|
|
|
Email this citation
Fairness to Defendants at the International Criminal Court:
Proposals to Strengthen the Draft Statute and its Protection of Defendants' Rights
*
The Lawyers Committee for Human Rights **
Lawyers Committee for Human Rights
August 1996
Table of Contents
-
The Preamble
-
Rights of Suspects and Defendants
-
Trial in Absentia
-
Indictment Chambers
-
Provisional Arrest
-
Pre-Trial Discovery
-
Public Trial
-
Conviction by Majority Vote
-
Appeals by the Prosecutor
The Lawyers Committee for Human Rights (LCHR) strongly supports the creation of an International Criminal Court (ICC). The international community now has a unique opportunity to bring to fruition efforts over several decades to create a permanent international tribunal to enforce human rights and humanitarian law. The Lawyers Committee urges governments to support the work of the Preparatory Committee and to move forward to the earliest possible establishment of a fair and effective International Criminal Court.
In establishing the International Criminal Court it is of fundamental importance that the highest international standards of fairness and due process be followed. The overriding justification for the creation of an International Criminal Court is the compelling need for an effective international institution to prevent, prosecute and punish serious violations of human rights and humanitarian law. In attempting to achieve these objectives, it is essential that the International Criminal Court itself observe with scrupulous care the human rights of the defendants brought before the Court. The procedures followed in proceedings before the Court must be fair and be perceived as fair by the international community. This will ensure that its judgments are universally accepted by the world community and that they carry the weight of moral condemnation which the nature of the crimes brought before the Court warrants.
The draft Statute prepared by the International Law Commission goes a long way toward achieving this fundamental goal. Among other things, Article 41 of the draft Statute includes most (though not all) of the rights guaranteed to defendants in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), including the right to consult with counsel, to be tried without undue delay, to be present at the trial, to cross-examine the prosecution's witnesses, to call defense witnesses, and the right of a defendant not to be compelled to testify against oneself. Nevertheless, in other respects the procedures specified in the draft Statute fall short of meeting the highest international standards of due process.
The Lawyers Committee has therefore reviewed the provisions of the draft Statute with particular regard to its provisions relating to the rights of suspects and defendants brought before the Court. The Lawyers Committee offers the following observations and suggestions to strengthen the Statute's due process protections, with the objective of ensuring that the Statute observes the highest standards of fairness to suspects and defendants.
The draft Statute contains a preamble which sets out the fundamental purposes of the Statute. The Preamble refers to three fundamental principles: the goal of "effective prosecution and suppression of crimes of international concern"; the limited nature of the jurisdiction to be conferred on the Court; and the principle that the Court is intended to be complementary to national criminal justice systems.
The Lawyers Committee urges that the Preamble be amended to add a fourth fundamental principle: that all proceedings of the Court should be conducted in accordance with the highest international standards of fairness and due process. This principle is fundamental to the integrity of the Court, its proceedings and judgments. Incorporating it into the Preamble would be a significant way to emphasize that this is an essential attribute of the Court. In addition, the Commentary to the draft Statute submitted by the International Law Commission explains that one of the purposes of the Preamble is "to assist in the interpretation and application of the Statute." In light of the importance of the principle of fairness to defendants, it is appropriate that any questions of interpretation or application of the Statute which may arise should be decided with this fundamental principle in mind.
2. Rights of Suspects and Defendants
The draft Statute does not incorporate the full range of international standards protecting the rights of suspects and the right of the accused to a fair trial. Article 41 specifies the rights of the accused, including the right to be informed promptly of the charges against him ; the right to communicate with counsel of his choosing; the right to adequate time and facilities to prepare a defense; the right to be tried without undue delay; the right, in general, to be present at trial; the right to legal assistance, including the right to appointed counsel if the accused is unable to pay for counsel; the right to examine the witnesses against him; the right to obtain the attendance of witnesses in his defense; the right to translation of documents and proceedings; and the right not to be compelled to incriminate himself. In addition, Article 26, relating to the rights of suspects, also makes clear that the scope of the accused's right against self-incrimination includes the right "to remain silent, without such silence being a consideration in the determination of guilt or innocence." (Art. 26, 6(a)(i)).
This impressive array of rights is taken principally from Article 14 of the ICCPR, and incorporates most of the rights recognized therein. But the rights recognized in the Statute unaccountably omit some rights guaranteed under the ICCPR and non-treaty standards pertaining to the right to a fair trial. The Statute thus omits the accused's fundamental right to equal treatment under the law, as specified in the ICCPR, Article 14, Paragraph 1. It also does not make clear that a suspect has, for example, the right to prompt access to a lawyer and the right to communicate confidentially with his lawyer, as mandated by the Basic Principles on the Role of Lawyers.
The Lawyers Committee urges that the Statute be amended either to expressly provide for, or incorporate by reference, the relevant international standards guaranteeing the fair trial rights of suspects and the accused, including the relevant provisions of the ICCPR, the Universal Declaration of Human Rights, the fair trial guarantees of the Geneva Conventions, the United Nations Convention against Torture, and other documents drafted under United Nations auspices providing for the protection of the rights of detainees and defendants. The Statute should also make clear that the listing of certain rights is not intended to be exhaustive, thus leaving room for the incorporation of additional rights that may be recognized in the future.
Article 37 of the Statute states as a "general rule" that "the accused should be present during the trial." (Art. 37, 1). The Lawyers Committee fully supports this basic principle. The general prohibition of trials in absentia, which was also included in the Statute and Rules of the Ad Hoc Tribunal for the Former Yugoslavia, marks a significant advance over earlier international practice.
However, Article 37 permits exceptions from this general rule in a variety of situations. (Art 37, 2). While there may be some narrowly limited circumstances in which the Court may properly proceed in the absence of the defendant, the exceptions permitted by Article 37 are far too broad, and allow trials in absentia in situations where there is no justification for it.
In particular, Paragraph 2(a) of Article 37 permits the trial to proceed in the absence of the accused if it is "undesirable for the accused to be present" for "reasons of security or the ill health of the accused." The Lawyers Committee sees no justification for proceeding in the absence of the accused for "security reasons." While there may be reasonable concerns for the security of witnesses or the defendant in many cases, the Court can find appropriate ways to insure adequate security without excluding the accused from the trial. Security concerns cannot properly be used to deprive the defendant of his fundamental right to attend the trial.
Similarly, the ill-health of the accused may require a postponement of the trial and its continuance when the defendant's health permits him to attend. There is no justification for using the defendant's ill-health as a basis for proceeding in his absence. If the defendant is so seriously ill that he will be unable to stand trial for the foreseeable future, or may never be able to stand trial, then charges must be held in abeyance until and unless the defendant's health improves sufficiently to enable him to stand trial.
Article 37 also allows trials in absentia where "the accused has escaped from lawful custody. . . or has broken bail" or where he is "continuing to disrupt the trial." These may be grounds for concluding that the accused has deliberately waived his right to appear at trial in an appropriate case, but only if these grounds are much more carefully limited. The Lawyers Committee believes that the trial may proceed in the absence of the accused only where he has escaped from custody or broken bail after the trial has commenced, and Article 37, Paragraph 2(c) should be limited accordingly. Similarly, it may be permissible to exclude a defendant from the trial on the basis of his disruptive behavior, but only if his disruptive behavior is sufficiently serious as to make it impossible to proceed with the trial in his presence; if he is warned that exclusion from the trial will be the result of his continuing disruptive behavior; and if he is advised at the time he is excluded from the trial that he has the right to resume his attendance at the trial at any time if he is prepared to end his disruptive behavior.
Article 37 specifies a procedure for the creation of an Indictment Chamber "[i]n cases where a trial cannot be held because of the deliberate absence of an accused." (Art. 37, 4). The Indictment Chamber will allow the Prosecutor to publicly present the evidence he has gathered against the accused, and to have that evidence recorded and preserved. Article 37, Paragraph 4 provides that the Indictment Chamber shall "consider whether the evidence establishes a prima facie case of a crime within the jurisdiction of the Court," and if so, shall "issu[e] and publish[] a warrant of arrest" for the accused. As the Commentary explains, the proposed procedure is modeled on the provisions of Rule 61 of the Rules of Procedure and Evidence of the ad hoc Tribunal for the Former Yugoslavia.
The Lawyers Committee recognizes that the result of the Indictment Chamber will be an indictment and arrest warrant based on a finding that there is a prima facie case, not a conviction based on a finding of guilt beyond a reasonable doubt. But even if it is assumed that there is a legitimate need for Indictment Chambers, the Lawyers Committee strongly objects to Article 37, Paragraph 5(a), which provides that "the record of evidence before the Indictment Chamber shall be admissible" at any subsequent trial of the accused. This provision is flatly inconsistent with the defendant's fundamental right to "examine, or have examined, the prosecution witnesses," which is recognized in Article 41(1)(e) of the Statute. The accused's right to cross-examine the witnesses against him demands that the Prosecution present the witnesses against him live and in court, and does not permit the Prosecution simply to introduce a transcript or recording of the witnesses' testimony. The defendant is entitled to an opportunity to cross-examine the witnesses who previously testified before the Indictment Chamber.
If the record of the Indictment Chamber were admissible at trial, the Prosecutor could simply introduce in evidence the record created at the Indictment Chamber and rest his case. The burden would then be entirely on the accused to try to call witnesses to undermine the Prosecution's case. This is not the kind of trial which the Statute as a whole contemplates, or which the internationally recognized rights of the accused would permit. Such a trial would be fundamentally at odds with the accused's right to confront the witness against him, and with the Prosecution's burden of proving its case at trial. This procedure would also make the proceedings in the Indictment Chamber into a de facto trial of the accused, and that would be fundamentally inconsistent with the prohibition of trials in absentia.
Allowing the record of the Indictment Chamber to be admitted in evidence at trial is particularly objectionable since it is unclear whether the accused has any right to be represented by counsel in the Indictment Chamber. Article 37(3)(b) makes clear that where a trial is permitted to go forward in the absence of the accused, the Trial Chamber "shall . . . ensure that the rights of the accused under this Statute are respected," including ensuring that "the accused is legally represented, if necessary by a lawyer appointed by the Court." But the Statute makes no such provision for proceedings before an Indictment Chamber, and thus leaves unclear whether there will be anyone to represent the accused and to cross-examine witnesses on his behalf in the Indictment Chamber.
Even if the Statute made clear that the accused did have the right to be represented by counsel in the Indictment Chamber, the Lawyers Committee would still strongly oppose the use of the record created before the Indictment Chamber against the accused at trial. Cross-examination by a lawyer representing the defendant, without the presence of the defendant to assist in his own defense, is simply no substitute for cross-examination at trial. This is especially true since the lawyer may not have had the opportunity to prepare fully for the Indictment Chamber; may not have had pre-hearing disclosure of any of the evidence to be presented in the Indictment Chamber or the material with which to cross-examine the witnesses; may not be aware of all the facts and circumstances relating to the charges against the defendant; and indeed, may not have had any contact with the accused to obtain his assistance in presenting a defense. Moreover, even if the accused's counsel did have an opportunity to cross-examine the Prosecution's witnesses in the Indictment Chamber, the members of the Trial Chamber who, under the Statute cannot be the same judges who sat in the Indictment Chamber (Art. 37, 5(b)) would have no basis for assessing the credibility of these witnesses if only a record of their testimony in the Indictment Chamber were offered in evidence.
For all of these reasons, the Lawyers Committee strongly opposes the provisions of Article 37 which authorize the admissibility of the record of proceedings before the Indictment Chamber at trial. The Lawyers Committee urges that this provision be deleted.
Article 28 specifies a procedure for the "provisional arrest" of a suspect before formal charges are brought. Paragraph 1 of Article 28 provides that the Presidency may issue a warrant for the provisional arrest of a suspect at the request of the Prosecutor at any time after an investigation has begun, upon a finding that there is "probable cause" to believe that the suspect has committed a crime within the jurisdiction of the Court, and that the suspect "may not be available to stand trial" if not provisionally arrested. Paragraph 2 further provides that the suspect is entitled to be released if an indictment has not been confirmed "within 90 days of the arrest, or such longer time as the Presidency may allow."
The provisions regarding provisional arrest are less fully developed than other provisions of the Statute, and need further work to ensure that the rights of suspects are fully protected. One obvious problem is that Article 28, Paragraph 2 permits the indefinite detention of a suspect without charges filed against him, for as long as the Presidency "may allow". The initial period of 90 days of pre-indictment detention seems to the Lawyers Committee to be very long, although such a long period may be justifiable in light of the seriousness of the charges within the Court's jurisdiction and the difficulty of investigating these charges. But there is no justification for permitting the indefinite pre-indictment detention of a suspect after the initial 90 day period. A maximum period of pre-indictment detention should be provided for in the Statute. Any additional time, over the initial 90 day period should be granted by the Presidency only in exceptional situations and only upon a showing by the Prosecutor (i) why the additional time is necessary, and (ii) that an indictment within a reasonable and finite time period is likely.
Another problem with the Statute's provisions regarding provisional arrest is that they do not adequately specify the rights of a suspect who is arrested under these provisions. Article 30 Paragraph 1(a) requires the Prosecutor to ensure that a suspect provisionally arrested is informed only of the "grounds" for arrest, rather than being informed of both the reasons for the arrest at the time of arrest and of the charges, promptly, as mandated by Article 9 (2) of the ICCPR. Article 30, Paragraph 1(c) also requires the Prosecutor to provide a statement of the accused's rights under the Statute, although the Statute is not entirely clear that this provision applies to a provisional arrest as well as to "any other case." (See Art. 30, 1(b)).
The Statute does not clearly define the rights that a suspect provisionally arrested possesses under the Statute. Article 29 states that a person provisionally arrested must be brought promptly before a judicial officer in the State where the arrest takes place, and that the judicial officer is to determine whether the arrest warrant has been duly served and whether "the rights of the accused have been respected." But the Statute also says that the local court should make these determinations "in accordance with the procedures applicable in that State." (Art. 29. 1).
Given that national procedures may not comply with international standards, the Statute should be revised to make clear that the suspect is entitled to all the internationally guaranteed procedural protections and rights granted by the Statute, in addition to the rights that he may have under local law and procedure. These must, inter alia, include the right to prompt access to a lawyer, the right to consult with counsel in confidence, the right to have counsel appointed for him if necessary, and the right to the assistance of counsel in any challenge to the lawfulness of his arrest and detention. None of these rights, provided for in Article 9 (4) of the ICCPR and in applicable non-treaty provisions are expressly guaranteed by the Statute to suspects who have been provisionally arrested.
It is unclear whether a person provisionally arrested effectively has the right promptly to challenge the lawfulness of his arrest or detention or to demand release, either unconditionally or on bail. Article 29, Paragraph 3 provides that a suspect provisionally arrested may apply to the Presidency for a determination of the lawfulness of his arrest or detention. It appears from the Commentary that it was the intention of the drafters that a person provisionally arrested would not be entitled to challenge the lawfulness of his arrest or detention in the arresting State. This raises very serious problems for the arrested suspect, whether a suspect "provisionally arrested" before indictment or an accused arrested after indictment. In either case, it is likely that there will be a period of time perhaps a very lengthy period of time between the time the person is arrested and the time that he is physically transferred to the jurisdiction of the International Court. Indeed, Article 53 explores in great detail the problems associated with the need for the International Court to request the transfer of an arrested suspect, and for the arresting State to consider under its own laws whether it can transfer the accused, as well as the competing obligations that the State may face under its extradition treaties with other countries. In view of these complications, it is likely that some prisoners may be held in the arresting State for a considerable period of time.
In these circumstances, the Statute must clarify that suspects have the right to challenge the lawfulness of their arrest and detention, and to demand release unconditionally or on bail, before the ICC while they are still in state custody. The ICC must be obliged to decide without delay on the lawfulness of arrest and detention and order release if detention if found to be unlawful, in keeping with Article 9 (4) of the ICCPR. The same applies for requests that release, either on bail or unconditionally, be granted. In addition, the Statute must more clearly address the legal protections which a suspect arrested under the auspices of the International Criminal Court "provisionally" or otherwise but still physically held under State jurisdiction, should possess.
The Statute does not sufficiently guarantee that the Prosecution will make adequate pre-trial disclosure to the accused of all the evidence and other information to which the defendant should be entitled to prepare his defense. Article 27 of the Statute provides that the Presidency of the Court "may make any further orders required for the conduct of the trial," including an order "requiring the disclosure to the defence . . . of documentary or other evidence, available to the Prosecutor, whether or not the Prosecutor intends to rely on that evidence," and "providing for the exchange of information between the Prosecutor and the defence." (Art. 27, 5(b), 5(c)). As a procedural matter, this power should be given to the Trial Chamber as soon as one is established to preside over the case. The Commentary to Article 27 states that "[i]t is intended . . . that the Chamber should assume responsibility for subsequent pre-trial procedures once it is convened," but this intention is never expressly stated in the Statute. Instead, Article 38 of the Statute provides that "[a]t the commencement of the trial," the Trial Chamber "shall . . . ensure that Article 27(5)(b) . . . ha[s] been complied with sufficiently in advance of trial to enable adequate preparation of the defence." (Art. 38, 1(b)).
It is unclear why this obligation of the Trial Chamber should wait until the commencement of the trial, and we suggest that the Statute be amended to require the Trial Chamber to assume this obligation as soon as the Chamber is convened. It is also unclear why this provision of the Statute is limited to the provisions of Article 27(5)(b) (relating to disclosure of evidence to the defense) and does not extend to Article 27(5)(c) (relating to the exchange of information between the Prosecutor and the defense). We suggest that a specific reference to Article 27(5)(c) also be included. In addition, Article 38 should be amended expressly to give the Trial Chamber the power to order the Prosecutor to make disclosures to the defense, which the Presidency has under Article 27, rather than being limited to "ensuring compliance" with the orders of the Presidency.
More important, Article 27 merely gives the Presidency the power to order disclosures to the defense, and Article 38 merely gives the Trial Chamber the responsibility to ensure that Article 27 has been complied with. Neither of these provisions requires that any disclosure be made to the defense; the extent of any required disclosure is left entirely to the discretion of the Presidency or Trial Chamber.
Indeed, to the extent that the Statute and Commentary do address the question of precisely what information or evidence the Prosecutor must disclose, the guidance that they give to the Court is contradictory. Article 27(5)(b) provides that the Presidency may order disclosure of evidence to the defendant "whether or not the Prosecutor intends to rely on that evidence." The Commentary to Article 41, on the other hand, states flatly that "there is no obligation to disclose incriminating evidence if it is not going to be used by the Prosecutor during the trial."
This contradiction should be reconciled when the Statute is revised. The Lawyers Committee believes that the Statute should be amended to expressly require the Prosecutor to make available to the defense all of the documentary or physical evidence which the Prosecutor intends to use at trial or which is material to the defense. The Lawyers Committee believes that this standard, together with the obligation to disclose exculpatory information discussed below, provides the defendant with full disclosure of all evidence pertinent to his trial while recognizing the Prosecutor's legitimate need to preserve the confidentiality of evidence which may have been gathered for use in other prosecutions.
The Statute as presently drafted explicitly requires the disclosure of information to the defense in only one respect: Article 41 provides that "[e]xculpatory evidence that becomes available to the Procuracy prior to the conclusion of the trial shall be made available to the defence." (Art 41, 2). The Lawyers Committee fully supports this fundamental principle, but believes that it should be expanded in two respects: First, the Prosecutor should also be required to disclose to the defense any information in its possession which would tend to mitigate the guilt of the defendant, in addition to evidence which tends to exculpate him of any criminal wrongdoing. Second, the Prosecutor should also be required to disclose to the defense any information in its possession which would tend to undermine the credibility of any Prosecution witness, including all prior statements of the witness.
It should be noted that Rule 68 of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia initially provided only for the disclosure of exculpatory evidence. However, in response to objections from a variety of non-governmental organizations, the Yugoslavia Tribunal amended Rule 68 in January 1995 specifically to provide that the Prosecutor must also disclose all evidence which "may affect the credibility of prosecution evidence." The same principle should be incorporated into the Statute of the International Criminal Court.
Article 41 of the Statute guarantees the accused the right to a "fair and public hearing." The Lawyers Committee endorses the Statute's recognition of this basic right. The right to a public trial is one of the accused's fundamental rights, and an important safeguard against injustice. The notion of secret proceedings leading to the conviction of the accused is anathema to any system of enlightened justice, and secret proceedings would substantially limit the degree of acceptance achieved by the Court's judgments.
Unfortunately, other provisions of the Statute significantly undermine the accused's right to a public trial. Article 38, Paragraph 4 provides that trials shall generally be held in public, "unless the Chamber determines that certain proceedings be in closed session in accordance with article 43 [relating to the protection of victims and witnesses], or for the purpose of protecting confidential or sensitive information. . . ." These exceptions are too vague and general, and leave too much discretion to the Trial Chamber to restrict the defendant's right to a public trial.
This concern is heightened by the Commentary to Article 38, which suggests that the Trial Chamber would be authorized "to hold all or part of a trial in closed session . . . ." (Comment (7) (emphasis added)). We can conceive of no circumstances which would justify closing an entire trial to the public, and the Statute should not suggest this possibility. We believe that the closure of any part of the court's proceedings should be a last resort, and can only be justified in the most extraordinary circumstances. While the need to protect witnesses from retaliation or intimidation is an important duty of the Court and Prosecutor, there are other ways to protect witnesses besides closing court proceedings. In addition, the desire to protect witnesses from embarrassment, however well-intentioned, cannot justify closure of court proceedings. The Commentary to Article 43 seems to have drawn the balance better. As that Commentary states: "While the Court is required to have due regard for the protection of victims and witnesses, this must not interfere with full respect for the right of the accused to a fair trial."
8. Conviction by Majority Vote
Article 40 of the draft Statute provides that the accused shall be presumed innocent, and that the Prosecutor must prove the guilt of the accused beyond a reasonable doubt. The Lawyers Committee fully supports these provisions, which we believe to be indispensable safeguards against unjust, erroneous or doubtful convictions. The requirement of proof beyond a reasonable doubt is essential to guarantee the integrity and credibility of the Court's judgments, and their universal acceptance.
Yet there are provisions in the draft Statute which substantially undermine the certainty that should attach to the Court's verdicts, and would raise serious questions about the willingness of the international community to accept them. Principal among these are the Statute's provisions permitting a guilty verdict to be returned by a 3-2 majority of a five-judge Trial Chamber. Article 9 of the Statute provides that a Trial Chamber will consist of five judges. (Art. 9, 5). Article 45 provides that the decisions of the Trial Chamber shall be taken by a majority vote, and specifically provides that "[a]t least three judges must concur in a decision as to conviction or acquittal." (Art 45, 2). Article 9 further permits the appointment of alternate judges to replace a member of a Trial Chamber who dies or becomes unavailable during a trial. (Art. 9, 6). According to the Commentary to Article 9, the purpose of this provision is "to avoid the possibility of a divided Chamber of four judges, leading to the possibility of a re-trial."
It is readily apparent from these provisions that the Statute contemplates that the Court may return a guilty verdict, convicting a defendant of the most serious crimes known to humankind, by a panel of judges who are divided 3-2 in favor of conviction. The Lawyers Committee believes that such a result would be unacceptable. A guilty verdict based on such a closely-divided vote would not have the degree of certainty or moral force that the Court's verdicts should have, and inevitably would not receive the universal acceptance that the Court's judgments must receive. Permitting a guilty verdict to be returned by a simple majority vote is inconsistent with the concept of proof beyond a reasonable doubt: where two judges of the Court are prepared to acquit, a guilty verdict could not have the degree of certainty implied by the reasonable doubt standard.
The Lawyers Committee urges that the Statute be amended to require a unanimous decision of the five-judge Trial Chamber before a defendant could be convicted. Only the requirement of unanimity will guarantee the level of certainty that verdicts of the Court should have and the degree of universal acceptance which they must receive. If one judge dies or becomes unavailable during the trial, we see no reason why a verdict could not also be returned by the unanimous vote of the remaining four judges, and thus see no real need for the appointment of alternates.
Article 45 provides that if a Trial Chamber which has been reduced to four judges is unable to reach a decision, it may order a new trial. (Art. 45, 3). Although the Statute does not explain how the retrial would be conducted, the statutory scheme would seem to contemplate that the retrial would be before the same four judges who heard the first trial, plus one newly appointed judge to break the deadlock. The Commentary explains that the only circumstance in which a retrial is possible under the Statute is when the Trial Chamber has been reduced to four members and they are evenly divided.
If our recommendation for the requirement of unanimity is adopted, the Statute's provisions for retrial should also be amended. We would have no objection to provisions allowing retrial if the first Trial Chamber was unable to reach a unanimous decision. The Statute should be amended to permit a retrial in these circumstances, and should also make clear that the case should be retried before a completely different Trial Chamber, and that if that panel is also unable to reach a verdict, the charges must be dismissed.
Article 48 allows the Prosecutor and convicted defendant to appeal on grounds of "procedural error, error of fact or of law, or disproportion between the crime and the sentence." As the Commentary explains, "the Commission believes that the right to appeal should exist equally for the Prosecutor and the convicted person." Thus, among other things, the Statute permits the Prosecutor to appeal from the acquittal of a defendant on the ground that the Trial Chamber made an "error of fact."
We view this provision as unacceptable. Even assuming that it is appropriate to permit the Prosecutor to appeal an issue of law which led to an acquittal, we see no justification for permitting the Prosecutor to appeal on the ground that the Trial Chamber got the facts wrong. Indeed, it is difficult to see how an Appeals Chamber which did not see the trial or hear the witnesses' testimony could come to the conclusion that the lower court had reached a mistaken view of the facts. This is particularly true if our recommendation that the Statute be amended to require a unanimous verdict is adopted.
In our view, permitting the Prosecutor to appeal on issues of fact undermines the defendant's right against being tried twice for the same offense, recognized in Article 42 of the Statute, and tends to undermine the Prosecution's burden to prove its case beyond a reasonable doubt. This provision should be deleted.
*:
This paper was prepared for the Lawyers Committee by Ira Feinberg of the New York Bar. Mr. Feinberg is a graduate of Harvard Law School, and a former editor of the Harvard Law Review. He was formerly law clerk to Justice Thurgood Marshall of the United States Supreme Court and a partner in the law firm of O'Melveny & Myers. For the past seven years, he has served as an Assistant United States Attorney in the Criminal Division of the United States Attorney's Office for the Southern District of New York. The views expressed in this paper do not necessarily reflect the views of the United States Department of Justice.
Copies of this report are available from:
Lawyers Committee for Human Rights
330 Seventh Avenue, 10th Floor
New York, New York 10001 USA
Tel: (212) 629-6170
Fax: (212) 967-0916
E-mail: comm@lchr.org
100 Maryland Avenue, NE
Suite 502
Washington, D.C. 20002
Tel: (202) 547-5692
Fax: (202) 543-5999
E-mail: wdc@lchr.org
Back.
**: Since 1978 the Lawyers Committee for Human Rights has worked to promote international human rights and refugee law and legal procedures in the United States and abroad. The Chairman of the Lawyers Committee is Norman Dorsen; Michael H. Posner is its Executive Director. Stefanie Grant is Director of Program and Policy. George Black is Research and Editorial Director. Jelena Pejic is Coordinator of the Europe Program and directs the Committee's work on the International Criminal Court. Back.
