The first decision of the ICC Pre-Trial chamber: International Criminal Procedure under construction

Journal of International Criminal Justice

Volumn 4, Issue 1, 2006, Pages 188-195

  Miraglia, Michela ^a  

^a UNIVERSITY OF GENOA   (Italy)

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EID: 33645000050     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqi093     Document Type: Article

References (26)

1. On 23 June 2004, the Presidency of the ICC decided to constitute three pre-trial chambers (Decision Constituting Pre-Trial Chambers (ICC-Pres-01/04), Presidency, 6 June 2004). The Presidency assigned the situation in DRC to Pre-Trial Chamber I, composed by Judge Claude Jorda (President), Judge Akua Kuenyehia and Judge Sylvia Steiner (Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I (ICC-01/04), Presidency, 5 July 2004). All ICC official decisions are available online at http://www.icc-cpi.int/cases.html (visited 24 November 2005).
2. Decision to Convene a Status Conference, Situation in the Democratic Republic of Congo (ICC-01/04), Pre-Trial Chamber I, 17 February 2005.
3. After having received several communications from individuals and non-governmental organizations about crimes committed within the jurisdiction of the ICC on the territory of the Democratic Republic of Congo (DRC), the Prosecutor of the Court, in September 2003, informed the Assembly of the States Parties of his intention to seek authorization from a pre-trial chamber to start an investigation proprio motu. In March 2004, the President of the DRC formally referred the situation in his own country to the Prosecutor, who announced in June his decision to open the first investigation of the ICC on crimes committed anywhere on the territory of the DRC since 1 July 2002.
4. See infra note 9.
5. Decision to Convene a Status Conference, supra note 2, at 2.
6. See O. Fourmy, 'Powers of the Pre-Trial Chamber', in A. Cassese, P. Gaeta and J. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 1207-1230, at 1208.
7. In general, for role and powers of the Pre-Trial Chamber, see M. Bergsmo and J. Pejić, 'Article 15', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 359-372
8. M. Bergsmo and P. Krueger, 'Article 53', ibid., 701-714
9. F. Guariglia, 'Article 56', ibid., 735-741
10. F. Guariglia and K. Harris, 'Article 57', ibid., 743-752
11. A. Schlunk, 'Article 58', ibid., 753-763.
12. See P. Guariglia, 'International Criminal Law Procedure (Investigation and Prosecution)', in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law Internationa1, 1999) 227-238, at 238.
13. F. Guariglia, supra note 6, at 738.
14. Article 57(3)(c) ICCSt. provides as follows: '3. In addition to its other functions under this Statute, the Pre-Trial Chamber may:... (c) Where 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.'
15. Rule 121 ICC RPE provides in part as follows: '2. In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure: (a) ... (b) The Pre-Trial Chamber shall hold status conferences to censure that disclosure takes place under satisfactory conditions. For each case, a judge of the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her own motion, or at the request of the Prosecutor or the Person.'
16. Rule 132 stipulates that: '1. Promptly after it is constituted, the Trial Chamber shall hold a status conference in order to set the date of the trial. ...2. In order to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber may confer the parties by holding status conferences as necessary.'
17. Prosecutor's Position on Pre-trial Chamber I's 17 February 2005 Decision to Convene a Status Conference, Situation in the Democratic Republic of Congo (ICC-01/04), Prosecutor, 8 March 2005. Our comments relate to the 'redacted version' of the position, available online at www.icc-cpi.int/ libraryorgans/otp/ICC0104Anx_2005March08-e.pdf (visited 24 November 2005).
18. Ibid., §13. The Prosecutor touches upon three other points in the Position Paper: First, he complains because the decision has been taken without consulting him, the relevant and only party at this stage of the proceedings; secondly, he argues that the decision to hold the status conference broadens the scope of the interaction between the Pre-Trial Chamber and the Prosecution pictured in the Statute and the Rules: This can affect the 'compromise reached in Rome between different legal traditions' (ibid., §3).
19. Finally, he claims that this kind of interpretation can reduce the impartiality of the Pre-Trial Chamber, influencing 'any subsequent trial proceedings against the accused' (ibid., §21).
20. O. Fourmy, supra note 6, at 1228, appears to state that even the need for an ex parte hearing has to be discussed during an inter partes conference.
21. Pre-Trial Chamber I refers to Regulation 30 of the Regulations of the Court. This Regulation does not state in which cases a status conference can be held, but only the procedure that has to be followed in holding such a conference. Regulation 30 provides that: 'A Chamber may hold a status conference by way of hearings, including by way of audio- or video- link technology or by way of written submissions. The Chamber may require use of standard forms at a status conference as appropriate. Such standard forms shall be approved n accordance with regulation 23, sub-regulation 2.'
22. The drafters chose not to use the word 'suspect' in the ICC Statute and the ICC RPE. Article 55 generally refers to 'persons during investigation'; §2 lists specific rights for persons about whom 'there are grounds to believe' they have committed a 'crime within the jurisdiction of the Court'. See S. Zappalà, 'Rights of Person During an Investigation', in A. Cassese, P. Gaeta and J. Jones (eds), supra note 6, 1181-1203, at 1196.
23. The request was related to the carrying out of a forensic examination.
24. Decision to Hold Consultation Under Rule 114, Situation in the Democratic Republic of Congo (ICC-01/04). Pre-Trial Chamber I, 21 April 2005, at 4.
25. Decision on the Prosecutor's Request for Measures Under Article 56, Situation in the Democratic Republic of Congo (ICC-01/04), Pre-trial Chamber I, 26 April 2005.
26. The measures listed in Art. 56(2) ICCSt. are not exhaustive.