Rights of the Accused

In accordance with Articles 9 and 14 of the International Covenant on Civil and Political Rights, both the Rome Statute and the ICC's Rules of Procedure and Evidence include measures that protect the rights of the accused at all times. This ensures that individuals accused of the world's most serious offences receive a fair trial another cornerstone of international law.


Investigations, Warrants and Arrests

Article 55 of the Rome Statue ensures that the rights of individuals are protected throughout the ICC Prosecutor's investigations.

Article 55
Rights of persons during an investigation

  1. In respect of an investigation under this Statute, a person:
    1. Shall not be compelled to incriminate himself or herself or to confess guilt;
    2. Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
    3. Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
    4. Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
  2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
    1. To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
    2. To remain silent, without such silence being a consideration in the determination of guilt or innocence;
    3. To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
    4. To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Furthermore, the Pre-Trial Chamber may make specific orders during an investigation to protect evidence for the defence:

Article 56
Role of the Pre-Trial Chamber in relation to a unique investigative opportunity

  1. 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 shall so inform the Pre-Trial Chamber.
  2. In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence …

In fact, the rights of suspects and the accused are protected during every stage of the ICC process. The ICC Prosecutor must obtain the approval of a panel of three elected judges for an arrest warrant. The panel's approval of the ICC Prosecutor's request for an arrest warrant is only granted upon satisfaction of several very specific criteria:

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear

  1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:
  1. There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and
  2. The arrest of the person appears necessary:
    1. To ensure the person's appearance at trial,
    2. To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or
    3. Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

Once the ICC issues an arrest warrant, the Rome Statute requires that the accused have the opportunity to appear before the courts of the country in which she or he is arrested

Article 59
Arrest proceedings in the custodial State

  1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.
  2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
    1. The warrant applies to that person;
    2. The person has been arrested in accordance with the proper process; and
    3. The person's rights have been respected.
  3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
  4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).
  5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.
  6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.
  7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.

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Pre-Trial Procedure

The Rome Statute specifies that accused persons must be informed of the charges they face as soon as they arrive at the ICC. The accused must also have the opportunity to apply for release pending trial:

Article 60
Initial proceedings before the Court

  1. Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial.
  2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.
  3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require.
  4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.
  5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released.

Once the accused is in ICC custody, the ICC must hear and confirm the charges within a reasonable amount of time:

Article 61
Confirmation of the charges before trial

  1. Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.
  2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has:
    1. Waived his or her right to be present; or
    2. Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice.

In addition, the Rome Statute gives the accused access to all evidence the Prosecutor intends to rely on at the hearing:

Article 61
Confirmation of the charges before trial

  1. Within a reasonable time before the hearing, the person shall:
    1. Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and
    2. Be informed of the evidence on which the Prosecutor intends to rely at the hearing.

The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.

The Rome Statute requires the Prosecutor to demonstrate the validity of each charge laid against the accused and gives the accused the right to object to any of the Prosecutor's charges:

Article 61
Confirmation of the charges before trial

  1. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.
  2. At the hearing, the person may:
    1. Object to the charges;
    2. Challenge the evidence presented by the Prosecutor; and
    3. Present evidence.

The Rome Statute grants the Pre-Trial Chamber the power to dismiss charges if the ICC Prosecutor fails to demonstrate their validity:

Article 61
Confirmation of the charges before trial

  1. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:
    1. Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed;
    2. Decline to confirm those charges in relation to which it has determined that there is insufficient evidence;
    3. Adjourn the hearing and request the Prosecutor to consider:
      1. Providing further evidence or conducting further investigation with respect to a particular charge; or
      2. Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.
  2. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence.
  3. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges.
  4. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor.
  5. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.

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Trial Rights

The Rome Statute specifies that the accused has the right to be present at his or her ICC trial, which, except in special circumstances, must be conducted in public:

Article 63
Trial in the presence of the accused

  1. The accused shall be present during the trial.

Article 64
Functions and powers of the Trial Chamber

  1. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence.

The Rome Statute ensures that the accused is presumed innocent until proven guilty beyond a reasonable doubt:

Article 66
Presumption of innocence

  1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
  2. The onus is on the Prosecutor to prove the guilt of the accused.
  3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

The accused before the ICC is guaranteed all traditional legal rights during trial, including the right to be tried without undue delay, the right to remain silent and the right to counsel:

Article 67
Rights of the accused

  1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
    1. To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
    2. To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
    3. To be tried without undue delay;
    4. Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
    5. To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
    6. To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
    7. Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
    8. To make an unsworn oral or written statement in his or her defence; and
    9. Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
  2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

Finally, the Rome Statute entitles the accused to reasoned judgments, which are to be provided in writing and made public:

Article 74
Requirements of the decision

  1. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.

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The Right to Appeal

In addition to all the measures that protect the full rights of the accused during investigations and while standing trial, the Rome Statute also guarantees the accused the right to appeal the Court's decision in the event he or she is convicted:

Article 81(1) (b)
Appeal against decision of acquittal or conviction or against sentence

The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:

  1. Procedural error,
  2. Error of fact,
  3. Error of law, or
  4. Any other ground that affects the fairness or reliability of the proceedings or decision.

An accused who is convicted also has the right to appeal the sentence:

Article 81(2) (a)
Appeal against decision of acquittal or conviction or against sentence

A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;

The accused may also appeal other ICC rulings made during the trial process:

Article 82
Appeal against other decisions

  1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence:
    1. A decision with respect to jurisdiction or admissibility;
    2. A decision granting or denying release of the person being investigated or prosecuted;
    3. A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3;
    4. A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

The Rome Statute gives the Trial Chamber the power to release the accused during the appeal process:

Article 81 (3) (a)
Appeal against decision of acquittal or conviction or against sentence

Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;

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Remedies

The Rome Statute gives wrongfully arrested or convicted individuals the right to receive fair compensation:

Article 85
Compensation to an arrested or convicted person

  1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
  2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her.
  3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.