Int’l Criminal Law
and inquisitorial processes and it is interesting to compare these reforms to the procedure of sub- sequent courts.
The Procedure at the International Criminal Court
The International Criminal Court (ICC) came into being with the signing of the Rome Statute in 1998, following years of extensive debate and planning. Rather than being influenced solely by Nuremberg, the drafters at Rome had the work of the ICTY to look to as a model. The Rome Stat- ute resulted in a unique compromise between adversarial and inquisitorial systems.
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From the beginning the ICC RPE’s ascribed the individual parties roles more familiar to an inquisi- torial system than an adversarial one. The Office of the Prosecutor (OTP) is responsible for inves- tigation, and has a duty to investigate both incul- patory and exculpatory evidence. The way the investigatory power of the OTP may be triggered is a unique characteristic of the ICC, and includes three possible ways under Article 13 of the Rome Statute. First, a State Party may refer a situation to the Court, second, the Security Council can re- fer a matter to the OTP for investigation, and third, the OTP can conduct an investigation proprio motu. In determining when to exercise its inves- tigatory powers, the OTP must consider whether there is reasonable basis to believe a crime within the jurisdiction of the Court has been or is being committed, whether the case is admissible, and whether there are any other substantial reasons to consider that an investigation would not be in the interests of justice. If the Prosecutor deter- mines that an investigation should proceed, then it must submit to the Pre-Trial Chamber (PTC) for authorization for investigation. This is another unique feature of ICC procedure, as it embodies neither adversarial traits (no judicial authorization is required in an adversarial system) nor inquisito- rial; however, there is some familiarity with the investigating judge in an inquisitorial system as the authorization process gives the judges great
power to influence which cases move to the full investigation stage. Another striking feature of the ICC Pre-Trial Chamber is its ability to review a prosecutor’s decision not to proceed with an investigation under Article 53(3).
Prior to trial, the Pre-Trial Chamber has the power to schedule and conduct status conferences. The goal of these conferences is to allow the Pre-Trial judge to assist the parties with the progression of the case towards trial, and to supervise the actions of the OTP. The Pre-Trial Chamber must also schedule and hold a confirmation of charges hearing, during which the PTC must determine whether there is “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”. In mak- ing its determination, the PTC can either confirm charges and commit the person to a Trial Cham- ber, request further evidence or suggest the OTP amend the charges, or decline the charges due to insufficient evidence. Again, this is a unique feature of ICC procedure, and one that does not entirely mirror either the adversarial or inquisito- rial, but remains closer to the latter.
Once the charges are confirmed, the case moves to a Trial Chamber. At the trial stage, the presen- tation of evidence generally follows the adversar- ial model – full Prosecution case, followed by full Defense case.
Like the ICTY, the ICC also employs a device similar to a dossier. The ICC Registrar is required to make a complete and accurate record of the proceedings but, once more, this record is not as comprehensive as a true inquisitorial dossier. Again similar to the ICTY, the ICC does not have technical rules of evidence. Rather Article 69(3) of the Rome Statute provides that the parties “may submit any evidence relevant to the case that is of probative value and not prejudicial to a fair eval- uation of the testimony of a witness”. As the ICC employs professional judges it is assumed they are competent to determine admissibility.
ILSA Quarterly » volume 22 » issue 3 » February 2014
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