras 217–220; Semanza, TC, ICTR, 15 May 2003, para. 580.
1125
Ngirumpatse, TC, ICTR, 10 December 1999, para. 56; Kajelĳeli, TC, ICTR, 8 May 2000,
para. 34; Nzirorera, TC, ICTY, September 2000, para. 27.
1126
Kajelijeli, TC, ICTR, 8 May 2000, para. 34; Ngirumpaste, TC, ICTY, 10 December 1999,
para. 56; Nzirorera, TC, ICTR, 7 September 2000, para. 27.
1127
Dokmanović, TC, ICTY, 22 October 1997; D. Nikolić, TC, ICTY, 9 October 2002;
Barayagwiza, AC, ICTR, 3 December 1999, para. 85; Barayagwiza, AC, ICTR, 31 March
2000.
1128
D. Nikolić, TC, ICTY, 9 October 2002, para. 111.
1129
Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-01/06-772), paras 33–35.
1130
Barayagwiza, AC, ICTR, 31 March 2000, para. 46.
1131
Taylor, AC, SCSL, 31 May 2004.
1132
E.g. Bemba, PTC, ICC, 14 August 2009, para 36.
1133
Harun and Kushayb, PTC, ICC, 27 April 2007 (ICC-02/05-01/07-1), para. 11.
1134
Harun and Kushayb (n 1133) para. 133.
1135
This sequence is described in Bemba, PTC, ICC, 10 June 2008, paras 4–10.
1136
Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-01/06-772), para. 41.
1137
Although this matter has not been regulated in the Statute, there are arrangements in
place between the ICC and (organs of) international organizations to enforce arrest
warrants. See Arts 8 (Transportation) and 16 (Arrests, searches and seizures and securing
of crime scenes) Memorandum of Understanding between the United Nations and the
International Criminal Court Concerning Cooperation between the United Nations
Organization Mission in the Demorcatic Republic of the Congo (MONUC) and the
International Criminal Court (n 965).
1138
See e.g. Hendriks v. Netherlands, ECtHR, 5 July 2007, para. 45.
1139
See G. Sluiter, ‘Due Process and Criminal Procedure in the Cambodian Extraordinary
Chambers’ (2006) 4 JICJ 314.
1140
Others).
1141
Taylor (n 1114) 150 and 151.
1142
Barayagwiza, AC, ICTR, 3 November 1999 and Barayagwiza, AC, ICTR, 31 March
2000.
1143
Decision on Request for Release (re: Wenceslas Munyeshyaka), Paris Court of Appeal
Case No. 2007/05357, 19 September 2007; Decision on Request for Release (re: Laurent
Bucyibaruta), Paris Court of Appeal Case No. 2007/05296, 19 September 2007.
1144
Decision on Request for Release (re: Wenceslas Munyeshyaka) (n 1143); Decision on
Request for Release (re: Laurent Bucyibaruta) (n 1143).
1145
Re Surrender of Elizaphan Ntakirutimana, 988 F.Supp. 1038 (1997).
1146
Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999).
1147
Blaškić, President, ICTY, 3 April 1996.
1148
For the ICTY this was 1999, for the ICTR 2003.
1149
Delalić et al., TC, ICTY, 25 September 1996 (Decision on Motion for Provisional
Release).
1150
M. Kovačević, TC, ICTY, 20 January 1998.
1151
Kordić and Čerkez, TC, ICTY, 22 March 1999.
1152
Delalić et al., TC, ICTY, 25 September 1996 (Decision on Motion for Provisional
Release), para. 1.
1153
M. Kovačević, TC, ICTY, 20 January 1998, paras 22–24; Kordić and Čerkez, TC, ICTY,
22 March 1999.
1154
Blaškić, TC, ICTY, 3 April 1996, Delalic, TC, ICTY, 25 September 1996 (Decision on
Motion for Provisional Release), paras 32–33; Delić, TC, ICTY, 24 October 1996, at II(C)(2)
and M. Kovačević, TC, ICTY, 20 January 1998, paras 26–27.
1155
Kupreškić, TC, ICTY,15 December 1997, para. 16; Delalić et al., TC, ICTY, 25
September 1996 (Decision on Motion for Provisional Release), paras 34–35; Delić, TC, ICTY,
24 October 1996, at II(C)(3).
1156
The decision permitting release is not available, however mention is given to it in
Kupreškić et al., TC, ICTY, 22 December 1999, para. 2.
1157
Simić, TC, ICTY, 26 March 1998 and Đukić, TC, ICTY, 24 April 1996.
1158
Krajišnik, TC, ICTY, 8 October 2001 (diss. op. of Judge Robinson).
1159
P. Wald and J. Martinez, ‘Provisional Release at the ICTY: A Work in Progress’, in
Essays on ICTY Procedure and Evidence, R. May et al. (eds) (The Hague: Kluwer Law
International, 2001) 233.
1160
Kvočka et al., TC, ICTY, 2 February 2000, at 2.
1161
Hadžihasanović and Kubura, TC, ICTY, 19 December 2001 (Decision Granting
Provisional Release to Amir Kubura), para. 7.
1162
Brđanin and Talić, TC, ICTY, 25 July 2000, para. 12; Ademi, TC, ICTY, 20 February
2002, para. 18; M. Jokić, TC, ICTY, 20 February 2002, para. 17; Limaj, TC, ICTY,12
September 2003, at 8; Haradinaj et al., TC, ICTY, 6 June 2005, para. 22.
1163
Boškoski, TC, ICTY, 18 July 2005, paras 30 and 47.
1164
Prlić et al., TC, ICTY, 30 July 2004 (Order on Provisional Release of Jadranko Prlić),
para. 28; Haradinaj et al., TC, ICTY, 6 June 2005, para. 47.
1165
Haradinaj et al., AC, ICTY, 10 March 2006, para. 31; Prlić et al., AC, ICTY, 8
September 2004, para. 28; Haradinaj et al., TC, ICTY, 6 June 2005, paras 46–50.
1166
Šainović and Ojdanić, AC, ICTY, 30 October 2002, para. 6.
1167
Brđanin and Talić, TC, ICTY, 20 September 2002 (Decision on the Motion for
Provisional Release of the Accused Momir Talić); Zarić, TC, ICTY, 4 April 2000.
1168
Šainović and Ojdanić, AC, ICTY, 30 October 2002, para. 6.
1169
Mrkšić, AC, ICTY, 8 October 2002, paras 9–12.
1170
Mrkšić (n 1169) paras 9–12.
1171
Stanišić, TC, ICTY, July 2004, para. 16; Haradinaj et al., AC, ICTY, 9 March 2006, para.
12; Boškoski and Tarčulovski, TC, ICTY, 18 July 2005, para. 38; Haradinaj et al., TC, ICC, 6
June 2005, para. 38; Mrksić et al., AC, ICTY, 9 March 2005, para. 13; Prlić et al., TC, ICTY,
11 June 2007, at 3 (Decision on the Motion for Provisional Release of the Accused Pušić).
1172
Stanišić, TC, ICTY, 28 July 2004, para. 28; Perišić, TC, ICTY, 9 June 2005, at 2; Todović,
TC, ICTY, 22 July 2005, paras 13 and 14.
1173
Haradinaj et al., AC, ICTY, 9 March 2006, para. 23.
1174
Milutinović et al., TC, ICTY, 7 June 2007, para. 7 and following; Prlić et al., TC, ICTY,
11 June 2007 (Decision on the Motion for Provisional Release of the Accused Pušić), at 4.
1175
Inter alia, Kanyabashi, TC, ICTR, 21 February 2001, paras 4–5; Sagahutu, TC, ICTR,
25 September 2002, para. 45; Bagosora et al., TC, ICTR, 12 July 2002, para. 24.
1176
Kanyabashi, TC, ICTR, 21 February 2001.
1177
Not even in respect of contempt charges; see Nshogoza, TC, ICTR, 17 November
2008, and Nshogoza, TC, ICTR, 17 December 2008.
1178
Rukundo, TC, ICTR, 18 August 2003, para. 21.
1179
Rukundo, TC, ICTR, 15 July 2004, para. 18.
1180
Nzabirinda, TC, ICTR, 13 October 2006, para. 14.
1181
Karemera et al., AC, ICTR, 7 April 2009, para. 13.
1182
Ndindiliyimana et al., TC, ICTR, 11 November 2003.
1183
Karemera et al., AC, ICTR, 7 April 2009, para. 14; see further Muvunyi, AC, ICTR, 20
May 2009, para. 8.
1184
Karemera et al., AC, ICTR, 8 December 2009, para. 7.
1185
Karemera (n 1184) (diss. op. of Judge Liu), para. 3.
1186
Brima et al., TC, SCSL, 22 July 2003, at 7.
1187
Brima (n 1186) 15.
1188
Sesay et al., TC, SCSL, 31 March 2004, para. 57; Norman et al., TC, SCSL, 5 August
2004, paras 82–84.
1189
Sesay et al., AC, SCSL, 14 December 2004, para. 36.
1190
Sesay et al., SCSL, 23 February 2004, para. 44.
1191
Norman et al., AC, SCSL, 11 March 2005.
1192
1193
1194
1195
Mbarushimana in France: see Mbarushimana, PTC, ICC, 29 November 2010. Bemba
also applied for interim release while in Belgium, see Bemba, PTC, ICC, 15 August 2008.
1196
See in detail G. Sluiter, ‘Human rights protection in the ICC Pre-Trial phase’, in C.
Stahn and S. Sluiter (eds), The Emerging Practice of the International Criminal Court
(Leiden: Martinus Nijhoff Publishers, 2009) 467–74.
1197
Mbarushimana, PTC, ICC, 29 November 2010; Bemba, PTC, ICC, 15 August 2008.
1198
Sudan acting as a prime example.
1199
Lubanga, PTC, ICC, 3 October 2006 and Lubanga, AC, ICC, 14 December 2006
(ICC-01/04-01/06-772).
1200
1201
Sluiter has criticized the AC for failure to properly review national arrest proceedings
in the light of international human rights law, see Sluiter (n 1196); for a different view, see
Rastan (n 774) 431.
1202
Lubanga, AC, ICC, 13 February 2007, at 27; see further Bemba, AC, ICC, 19 November
2010, para. 45.
1203
Bemba, AC, ICC, 19 November 2010, para. 51.
1204
Bemba (n 1203) para. 51.
1205
The mandatory nature of Art. 60(2) has been confirmed by the AC, see Lubanga, AC,
ICC, 13 February 2007, para. 134.
1206
Harun and Kushayb, PTC, ICC, 27 April 2007 (ICC-02/05-01/07-3-Corr); Harun and
Kushayb, PTC, ICC, 27 April 2007 (ICC-02/05-01/07-2-Corr).
1207
Lubanga, PTC, ICC, 18 October 2006, at 5.
1208
Lubanga (n 1207) 7.
1209
Also critical on this, see Lubanga, AC, ICC, 13 February 2007, para. 136: ‘it would
have been preferable for the PTC to explain in more detail why it reached its conclusion
that the Appellant may abscond’, and para. 139: ‘the reasoning in the Impugned Decision as
to the potential endangerment of witnesses is scarce’.
1210
1211
1212
1213
Katanga and Ngudjolo, Defence, ICC, 9 June 2008, para. 24.
1214
Bemba, AC, ICC, 16 December 2008 (diss. op. of Judge Pikis).
1215
Bemba (n 1214) para. 36.
1216
Bemba, AC, ICC, 19 November 2010, paras 50–51.
1217
Bemba, PTC, ICC, 14 August 2009, para. 69.
1218
Bemba, AC, ICC, 2 December 2009.
1219
Bemba (n 1218) paras 66–88.
1220
Bemba (n 1218) paras 105 and 106.
1221
G. Sluiter, ‘Atrocity Crimes Litigation: Some Human Rights Concerns Occasioned by
Selected 2009 Case Law’ (2010) 8(3) Northwestern Journal of International Human Rights
248, 266.
1222
Abu Garda, PTC, ICC, 7 May 2009; Banda and Jerbo, PTC, ICC, 27 August 2009; Ruto
et al., PTC, ICC, 8 March 2011.
1223
Kenyatta et al., PTC, ICC, 4 April 2011.
1224
Lubanga, AC, ICC, 13 February 2007, para. 120.
1225
Lubanga (n 1224) paras 122–123.
1226
1227
Lubanga, PTC, ICC, 18 October 2006, at 7.
1228
But it should be noticed that when an accused had attempted to flee, the SPSC
ordered continuing detention: Salvador Soares, SPSC, 16 September 2002, para. 12.
1229
Carlos Ena, Court of Appeal, SPSC, 24 September 2003, at 7.
1230
Lino de Carvalho, SPSC, 28 October 2002, at 9.
1231
Mendez Correira, SPSC, 10 June 2003, para. 14.
1232
Mendez Correira (n 1231) para. 15.
1233
Sisto Barros et al., SPSC, 17 March 2004, para. 50.
1234
Note the interesting difference in terminology; whereas other courts and tribunals
speak of provisional release—thereby implictly confirming the exceptional nature thereof—
the ECCC legal framework uses the reverse: provisional detention.
1235
Kaing Guek Eav, TC, ECCC, 15 June 2009.
1236
Khieu Samphan, PTC, ECCC, 3 July 2009.
1237
Khieu Samphan (n 1236) paras 58 and 63.
1238
Khieu Samphan (n 1236) paras 58 and 63.
1239
Others).
1240
Order Regarding the Detention of Persons Detained in Lebanon (n 1239) 14.
1241
Art. 9 ICCPR; Art. 5 ECHR; Art. 7 ACHR.
1242
Art. 9 ICCPR; Art. 5 ECHR; Art. 7 ACHR.
1243
Art. 9(2) ICCPR; Art. 5(2) ECHR; Art. 7(4) ACHR.
1244
1245
1246
Art. 9(1) ICCPR; see further Art. 5(1) ECHR.
1247
See Saadi v. UK, ECtHR, 28 January 2008, paras 69–73; Mooren v. Germany, ECtHR, 9
July 2009, paras 78–81.
1248
The matter of abductions and other forms of arbitrary arrests will not be discussed in
the context of this chapter. For a detailed study on these forms of arbitrary arrests and the
related male captus bene detentus principle, see C. Paulussen, Male captus bene detentus?
Surrendering Suspects to the International Criminal Court (Antwerp: Intersentia, 2010).
1249
Smirnova v. Russia, ECtHR, 24 July 2003, para. 59. In addition to the ECtHR law, one
should mention Art. 9(3) ICCPR, according to which, it shall not be the general rule that
persons awaiting trial shall be detained in custody. Viewing detention on remand as
exceptional is of course closely related to the presumption of innocence, fundamental to
criminal proceedings.
1250
McKay v. UK, ECtHR, 3 October 2006, para. 42.
1251
Letellier v. France, ECtHR, 26 June 1991, para. 35.
1252
Letellier v. France (n 1251) para. 35.
1253
Letellier v. France (n 1251) para. 44.
1254
Bemba, AC, ICC, 16 August 2011, para. 55.
1255
In this respect, one can imagine that in case of individuals accused of serious
international crimes living outside the jurisdiction of the ICTY and ICTR the risk of flight, to
mention just one ground, may indeed be easily established.
1256
Clooth v. Belgium, ECtHR, 12 December 1991, para. 44; Smirnova v. Russia, ECtHR,
24 July 2003, para. 63.
1257
See Barayagwiza, AC, ICTR, 3 November 1999.
1258
See e.g. Murray v. UK, ECtHR, 28 October 1994; O’Hara v. UK, ECtHR, 18 October
2001; Fox, Campbell and Hartley v. UK, ECtHR, 30 August 1990.
1259
McKay v. UK, ECtHR, 3 October 2006, para. 43.
1260
E.g. with defendants Karemera, Ngirumpatse, Nzirorera, Bagosora, and
Hategekimana.
1261
Kanyabashi, AC, ICTR, 13 June 2001, at 3; Bagosora et al., TC, ICTR, 12 July 2002,
para. 22.
1262
Krajišnik, TC, ICTY, 8 October 2001, para. 22; Haradinaj et al., AC, ICTY, 9 March
2006, para. 23.
1263
Jetzsch v. Germany, ECommHR, 30 November 1970, para. 174.
1264
Lubanga, AC, ICC, 13 February 2007, para. 20.
1265
1266
Fox, Campbell and Hartley v. UK, ECtHR, 30 August 1990, para. 40.
1267
Semanza, AC, ICTR, 31 May 2000, para. 87.
1268
See Brogan and Others v. UK, ECtHR, 29 November 1988, para. 58.
1269
Brogan (n 1268) para. 62; De Jong Baljet and van den Brink v. the Netherlands,
ECtHR, 22 May 1984, paras 52–54; Öcalan v. Turkey, ECtHR, 12 March 2003, paras 104–
105.
1270
Rigopoulos v. Spain, ECtHR, 12 January 1999; Koster v. the Netherlands, ECtHR, 28
November 1991.
1271
Kajelijeli, AC, ICTR, 23 May 2005, paras 231–233; Rwamakuba, TC, ICTR, 12
December 2000, at 2.
1272
Barayagwiza, AC, ICTR, 3 November 1999, para. 90; Semanza, AC, ICTR, 31 May
2000, paras 113–114.
1273
Bemba, AC, ICC, 16 December 2008, para. 32.
1274
1275
A.M. van Kalmthout et al., Pre-trial detention in the European Union (Nijmegen: Wolf
Legal Publishers, 2009) 32–3.
1276
Section 495 of Canada’s Criminal Code; Sections 24 and 25 PACE 1984; Arts 61–65
Code of Criminal Procedure (France). For a more comprehensive comparative overview, see
Bradley (n 1087); M. Delmas-Marty and J.R. Spencer (eds), European Criminal Procedure
(Cambridge: Cambridge University Press, 2002).
1277
Kalmthout et al. (n 1275) 93.
1278
It is available under Art. 80(3) Code of Criminal Procedure (Netherlands).
1279
Raad voor Strafrechtstoepassing en Jeugdbescherming, ‘Voorlopige hechtenis—maar
dan anders, Verkenning van alternatieven in het kader van schorsing en tenuitvoerlegging’,
4 July 2011, at 16.
1280
See section 4.2 A.
1281
Kalmthout et al. (n 1275) 93.
1282
As such, the term ‘remedies’ in this chapter includes those judicial responses to
procedural violations typically referred to as ‘sanctions’.
1283
See D. Shelton, Remedies in International Human Rights Law (Oxford: Oxford
University Press, 2005) 7–10.
1284
Other examples of prosecutorial misconduct include improperly obtained evidence and
non-disclosure. For a discussion of the remedies available for breaches of disclosure
obligations, see e.g. K. Gibson and C. Lussiaà-Berdou, ‘Disclosure of Evidence’, in K.A.A.
Khan, Principles of Evidence in International Criminal Justice (Oxford: Oxford University
Press, 2010); S. Zappalà, ‘The Prosecutor’s Duty to Disclose Exculpatory Materials and the
Recent Amendment to Rule 68 ICTY RPE’ (2004) 2(2) JICJ 620. For the remedies available
for improperly obtained evidence, see e.g. Zahar and Sluiter (n 143) 379–87.
1285
This civil law remedy may have the same effect as the exclusion of evidence. The
annulment of an entire investigation should, however, be distinguished from a permanent
stay of proceedings. See n 1424.
1286
The purpose of the safeguards that were provided for was to ensure a fair trial for the
accused. For the IMT, see Art. 16 IMT Charter and Rule 2 IMT Rules of Procedure. For the
IMFTE, see Art. 9 IMFTE Charter.
1287
See, in this regard, Zappalà (n 5) 1184–5.
1288
A distinction may be drawn between ‘inherent powers’ and ‘implied powers’. See e.g.
Sluiter (n 510) 29–30.
1289
Barayagwiza, AC, ICTR, 3 November 1999, paras 91–92.
1290
Rule 5 SCSL RPE also envisages judicial relief in the event of non-compliance with
written rules, although the wording differs slightly from the relevant provision in the ICTY
and ICTR RPEs.
1291
This provision lacks a counterpart in the ICTR and SCSL RPEs.
1292
Barayagwiza, AC, ICTR, 3 November 1999, para. 76. See further Barayagwiza, para.
108. As Sluiter points out, although this decision was reviewed in Barayagwiza, AC, ICTR,
31 March 2000, the review ‘only concerned the choice for the remedies’ and ‘did not in any
way affect the guiding principles established in [Barayagwiza, AC, ICTR, 3 November
1999]’. See G. Sluiter, ‘International Criminal Proceedings and the Protection of Human
Rights’ (2002–03) 37(4) New England Law Review 935, 944–5.
1293
See e.g. A.L-T. Choo, Abuse of Process and Judicial Stays of Criminal Proceedings
(Oxford: Oxford University Press, 2008) 109; P. Mirfield, Silence, Confessions and
Improperly Obtained Evidence (Oxford: Oxford University Press, 1997) 22.
1294
As will be seen later, there are two limbs to the abuse of process doctrine at the ad
hoc Tribunals. See n 1318 and accompanying text. That integrity is the primary rationale
behind a stay, above deterrence and the provision of an effective remedy, is apparent from
the AC’s findings in the Barayagwiza case.
1295
See Choo (n 1293) 110.
1296
See n 1338 and accompanying text.
1297
1298
As Schabas points out: ‘The travaux préparatoires confirm the intent of the drafters to
align the rights contained in Article 85 with the relevant provisions of the ICCPR.’ See
1299
Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-01/06-772), paras 36–37, 39 and 44.
In other words, the fair trial references in these paragraphs are not limited to ‘trial
fairness’, i.e. the right to a fair trial proper, but ‘[embrace] the judicial process in its
entirety’. Lubanga, para. 37.
1300
In considering whether it could impose a stay of proceedings, the AC held that the
question was whether victims of human rights violations had a ‘remedy for or protection
against breaches of his/her basic rights’. Lubanga, AC, ICC, 14 December 2006
(ICC-01/04-01/06-772), para. 37.
1301
See e.g. Sarmento et al., SPSC, 22 March 2002, para. 39.
1302
See further Rule 76 ECCC IR, on ‘Applications Concerning Procedural Defects’.
1303
Nuon Chea et al., PTC, ECCC, 26 August 2008, paras 38–40. See further Khieu
Samphan, ECCC, 29 September 2009, para. 12; and Ieng Thirith, PTC, ECCC, 25 June 2010,
para. 21.
1304
Ieng Thirith, PTC, ECCC, 25 June 2010, para. 1. See further para. 27.
1305
Ieng Thirith (n 1304) paras 1 and 27.
1306
See e.g. Nuon Chea et al., PTC, ECCC, 26 August 2008, paras 38–40, where the PTC
recognized the right to an effective remedy; and Kaing Guek Eav, TC, ECCC, 15 June 2009,
paras 16 and 31–37.
1307
See Barayagwiza, AC, ICTR, 3 November 1999, paras 108–110.
1308
Brđanin and Talić, TC, ICTY, 16 May 2001, para. 5 (emphasis added).
1309
Blagojević, AC, ICTY, 7 November 2003, para. 7.
1310
Barayagwiza et al., AC, ICTR, 4 August 2004 (emphasis added). See further Blagojević,
AC, ICTY, 7 November 2003.
1311
Violations of the rights of the suspect or accused in the context of arrest and pre-trial
detention will not usually affect the fairness of the trial itself (fair trial in the narrow sense),
but may (if sufficiently serious) undermine the integrity of the proceedings.
1312
See e.g. Barayagwiza, AC, ICTR, 3 November 1999; D. Nikolić, TC, ICTY, 9 October
2002; and D. Nikolić, AC, ICTY, 5 June 2003. The SCSL AC has further held that the basis
for such a stay is the doctrine of abuse of process. See Brima et al., AC, SCSL, 13 March
2004 (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty), paras 76 and 79.
1313
Barayagwiza, AC, ICTR, 3 November 1999, para. 74. For the SCSL, see Brima et al.,
TC, SCSL, 31 March 2004, paras 22 and 24.
1314
See D. Nikolić, AC, ICTY, 9 January 2003, at 3; Boškoski and Tarčulovski, AC, ICTY, 9
January 2007, para. 5; Tolimir, AC, ICTY, 12 March 2009, paras 11–12; and Karadžić, TC,
ICTY, 8 July 2009, para. 41. See, however, Brđanin, TC, ICTY, 8 December 1999, para. 6 and
Kanyabashi, TC, ICTR, 23 May 2000, paras 28–30.
1315
K.A.A. Khan and R. Dixon, Archbold International Criminal Courts—Practice,
Procedure and Evidence, 3rd edn (London: Sweet & Maxwell, 2009) 111.
1316
See D. Nikolić, AC, ICTY, 9 January 2003, at 3; and Tolimir, AC, ICTY, 12 March 2009,
para. 13.
1317
See, in this regard, Brima et al., TC, SCSL, 31 March 2004, para. 18.
1318
Barayagwiza, AC, ICTR, 3 November 1999, para. 77. The two ‘situations’ referred to
by the AC reflect the two limbs of the abuse of process doctrine in the English case R. v.
Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42. The rationale
underlying the first limb (the ‘fair trial’ limb) is the protection of the defendant from
wrongful conviction, whereas the rationale underlying the second (the ‘fairness to try’ limb)
is to preserve the integrity of the court.
1319
Barayagwiza, AC, ICTR, 3 November 1999, para. 77.
1320
Barayagwiza (n 1319) paras 73–75. See further the AC in the ICTY case of Karadžić. In
that case, the AC confirmed that there are two limbs to the abuse of process doctrine (fair
trial and integrity) and that the AC’s finding in Barayagwiza that, invoking the abuse of
process doctrine as a matter of discretion ‘is a process by which [j]udges may decline to
exercise the court’s jurisdiction in cases where to exercise that jurisdiction in light of
serious and egregious violations of the accused’s rights would prove detrimental to the
court’s integrity’ (Karadžić, para. 74), refers to the second limb. See Karadžić, AC, ICTY, 12
1321
Barayagwiza, AC, ICTR, 3 November 1999, para. 73.
1322
Barayagwiza (n 1321) para. 73. This decision was criticized in the case of Norman et
al., AC, SCSL, 25 May 2004, para. 54.
1323
Barayagwiza, AC, ICTR, 31 March 2000 (Decision (Prosecutor’s Request For Review
Or Reconsideration)), paras 74–75.
1324
D. Nikolić, TC, ICTY, 9 October 2002, para. 111 and D. Nikolić, AC, ICTY, 5 June 2003,
paras 29–33.
1325
Karadžić, AC, ICTY, 12 October 2009, para. 51.
1326
D. Nikolić, TC, ICTY, 9 October 2002, para. 111.
1327
Nikolić (n 1326) para. 114. See further Norman et al., AC, SCSL, 25 May 2004, para.
53.
1328
1329
D. Nikolić, TC, ICTY, 9 October 2002, para. 114 (emphasis added).
1330
1331
D. Nikolić, TC, ICTY, 9 October 2002, para. 114 (emphasis added). See further paras
106 and 113, where the involvement of the prosecuting forum is identified as a factor
weighing in favour of finding that a human rights violation has occurred. See further Brima
et al., TC, SCSL, 31 March 2004, para. 26. The SCSL TC observed that: ‘A finding of
impropriety on the part of one party may … contribute to the ultimate finding that a
violation of the rights of an accused has reached such a threshold as to undermine the
integrity of the proceedings.’
1332
It is noteworthy that while the AC in Barayagwiza refers to ‘serious and egregious’
violations of the Accused’s rights (Barayagwiza, AC, ICTR, 3 November 1999, para. 74), in
Nikolić (D. Nikolić, TC, ICTY, 9 October 2002, para. 114; D. Nikolić, AC, ICTY, 5 June 2003,
para. 32) and in Karadžić (Karadžić, TC, ICTY, 8 July 2009, para. 85; Karadžić, AC, ICTY, 12
October 2009, para. 47) the TC and AC referred only to ‘egregious’ violations.
1333
Another factor weighing in favour of the setting aside of jurisdiction may be the
‘intensity’ of the violation of the rights of the accused. Barayagwiza, AC, ICTR, 31 March
2000, para. 71.
1334
D. Nikolić, AC, ICTY, 5 June 2003, para. 30. See further Kajelijeli, AC, ICTY, 23 May
2005, para. 206.
1335
D. Nikolić, AC, ICTY, 5 June 2003, para. 30.
1336
Brđanin and Talić, TC, ICTY, 16 May 2001, para. 5.
1337
Barayagwiza, AC, ICTR, 3 November 1999, paras 106–113.
1338
Barayagwiza, AC, ICTR, 31 March 2000, para. 74. See further Semanza, AC, ICTR, 31
May 2000.
1339
See e.g. Semanza, AC, ICTR, 31 May 2000 and Karadžić, TC, ICTY, 31 August 2009.
1340
Rwamakuba, TC, ICTR, 31 January 2007, as confirmed on appeal in Rwamakuba, AC,
ICTR, 13 September 2007.
1341
Barayagwiza, AC, ICTR, 31 March 2000, para. 74; Semanza, AC, ICTR, 31 May 2000,
para. 125
1342
Paulussen (n 1248) 518.
1343
Karadžić, TC, ICTY, 31 August 2009, para. 6. For Karadžić’s arguments in this regard,
see Karadžić, Defence, ICTY, 24 August 2009.
1344
Karadžić, TC, ICTY, 31 August 2009, para. 6. Nevertheless, the TC’s language appears
cautious in this regard.
1345
See Rwamakuba, TC, ICTR, 31 January 2007, and Rwamakuba, AC, ICTR, 13
September 2007.
1346
Letter dated 19 September 2000 from the President of the International Criminal
Tribunal for the Former Yugoslavia Addressed to the Secretary-General, annexed to Letter
Dated 26 September 2000 from the Secretary-General Addressed to the President of the
Security Council, UN Doc. S/2000/904 and Letter dated 26 September from the President of
the International Criminal Tribunal for Rwanda Addressed to the Secretary-General,
annexed to Letter dated 28 September 2000 from the Secretary-General Addressed to the
President of the Security Council, UN Doc. S/2000/925.
1347
S. Zappalà, ‘Compensation to an Arrested or Convicted Person’, in Cassese/Gaeta/
Jones (eds), The Rome Statute 1582.
1348
S. Beresford, ‘Redressing the Wrongs of the International Justice System:
Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc
Tribunals’ (2002) 96(3) American Journal of International Law 628, 641.
1349
To date, the Security Council does not appear to have addressed this issue. See
further Judge Shahabuddeen in his separate opinion to Rwamakuba, AC, ICTR, 13
September 2007 (sep. op. of Judge Shahabuddeen), noting the ‘long silence’ of the Security
Council in this regard.
1350
Rwamakuba, TC, ICTR, 31 January 2007, para. 58.
1351
Rwamakuba (n 1350) the Disposition.
1352
Hirondelle News Agency, ‘ICTR Compensates Genocide Acquitted Person For Legal
Discrepancy’, 27 February 2008, available at <http://www.hirondellenews.com/ictr-rwanda/
363-trials-ended/rwamakuba-andre/21559-en-en-270208-ictrrwamakuba-ictr-compensates-
genocide-acquitted-person-for-legal-discrepancy1061010610> (last visited 05 February
2013).
1353
Hirondelle News Agency, ‘The ICTR Registrar Is Unable to Enforce a Judgment of the
ICTR’, 18 September 2007, available at <http://www.hirondellenews.com/content/view/
9936/131> (last visited 13 February 2011).
1354
Rwamakuba, AC, ICTR, 13 September 2007, para. 30.
1355
That the ad hoc Tribunals and, in particular, TC’s have the authority to order financial
compensation was confirmed in the ICTY case of Karadžić. See Karadžić, TC, ICTY, 31
August 2009, para. 5.
1356
Remedial sentence reduction should be distinguished from the procedural step
envisaged in Rule 101(C) ICTY and ICTR RPEs, pursuant to which: ‘Credit shall be given to
the convicted person for the period, if any, during which the convicted person was detained
in custody pending [his] surrender to the Tribunal or pending trial or appeal.’
1357
Barayagwiza, AC, ICTR, 31 March 2000, paras 74–75.
1358
Barayagwiza et al., TC, ICTY, 3 December 2003, para. 1107; Barayagwiza et al., AC,
ICTR, 28 November 2007, para. 1097.
1359
See Semanza, AC, ICTR, 31 May 2000, para. 129 and the ‘Disposition’.
1360
Semanza, TC, ICTR, 15 May 2003, paras 579–580, as upheld in Semanza, AC, ICTR, 20
May 2005, paras 323–329.
1361
Kajelijeli, TC, ICTR, 1 December 2003, para. 968.
1362
Kajelijeli, AC, ICTY, 23 May 2005, paras 255 and 320–324.
1363
Karadžić, TC, ICTY, 31 August 2009, para. 5. In so doing, the TC confirmed the
availability of sentence reduction as a remedy at the ICTY for violations of an accused’s
rights.
1364
Semanza, AC, ICTR, 31 May 2000, para. 125.
1365
Rwamakuba, AC, ICTR, 13 September 2007, para. 27, note 102.
1366
Bagosora et al., TC, ICTY, 18 December 2008 (Judgement and Sentence), paras 96–97.
1367
Karadžić, TC, ICTY, 29 March 2011, at 17.
1368
Karadžić (n 1367) 18.
1369
See e.g. Karadžić, TC, ICTY, 22 November 2011, para. 37, note 68.
1370
1371
1372
Lubanga, AC, ICC, 21 October 2008 (ICC-01/04-01/06-1486), para. 79.
1373
Lubanga, AC, ICC, 8 October 2010 (ICC-01/04-01/06-2582), para. 55. See further
Lubanga, TC, ICC, 7 March 2011, para. 168.
1374
See e.g. Lubanga, TC, ICC, 7 March 2011, paras 166, 189, 195, 203–204, 209, 212,
217, and 222.
1375
See Lubanga, AC, ICC, 21 October 2008 (ICC-01/04-01/06-1486), paras 77–79;
Lubanga, AC, ICC, 8 October 2010 (ICC-01/04-01/06-2582), para. 55; Katanga and
Ngudjolo, AC, ICC, 12 July 2010, para. 48, note 95. See further Mbarushimana, PTC, ICC, 1
July 2011, at 4–5.
1376
1377
The second statement in Lubanga does, however, appear to refer to trial fairness (fair
trial narrowly construed).
1378
Teixeira de Castro v. Portugal, ECtHR, 9 June 1998.
1379
1380
Choo (n 1293) 188.
1381
1382
Lubanga (n 1381) para. 35; Lubanga, AC, ICC, 21 October 2008
(ICC-01/04-01/06-1486), para. 77.
1383
Lubanga, AC, ICC, 14 December 2006 (ICC-01/04-01/06-772), para. 35. The notion of
inherent or implied powers at the ICC is perhaps more controversial than at the ad hoc
Tribunals. See e.g. B. Swart and G. Sluiter, ‘The International Criminal Court and
International Criminal Co-operation’, in H.A.M. von Hebel et al. (eds), Reflections on the
International Criminal Court: Essays in Honour of Adriaan Bos (The Hague: T.M.C. Asser
Press, 1998) 102–3.
1384
1385
Lubanga (n 1383) para. 36. See further Mbarushimana, PTC, ICC, 1 July 2011, at 4.
1386
Y.Q. Naqvi, Impediments to Exercising Jurisdiction over International Crimes (The
Hague: T.M.C. Asser Press, 2010) 332.
1387
1388
1389
1390
1391
See n 1311.
1392
1393
1394
Mbarushimana, PTC, ICC, 1 July 2011, at 4–5.
1395
Lubanga, PTC, ICC, 3 October 2006, at 9–11; Lubanga, AC, ICC, 14 December 2006
(ICC-01/04-01/06-772), para. 42.
1396
1397
1398
1399
In particular, it is unclear whether the AC’s confirmation of the PTC’s findings relates
to the PTC’s finding that ‘whenever there is no concerted action between the [ICC] and the
authorities of the custodial State, the abuse of process doctrine constitutes an additional
guarantee of the rights of the accused; and that to date, the application of this doctrine …
has been confined to instances of torture or serious mistreatment by national authorities …
in some way related to the process of arrest and transfer’, or to the PTC’s factual finding
that ‘no issues [have] arisen to any alleged acts of torture against or serious mistreatment
of Thomas Lubanga Dyilo by the [Congolese] national authorities’. For the PTC’s findings,
see Lubanga, PTC, ICC, 3 October 2006, at 10.
1400
See e.g. Sluiter (n 1196) 471; and C. Ryngaert, ‘The Doctrine of Abuse of Process: A
Comment on the Cambodia Tribunal’s Decisions in the Case against Duch’ (2008) 21(3)
Leiden Journal of International Law 719, 735–6.
1401
See Paulussen (n 1248) 897–900.
1402
1403
Katanga and Ngudjolo, AC, ICC, 12 July 2010, para. 41.
1404
Katanga and Ngudjolo (n 1403) para. 48.
1405
1406
1407
See Rule 175 ICC RPE, which speaks of ‘amount of compensation’, thereby implying
financial compensation.
1408
C. Staker, ‘Article 85’, in Triffterer (ed.), Commentary on the Rome Statute 1501.
1409
Similarly, in cases of acquittal, the ‘injustice’ required in Art. 85(3) ICC Statute goes
beyond the fact that, prior to being acquitted, the person concerned was detained. Such
circumstances do not, by themselves, constitute a grave and manifest miscarriage of justice
(after all, an acquittal does not per se affect the legitimacy of the prior detention).
Nevertheless, Michels argues for a broader compensation right for acquitted persons before
the ad hoc Tribunals and the ICC. See J.D. Michels, ‘Compensating Acquitted Defendants for
Detention Before International Criminal Courts’ (2010) 8(2) JICJ 407.
1410
Schabas, The International Criminal Court 966. See further G. Bitti, ‘Compensation to
an Arrested or Convicted Person’, in Lee, R.S. (ed.), The International Criminal Court.
Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational
Publishers, 2001) 628.
1411
1412
1413
This has been subject to criticism in the literature. See e.g. Zappalà (n 1347) 1584 and
Zappalà (n 9) 75.
1414
Staker (n 1408) 1502.
1415
The trust fund envisaged by Art. 79 ICC Statute ‘for the benefit of victims of crimes
within the jurisdiction of the [ICC], and of the families of such victims’ is clearly not
intended for such purposes.
1416
See Arts 114–115 ICC Statute.
1417
In Katanga, the Defence sought relief for alleged violations of the suspect’s rights
surrounding his arrest and detention by the national authorities. The relief sought included
sentence reduction (in the event of a conviction). See Katanga and Ngudjolo, TC, ICC, 2 July
2009. In the end, however, the defence allegations were dismissed on technical grounds
and, as such, the merits were not considered. See Katanga and Ngudjolo, TC, ICC, 3
December 2009. The TC’s decision was subsequently upheld on appeal. See Katanga and
Ngudjolo, AC, ICC, 12 July 2010. Whilst in the Lubanga case the TC did not consider the
alleged prosecutorial misconduct to ‘merit a reduction in … sentence’, nor did it reject the
availability of sentence reduction as a remedy for rights violations. See Lubanga, TC, ICC,
10 July 2012, para. 90.
1418
Although Rule 175 ICC RPE speaks of ‘amount of compensation’, which implies
financial compensation, Rule 175 applies only to Art. 85(3) ICC Statute, which in turn
applies to those acquitted and persons otherwise released. Obviously, in such cases,
sentence reduction could never be a remedy.
1419
Lubanga, AC, ICC, 8 October 2010 (ICC-01/04-01/06-2582), paras 59–61.
1420
1421
Schabas, The International Criminal Court 859–60.
1422
Judicial System Monitoring Programme, ‘Dili District Court Final Report 2003’,
November 2003, at 42.
1423
Benjamin Sarmento et al., SPSC, 22 March 2002, paras 39 and 70.
1424
Ieng Thirith, PTC, ECCC, 25 June 2010, para. 27.
1425
Kaing Guek Eav, TC, ECCC, 15 June 2009, para. 33; and Ieng Thirith, PTC, ECCC, 10
August 2010, paras 20–28.
1426
Ieng Thirith, PTC, ECCC, 10 August 2010, para. 27.
1427
Ieng Thirith (n 1426) para. 28.
1428
Kaing Guek Eav, OCIJ, ECCC, 31 July 2007, para. 1.
1429
Kaing Guek Eav (n 1428) para. 3.
1430
1431
Kaing Guek Eav (n 1428) para. 21. This approach was confirmed on appeal, where the
PTC observed that the ‘Trial Chamber and Supreme Court Chamber may determine … that
it is appropriate to take any previous provisional detention, whether or not it was illegal,
into account at a later stage of the proceedings’. See Kaing Guek Eav, PTC, ECCC, 3
December 2007, para. 25.
1432
Kaing Guek Eav, PTC, ECCC, 3 December 2007, paras 15 and 21. It should be noted,
however, that while the Co-Investigating Judges’ Order of Provisional Detention, Kaing
Guek Eav, OCIJ, ECCC, 31 July 2007, refers explicitly to the abuse of process doctrine, the
PTC does not. See, in this regard, Ryngaert (n 1400) 727–8. In any case, the requirement of
concerted action was confirmed by the TC in Kaing Guek Eav, TC, ECCC, 15 June 2009,
para. 32.
1433
Kaing Guek Eav, TC, ECCC, 15 June 2009, para. 33.
1434
1435
Kaing Guek Eav (n 1433) paras 21 and 30.
1436
Kaing Guek Eav (n 1433) paras 22–26.
1437
Kaing Guek Eav (n 1433) paras 36–37 and the Disposition.
1438
Kaing Guek Eav, TC, ECCC, 26 July 2010, paras 627 and 632.
1439
Kaing Guek Eav, SC, ECCC, 3 February 2012 (‘Appeal Judgment’), para. 395.
1440
1441
In an earlier draft of Rule 170(D), however, this does not appear to be the case: ‘An
accused released from detention following a final decision of acquittal who considers
himself to have been unlawfully arrested or detained or to have been the victim of a serious
miscarriage of justice may file a request for compensation or other appropriate redress
within three months of the issuance of the final judgment.’ See further the earlier draft of
Rule 170(E), as set out in the official STL ‘Summary of the Accepted Rule Amendments and
Some Key Rejected Rule Amendment Proposals Pursuant to Rule 5(I) of the Special Tribunal
for Lebanon’s Rules of Procedure and Evidence’, November 2010, at 75.
1442
Rule 170(D) STL RPE (emphasis added). In an earlier draft of Rule 170(D), however,
this does appear to be the case. See the official STL ‘Summary of the Accepted Rule
Amendments and Some Key Rejected Rule Amendment Proposals Pursuant to Rule 5(I) of
the Special Tribunal for Lebanon’s Rules of Procedure and Evidence’, November 2010.
1443
S.B. Starr, ‘Rethinking “Effective Remedies”: Remedial Deterrence in International
Courts’ (2008) 83(3) New York University Law Review 693, 703.
1444
Nowak (n 647) 62.
1445
HRC General Comment No. 31, para. 16.
1446
C. Schleker, ‘Reparations’, in D.P. Forsythe (ed), Encyclopedia of Human Rights, Vol. 4
1447
International Commission of Jurists, ‘The Right to a Remedy and to Reparation for
Gross Human Rights Violations. A Practitioners’ Guide’, 2006, at 111.
1448
‘The Right to a Remedy’ (n 1447) 111.
1449
‘The Right to a Remedy’ (n 1447) 123.
1450
Germany v. Poland, ICJ, 13 September 1928, at 47.
1451
UN Principles on Responsibility of States for Internationally Wrongful Acts, UNGA
Res. 56/83, 28 January 2002, UN Doc. A/RES/56/83, Annex, Art. 35(b).
1452
Starr (n 1443) 699.
1453
Nowak (n 647) 237.
1454
D.J. Harris et al., Law of the European Convention on Human Rights (Oxford: Oxford
University Press, 2009) 197.
1455
Harris et al. (n 1454) 197. See further M. Macovei, Human rights handbooks, No. 5:
The right to liberty and security of the person. A guide to the implementation of Article 5 of
the European Convention on Human Rights (Strasbourg: Council of Europe, 2002) 69.
1456
Bozano v. France, ECommHR, 15 May 1984, at 119.
1457
Nowak (n 647) 238.
1458
Harris et al. (n 1454) 197.
1459
Nowak (n 647) 239.
1460
Harris et al. (n 1454) 197.
1461
Harris et al. (n 1454) 197, referring to the Decisions, Attard v. Malta, ECtHR, 28
September 2000 and Cumber v. UK, ECtHR, 27 November 1996.
1462
Kajelijeli, AC, ICTY, 23 May 2005, para. 255. See further para. 322. See further
Rwamakuba, AC, ICTR, 13 September 2007, para. 25.
1463
Rwamakuba, AC, ICTR, 13 September 2007, para. 27, referring to Semanza, AC, ICTR,
31 May 2000, para. 125.
1464
E.g. Barayagwiza, AC, ICTR, 3 November 1999 (Decision), paras 74–75; Semanza, AC,
ICTR, 31 May 2000, para. 129 and the Disposition; Kajelijeli, AC, ICTY, 23 May 2005, para.
255.
1465
Starr (n 1443) 704.
1466
Starr (n 1443) 703–4.
1467
See further Tolimir, TC, ICTY, 18 December 2008, para. 12. For the decision on the
previous Defence motion, see Decision on Preliminary Motions on the Indictment pursuant
to Rule 72 of the Rules, Tolimir, TC, ICTY, 14 December 2007.
1468
Until now, the right to an effective remedy has only been addressed (explicitly) by the
ICC in the context of victim participation, i.e. participation in ICC proceedings of victims of
gross human rights violations (see e.g. Bemba, PTC, ICC, 12 December 2008, para. 17) and
in the context of the right to seek asylum (Katanga and Ngudjolo, TC, ICC, 9 June 2011,
paras 62 and 69–70).
1469
Lubanga, PTC, ICC, 8 November 2006, para. 10.
1470
As appears to have occurred in Lubanga, AC, ICC, 14 December 2006
(ICC-01/04-01/06-772). See further Sluiter (n 1196) 471.
1471
Bitti (n 1410); and Zappalà (n 1347) 1579.
1472
R. v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, 74 per
Lord Lowry.
1473
See R. v. Regan [2002] 1 SCR 297.
1474
See Art. 359a Code of Criminal Procedure (Netherlands).
1475
1476
1477
Bitti (n 1410); and Zappalà (n 1347) 1579.
1478
Staker (n 1408) 1501.
1479
In the Netherlands, for example, remedial sentence reduction is provided for in Art.
359a(1)(a) Code of Criminal Procedure (Netherlands). For an example of an adversarial
system, see Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72. As Starr points
out, however, remedial sentence reduction ‘is essentially unknown in U.S. courts’. See S.B.
Starr, ‘Sentence Reduction as a Remedy for Prosecutorial Misconduct’ (2009) 97(6) The
Georgetown Law Journal 1509, 1511.
1480
See e.g. Chraidi v. Germany, ECtHR, 26 October 2006, paras 24–25; Scordino v. Italy,
ECtHR, 29 March 2006, paras 185–186; Mathew v. the Netherlands, ECtHR, 29 September
2005, paras 146–149 (as referred to by Starr (n 1479) 1511, note 3).
1481
See e.g. Golder v. UK, ECtHR, 21 February 1975.
1482
B. Swart, ‘Commentary’, in A. Klip and G. Sluiter (eds), Annotated Leading Cases of
the International Criminal Tribunals, Vol. II: The International Criminal Tribunal for
Rwanda 1994–1999 (Antwerp: Intersentia, 2001) 201.
1483
Swart (n 1482) 201.

Investigation - Coercive - Measures Arrest Criminal Law PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Investigation - Coercive - Measures Arrest Criminal Law PDF

Uploaded by

Copyright:

Available Formats

3 Investigation, Coercive Measures, Arrest, and

From: International Criminal Procedure: Principles and Rules

Content type: Book content

(p. 170) (p. 171) 3 Investigation, Coercive Measures,

3.1 Non-Coercive Investigative Acts 212

3.1.1 Interrogation of Suspects and Accused Persons 214

3.2 Non-Custodial Coercive Investigative Acts 282

4. RESTRICTION AND DEPRIVATION OF LIBERTY 312

4.1 Arrest 313

5. REMEDIES 351

5.1 General Framework 352

2. Investigation Phase: Delineation and Scope

… admissibility at the situation phase should be assessed against certain criteria

In comparison, the draft Regulations expressly provided for ‘truth-seeking standards’,

A duty of due diligence in the conduct of investigations is incumbent on the parties

ii. General rules

The defence may conduct its own investigations.

3. Collection Of Evidence

A. LAW AND PRACTICE OF INTERNATIONAL CRIMINAL TRIBUNALS 214

i. IMT AND IMTFE 214

B. EVALUATION 244

i. HUMAN RIGHTS LAW 244

C. GENERAL RULES AND PRINCIPLES OF INTERNATIONAL CRIMINAL PROCEDURE 253

i. PRINCIPLES 253

D. RECOMMENDATIONs 254

3.1.2 Questioning of Witnesses 255

A. LAW AND PRACTICE OF INTERNATIONAL CRIMINAL TRIBUNALS 255

i. IMT AND IMTFE 255

B. EVALUATION 276

i. HUMAN RIGHTS 276

i. PRINCIPLES 281

D. RECOMMENDATIONS 281

The fundamental difference between an accused and a witness may result in an

Questioning which by its nature, duration or other attendant circumstances

c. Right to be informed of the charges or allegations

Normally, interrogations of suspects or accused shall be audio-recorded or video-recorded.

ii. General rules

[Rule 112(2) ICC RPE; Rule 25(2) ECCC IR]

[Rule 112(4) ICC RPE; Rule 25(4) ECCC IR]

The prosecutor shall make a record of the witness interview.

ii. General rules

3.2 Non-Custodial Coercive Investigative Acts

i. IMT AND IMTFE 283

a. DIRECT ENFORCEMENT V. REQUESTS FOR JUDICIAL ASSISTANCE 283

b.1. Judicial authorization 284

c. SEARCH AND SEIZURE OPERATIONS 287

iii. ICC 292

a. DIRECT ENFORCEMENT V. REQUESTS FOR JUDICIAL ASSISTANCE 292

b.1. Judicial authorization 293

c. SEARCH AND SEIZURE OPERATIONS 294

iv. SPSC 298

a. FORMAL AND MATERIAL CONDITIONS 298

v. ECCC 299

a. FORMAL AND MATERIAL CONDITIONS 299

vi. STL 301

a. FORMAL AND MATERIAL CONDITIONS 301

vii. SYNTHESIS 302

B. EVALUATION 303

i. HUMAN RIGHTS LAW 303

a. REQUIREMENT OF JUDICIAL AUTHORIZATION 303

ii. COMPARATIVE CRIMINAL PROCEDURE 306

a. REQUIREMENT OF JUDICIAL AUTHORIZATION 306

C. GENERAL RULES AND PRINCIPLES OF INTERNATIONAL CRIMINAL PROCEDURE 311