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Rule 131

[238] 1. The Registrar shall maintain the record of the proceedings transmitted by the Pre-Trial Chamber, pursuant to rule 121, sub-rule 10.

2. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the defence, the representatives of States when they participate in the proceedings, and the victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.
Rule 131 is part of the "package" of provisions that etablishes the disclosure regime of the Court, other provisions include Articles 61(3), 64((3)(c) and (6)(d), 67(2) of the Rome Statute, Rules 76-84 and 121(1)). In essence, Rules 131 and 121(10) provide that the Registrar shall creat and maintain "the record of the proceedings" which may be consulted by the relevant parties.
   In Prosecutor v. LubangaDecision on victim's participation, 18 January 2008, para. 86, TC I considered "that Rule 131(2) of the Rules provides participating victims the right to consult the record of the proceedings, including the index, subject to any restrictions concerning confidentiality and the protection of national security information. Due to the fact that confidential filings within the record often contain sensitive information related to national security, protection of witnesses and victims, and the prosecution's investigations, the presumption will be that the legal representatives of victims shall have access only to public filings.”

Crossreference:
Articles 61(3), 64((3)(c) and (6)(d), 67(2)
Rules 76-84 and 121(1).

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 511.
2. Helen Brady, "Disclosure of Evidence" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 404, 405, 408, 426.
3. Helen Brady, "Setting the Record Straight: A Short Note on Disclosure and 'the Record of the Proceedings' ", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 267.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 132

[239] 1. Promptly after it is constituted, the Trial Chamber shall hold a status conference in order to set the date of the trial. The Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may postpone the date of the trial. The Trial Chamber shall notify the trial date to all those participating in the proceedings. The Trial Chamber shall ensure that this date and any postponements are made public.

2. In order to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber may confer with the parties by holding status conferences as necessary.
Sub-rule 1 provides that promptly after it is constituted, the Trial Chamber shall hold a status conference in order to set the date of the trial. The purpose of holding this status Conference is to ensure a swift transition from the close of the -pre-trial phase and the start of the trial.
   There is no definition of "promptly" and no time limit is in the rule. setting a date of the trial may depend on several factors, including whether the accused intend to make admission of guilt, the state of readiness of the parties, estimates of trial length (which in turn depends on number of witnesses and the complexity of the issues), availability of courtrooms and judges (Lewis, 2004, pp. 225-226).
   In the first Status Conference, a wide range of issues may be discussed as illustrated in the Ntaganda case:

a) Timing, volume and modalities of disclosure of evidence pursuant to Rule 76 of ihe Rules;
b) Whether the Prosecution anticipates issues concerning the protection of witnesses and other persons (including the need for redactions), the disclosure of identities of witnesses, as well as referrals to the Court's witness protection program;
c) Material already disclosed and intended to be disclosed by the Prosecution pursuant to Article 67(2) of the Statute and Rule 77 of the Rules;
d) Whether there are any outstanding issues relating to documents or information which the Prosecution obtained on the condition of confidentiality pursuant to Article 54(3)(e) of the Statute;
e) Whether the parties intend to call expert witnesses pursuant to Regulation 44 and, if so, whether they intend to give joint or separate instructions to them;
f) Evidence to be introduced under Rule 69 as regards agreed facts;
g) Update on victims' applications and the procedure for allowing victims to participate in the trial proceedings;
h) Languages to be used in the proceedings, in particular, the languages spoken by the witnesses the parties intend to call and victims the legal representatives may seek authorisation to call; and
i) Commencement date of the trial (Prosecutor v. Ntaganda, ICC T. Ch. VI, Order Scheduling a Status Conference and Setting a Provisional Agenda, ICC-01/04-02/06-339, 21 July 2014, para. 5).

To ensure flexibility, the Trial Chamber may, on its own motion, or at the request of the Prosecutor or the defence, may postpone the date of the trial.

Crossreference:
Article 64(3)(a)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 363, 365, 385, 424.
2. Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1598-1599.
3. Peter Lewis, "Trial Procedure" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 542.
4. Peter Lewis, "Confirmation Hearing to Trial", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 225-226.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 132 bis

[240] 1. In exercising its authority under article 64, paragraph 3 (a), a Trial Chamber may designate one or more of its members for the purposes of ensuring the preparation of the trial.

2. The judge shall take all necessary preparatory measures in order to facilitate the fair and expeditious conduct of the trial proceedings, in consultation with the Trial Chamber.

3. The judge may at any time, proprio motu or, if appropriate, at the request of a party, refer specific issues to the Trial Chamber for its decision. A majority of the Trial Chamber may also decide proprio motu or, if appropriate, at the request of a party, to deal with issues that could otherwise be dealt with by the judge.

4. In order to fulfil his or her responsibilities for the preparation of the trial, the judge may hold status conferences and render orders and decisions. The judge may also establish a work plan indicating the obligations the parties are required to meet pursuant to this rule and the dates by which these obligations must be fulfilled.

5. The functions of the judge may be performed in relation to preparatory issues, whether or not they arise before or after the commencement of the trial. These issues may include:
(a) Ensuring proper disclosure between the parties;
(b) Ordering protective measures where necessary;
(c) Dealing with applications by victims for participation in the trial, as referred
to in article 68, paragraph 3;
(d) Conferring with the parties regarding issues referred to in regulation 54
of the Regulations of the Court, decisions thereon being taken by the Trial
Chamber;
(e) Scheduling matters, with the exception of setting the date of the trial, as
referred to in rule 132, sub-rule 1;
(f) Dealing with the conditions of detention and related matters; and
(g) Dealing with any other preparatory matters that must be resolved which do
not otherwise fall within the exclusive competence of the Trial Chamber.

6. The judge shall not render decisions which significantly affect the rights of the accused or which touch upon the central legal and factual issues in the case, nor shall he or she, subject to sub-rule 5, make decisions that affect the substantive rights of victims.
Originally, the use of single judge was only foreseen for the Pre-Trial Chamber and not for the Trial Chamber (Articles 39(2)(b)(iii) and 57(2)). With resolution ICC-ASP/11/Res.2, Rule 132 bis was introduced that allows the Trial Chamber to designate a single judge to prepare the trial (Resolution ICC-ASP/11/Res.2, ASP, Eighth plenary meeting, ICC-ASP/11/20, 21 November 2012). This may appea to be at odds with Article 39(2)(b)(iii) which provides that "[t]he functions of the Trial Chamber shall be carried out by three judges of the Trial Division". Instead, Rule 132 bis is based on Article 64(3)(a) which conferes broiad Powers to the Trial Chamber to "adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings" (Bitti, 2016, p. 1599).
   Ambos notes that there is no explicit ICC provision which allows a pre-appeal judge as known from the ad hoc tribunals (ICTY RPE Rule 127(B), ICTR RPE Rule 198 bis, MICT RPE Rule 135). However, such a judge may be based on an analogous application of ICC Rule 132 bis via rule 149 (Ambos, 2016, p. 551).

Crossreference:
Article 64(3)(a)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 363, 551.
2. Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1598-1599.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 133

[241] Challenges to the jurisdiction of the Court or the admissibility of the case at the commencement of the trial, or subsequently with the leave of the Court, shall be dealt with by the Presiding Judge and the Trial Chamber in accordance with rule 58.
Altghough challenges to the jurisdiction of the Court or the admissibility of the case are expected early in the proceedings. Article 19(4) provides that such challenges shall take place prior to or at the commencement of the trial. However, the same provision allows such challenges during the trial in exceptional circumstances and with leave of the Court. Rule 133 establishes a special regime for such challenges while rule 134 sets out the regime for other motions.

Crossreference:
Article 19(4)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 252, 324, 363.
2. Christopher K. Hall, Daniel D. Ntanda, Manuel J. Ventura, "Article 19", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 877-880.
3. Peter Lewis, "Trial Procedure" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 542-543.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 134

[242] 1. Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings. Any request from the Prosecutor or the defence shall be in writing and, unless the request is for an ex parte procedure, served on the other party. For all requests other than those submitted for an ex parte procedure, the other party shall have the opportunity to file a response.

2. At the commencement of the trial, the Trial Chamber shall ask the Prosecutor and the defence whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings. Such objections or observations may not be raised or made again on a subsequent occasion in the trial proceedings, without leave of the Trial Chamber in this proceeding.

3. After the commencement of the trial, the Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may rule on issues that arise during the course of the trial.
Rule 134 was adopted to meet concerns of many delegations that the proceedings at the ad hoc tribunals were being delayged by endless procedural challenges (Lewis, 2001, p. 543).
   Sub-rule 1 encourages the parties to make their requests and the Trial Chamber to rule on procedural issues prior to the commencement of trial. 
   Sub-rule 2 provides that at the commencement of the trial, the Trial Chamber shall ask the Prosecutor and the defence whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings. The same sub-rule 2 only allows later challenges with the leave of the Court.

Crossreference:
Article 64((3)(a)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 99, 363, 506.
2. Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1599.
3. Peter Lewis, "Trial Procedure" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 543-544.
4. Peter Lewis, "Confirmation Hearing to Trial", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 228.

Author:
Mark Klamberg

Updated:
30 August 2017 

Rule 134 bis

[243] 1. An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present through the use of video technology during part or parts of his or her trial.
2. The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question.
Article 63(1) of the Rome Statute provides that the accused shall be present during the trial which would suggest that in absentia trails are not allowed. The introduction of Rules 134 bis, 134 ter and 134 quater provides for exceptions from this requirement. This amendment of the Rules of Procedure and Evidence has been criticized as political interference (Ambos, 2016 p. 368).
    The requirement in article 63(1) was initially uncontroverisal. The absolute requirement on presence came under question in the Kenya cases. With the voluntary apperance of the President Kenyatta the judges attempted to reconcile the interests of Heads of state or other high-level officials to continue performning their duties on the one hand with the presence requirement to attend the trial on the other, see Ruto and Sang, ICC T. Ch. V(a) Decision on Mr Ruto's Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013; Kenyatta, ICC T. Ch. V(b), Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, ICC-01/09-02/11-830, 18 October 2013, Ruto and Sang, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18 June 2013 entitled “Decision on Mr Ruto's Request for Excusal from Continuous Presence at Trial”, ICC-01/09-01/11-1066, 25 October 2013. The issue became even more acute with the terrorist attack 21 September 2013 against Westgate Mall in Nairobi which happened during the appeal (Schabas, Caruana, 2016, p. 1568).
   The Assembly of State Parties responded to the development in the Kenya cases and political pressure by introducing Rules 134 bis, 134 ter and 134 quater, resolution ICC-ASP/12/Res.7, ASP, Twelfth session, ICC-ASP/12/20, 27 November 2013. The new rules provide for a three-stages system softening the presence requirement: 1) virtual instead of physical presence (Rules 134 bis); 2) partial absence (rule 134 ter); and 3) full absence of the defendant from trial to be represented by counsel only (Rule 134 quater), see Ambos, pp. 162-165.

Crossreference:
Article 64((3)(a)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 59, 162, 164-165, 368.
2. William A. Schabas and Veronique Caruana, "Article 63", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1567-1570.

Author:

Mark Klamberg

Updated:
30 August 2017

Rule 134 ter

[244] 1. An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his or her trial.
2. The Trial Chamber shall only grant the request if it is satisfied that:
(a) exceptional circumstances exist to justify such an absence;
(b) alternative measures, including changes to the trial schedule or a short adjournment of the trial, would be inadequate;
(c) the accused has explicitly waived his or her right to be present at the trial; and
(d) the rights of the accused will be fully ensured in his or her absence.
3. The Trial Chamber shall rule on the request on a case-by-case basis, with due regard to the subject matter of the specific hearings in question. Any absence must be limited to what is strictly necessary and must not become the rule.

Rule 134 ter allows for partial absence of the accused from trial. The background of the rule is deThe Trial Chamber allowed the defendant in scribed in the comment on rule 134 bis. Ruto and Sang to be absent during part of the proceedings. The Appeals Chamber considered that the Trial Chamber did not properly exercise its discretion in the case: "the Trial Chamber in the present case interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary Power" (Ruto and Sang, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18 June 2013 entitled “Decision on Mr Ruto's Request for Excusal from Continuous Presence at Trial”, ICC-01/09-01/11-1066, 25 October 2013, paras. 61 and 63). The Appeals Chamber stated that excusal was possible in exceptional circumstances:

(i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of altemative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusai has been requested  (para. 62).

The ratio decidendi of the Appeals Judgment has been incorporated into Rule 134 ter and Rule 134 quater (Ambos, 2016, p. 163).

Crossreference:
Article 64((3)(a)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 59, 163, 368-369.
2. William A. Schabas and Veronique Caruana, "Article 63", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1567-1570.

Author:

Mark Klamberg

Updated:
30 August 2017

Rule 134 quater

[245] 1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.
2. The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.
Rule 134 quater allows for full absence of the defendant from the trial to be represented by counsel only. The background of the rule is described in the comment on rule 134 bis and the comment on rule 134 quater.
   Excusal under Rule 134 quater is only possible for accussed who need "to fulfill extraordinary public duties at the highest national level", provided that person is represented by counsel and waives the right to be present. The request is decided upon by the Trial Chamber.

Crossreference:
Article 64((3)(a)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 59, 163-164, 368-369.
2. William A. Schabas and Veronique Caruana, "Article 63", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1567-1570.

Author:

Mark Klamberg

Updated:
30 August 2017 

Rule 135

[246] 1. The Trial Chamber may, for the purpose of discharging its obligations under article 64, paragraph 8 (a), or for any other reasons, or at the request of a party, order a medical, psychiatric or psychological examination of the accused, under the conditions set forth in rule 113.

2. The Trial Chamber shall place its reasons for any such order on the record.

3. The Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Trial Chamber at the request of a party.

4. Where the Trial Chamber is satisfied that the accused is unfit to stand trial, it shall order that the trial be adjourned. The Trial Chamber may, on its own motion or at the request of the prosecution or the defence, review the case of the accused. In any event, the case shall be reviewed every 120 days unless there are reasons to do otherwise. If necessary, the Trial Chamber may order further examinations of the accused. When the Trial Chamber is satisfied that the accused has become fit to stand trial, it shall proceed in accordance with rule 132.
Rule 135 provides that the Trial Chamber may order a medical, psychiatric or psychological examination of the accused. The reference in the rule to article 64(8)(a) concerns the obligation of the Chamber to "satisfy itself that the accused understands the nature of the charges". The "other reasons" may include cases where the defence argues that the defendant suffers from a mental disease or defect that would exclude criminal responsibility pursuant to article 31((1)(a).
   Sub-rule 1 contains a cross-reference to rule 113 which allows for medical, psychological or psychiatric examination during the pre-trial stage. Sub-rule 2 ensures that the Trial Chamber places its reasons for any such order on the record. Sub-rule 3 requires that onlyu approved experts will be used. if the Trial Chamber finds that the accused is unfit to stand trial, it shall order that the trial be adjourned pursuant to sub-rule 4. If the the accussed recovers the Trial Chamber shall proceed with setting a trial date pursuant to rule 132.

Crossreference:
Article 64(8)(a)
Rule 113

Doctrine:
Peter Lewis, "Trial Procedure", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 544-545.

Author:

Mark Klamberg

Updated:
30 August 2017

Rule 136

[247] 1. Persons accused jointly shall be tried together unless the Trial Chamber, on its own motion or at the request of the Prosecutor or the defence, orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interests of justice or because a person jointly accused has made an admission of guilt and can be proceeded against in accordance with article 65, paragraph 2.

2. In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.
Rule 136 supplements article 64(5) which provides that "the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused". 
   During the negotiations several delegates were concerned that separate trials would be traumatic for witnessess and for that the reason the threshold for separate trial was set to "serious" prejudice in sub-rule 1 (Lewis, 2001, p. 546). Thus, there is a presumtion for a joint trial.
   Sub-rule 2 provides that in joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.
   During the negotiations of rule there was a debate whether the rules should regulate how to deal with an accused facing multiple charges and who may seek a separate trial for each charge. No agreement was made and it was left unresolved.
   The Pre-Trial Chamber decided to join the cases against Katanga and Ngudjolo, Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI, 10 March 2008. The Pre-Trial Chamber considered that "although article 64(5) of the Statute and rule 136 of the Rules are included in Chapter VI of the Statute and of the Rules which deals with the 'Trial Procedure', the Chamber considers that the contextual interpretation of such provisions, in light of the above-mentioned provisions relating to the Pre-Trial proceedings of a case before the Pre-Trial Chamber included in Chapter V of the Statute and the Rules, does not preclude joint proceedings at the Pre-Trial stage, but rather supports the general rule that there is a presumption of joint proceedings for persons prosecuted jointly." (pp. 8-9). See also Katanga and NgudjoloDecision on Application for Leave to Appeal by the Defence of Mathieu Ngudjolo Chui against the Decision on Joinder, where the PTC granted leave to appeal. The Appeals Chamber upheld the decision of of the Pre-Trial Chamber, Judgment on the Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre- Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui Cases, 9 June 2008. The charges were later severed, Katanga and Ngudjolo, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012.

Crossreference:
Article 64(5)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 369-370, 443.
2. Peter Lewis, "Trial Procedure", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 545-546. 
3. Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1605-1607.

Author:
Mark Klamberg

Updated:
30 August 2017  

Rule 137

[248] 1. In accordance with article 64, paragraph 10, the Registrar shall take measures to make, and preserve, a full and accurate record of all proceedings, including transcripts, audio- and video-recordings and other means of capturing sound or image.

2. A Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist.

3. The Trial Chamber may authorize persons other than the Registrar to take photographs, audio- and video-recordings and other means of capturing the sound or image of the trial.
Rule 137 supplements article 64(10) which provides that the Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar. The obligation to make and preserve a record of the trial is particularly important in case of an appeal or in case of a revision under article 84.
   Sub-rule 1 provides that the the Registrar shall take measures to make, and preserve, a full and accurate record of all proceedings, including transcripts, audio- and video-recordings and other means of capturing sound or image. The responsibility for the Registrar to keep records is also addressed in rules 15 and 121(10).
   Sub-rule 2 allows the Trial Chamber to order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist.
   For the purpose of promoting public access to the proceedings, the Trial Chamber may authorize persons other than the Registrar to take photographs, audio- and video-recordings and other means of capturing the sound or image of the trial. 

Crossreference:
Article 64(10)
Rule 15 and 121(10)

Doctrine:
1. Gérard Dive, "The Registry", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, p. 267. 
2. Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1620.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 138

[249] The Registrar shall retain and preserve, as necessary, all the evidence and other materials offered during the hearing, subject to any order of the Trial Chamber.
The obligation under rule 138 to retain and preserve evidence and other other materials offered during the hearing is particularly important in case of an appeal or in case of a revision under article 84. The rule is inspired by the equivalent provisions in the ICTY and ICTR Rules, rule 81(c) in the ICTY and ICTR rules, respectively

Crossreference:
Article 64(10)
Rule 15, 121(10) and 137

Doctrine:
1. John R.W.D. Jones and Steven Powles, International Criminal Practice, Third Edition, Oxford University Press, Oxford, 2003, p. 708.

2. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 369-370, 443.


Author:
Mark Klamberg

Updated:
30 August 2017  

Rule 139

[250] General Remarks
The Rule builds on Article 65 of the ICC Statute and elaborates on the procedure that the Trial Chamber must follow when an accused tenders an admission of guilt.

Author:
Jenia Iontcheva Turner

Rule 139(1)

[251] 1. After having proceeded in accordance with article 65, paragraph 1, the Trial Chamber, in order to decide whether to proceed in accordance with article 65, paragraph 4, may invite the views of the Prosecutor and the defence.
After determining the validity of the admission of guilt under Article 65(1)—i.e., confirming that it is voluntary, informed, and supported by the facts—the Trial Chamber must decide whether to convict the accused and proceed directly to sentencing or to follow Article 65(4). Under Article 65(4), in the interests of justice, and in particular, the interests of victims, the Chamber may order a more complete presentation of evidence or it may entirely reject the admission of guilt and refer the case to ordinary trial proceedings. Rule 139(1) suggests that in deciding whether the interests of justice call for a more complete presentation of facts or referral to ordinary trial, the Chamber “may invite the views of the Prosecutor and the defence.”
   While the Rule mentions only the prosecution and defense as parties to be consulted, one may expect that Chambers would solicit the views of victims as well (Schabas 780). Because decisions under Article 65(4) are to be made in the interests of justice, and in particular the interests of victims, it would make sense for Chambers to consult victims. This would also be consistent with Article 68(3), which states that the Trial Chamber may permit victims to present their concerns at appropriate proceedings, as long as this is “not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” More concretely, Rule 93 provides that a Trial Chamber may seek the views of victims or their legal representatives in relation to issues referred to in Rule 139, i.e., proceedings on admission of guilt. (Turner & Weigend 1391). Victims’ views on reparations and on sentencing may be especially relevant to the Chamber’s decision whether to proceed under Article 65(4).

Author:
Jenia Iontcheva Turner

Rule 139(2)

[252] 2. The Trial Chamber shall then make its decision on the admission of guilt and shall give reasons for this decision, which shall be placed on the record.
After deciding whether to accept an admission of guilt, the Trial Chamber must provide written reasons for its decision. This Rule is consistent with the practice of the ICTY and ICTR, although the Tribunal Rules did not have a formal requirement for a reasoned judgment after a conviction based on a guilty plea. The Rule reflects the civil-law emphasis on holding judges accountable for their decisions and ensuring that the verdict—even when resting on an admission of guilt—is firmly supported by the factual evidence (Thaman 368-69). It also allows for appellate review of the decision and the correction of any factual and legal errors that may have occurred. 

Doctrine:
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford 2010).
   Stephen C. Thaman, ‘A Typology of Consensual Criminal Procedures: An Historical and Comparative Perspective on the Theory and Practice of Avoiding the Full Criminal Trial,’ in Stephen C. Thaman (ed.), World Plea Bargaining (Carolina AP 2010)
   Jenia Iontcheva Turner and Thomas Weigend, ‘Negotiated Justice,’ in Göran Sluiter et al. (eds.), International Criminal Procedure: Principles and Rules (Oxford UP 2013). 

Author:
Jenia Iontcheva Turner

Rule 140

[253] 1. If the Presiding Judge does not give directions under article 64, paragraph 8, the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions.
General remarks

Rule 140 concerns the order and manner in which the evidence shall be submitted to the Trial Chamber. It was one of the most controverisal rules during the negotiations. While cross-examination of witnesses conducted by parties is at the essence in an adversarial system, the judge's role in questioning witnesses is Paramount in an inquistorial system (Lewis, 2001, pp. 547-548).
   Although the Rome Statute states the main purpose of the hearing in Article 64 and outlines some general principles, such as that the hearing will normally be held in the presence of the accused, it does not detail the procedure to be followed. For common law lawqyers, article 64 lacks adequate guidance and could risk leading to the Court adopting procedures on a case-by-case basis (Lewis, 2001, p. 548). Rule 140 may be characterized as a clash of cultures. It does not contain any sequencing to instruct when the parties should examine a witness, which would be normal in a common law system. However, sub-rule 2(d) does provide that the defence shall have the right to be the last to examine a witness. 
   Turning to the participation of victims, in LubangaDecision on the schedule and conduct of the confirmation hearing, 7 November 2006, page 4, PTC I decided, inter alia, that "the Legal Representatives of the Victims may make opening and closing statements at the confirmation hearing in which they may not enlarge upon the evidence or facts in the case of "The Prosecutor v Thomas Lubanga Dyilo". In Annex I of the aforesaid decision PTC I decided that the prosecution examines its witness followed by crossexamination of the defence (transcript 15 November 2006, page 4).
   If the victims’ representatives wants to ask questions of a particular witness pursuant to Rule 91(3), after the Prosecution had finished its examination-in-chief, they have to seek permission to do so from the Chamber (Katanga and Ngudjolo, ICC T. Ch. II, Directions for the conduct of the proceedings and testimony in accordance with rule 140, 20 November 2009, 12, paras. 15–18; a similar approach was taken in Bemba, ICC T. Ch. III, Decision on Directions for the Conduct of the Proceedings, 19 November 2010 (II), para. 9; Ruto et al , ICC PT. Ch. II, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, 5 August 2011, paras. 98–100; Muthaura et al., ICC PT. Ch. II, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, 26 August 2011, paras. 115–117). In determining whether and how the Legal Representatives of the victims were allowed to call victims they represented to testify, the Chamber was guided by the overriding concern that this take place in an expeditious manner not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (Katanga and Ngudjolo, ICC T. Ch. II, 20 November 2009, 13, para. 21).
   In Lubanga the Pre-Trial Chamber found that the rule applies mutatis mutandis to pre-trial proceedings (Lubanga, ICC PT. Ch. I, 7 November 2006, 3.)

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(1)

[254] 1. If the Presiding Judge does not give directions under article 64, paragraph 8, the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions.
The presiding judge has under article 64(8)(b) and rule 140(1) broad discretion to determine how the trial is to be conducted, a typical civil-law feature. However, the same rule is a compromise between civil law and common law since it also suggests that the conduct of the proceeding can be put in the hands of the parties themselves, clearly an adversarial element (Ambos, 2003, p. 20).
   In Katanga and ChuiKatanga and Chui, Directions for the conduct of the proceedings and testimony in accordance with rule 140 including Corrigenda, 20 November 2009, para. 3, the parties and participants were largely in agreement about how the trial should be conducted. Nevertheless, in order to avoid any ambiguity and to provide clear guidance, the Presiding Judge, after consultation with the Chamber, decided to issue detailed directions for the conduct of the proceedings and testimony (pp. 9-43). This approach has been followed in Bemba, Decision on Directions for the Conduct of the Proceedings, 19 November 2010

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(2)

[255] 2. In all cases, subject to article 64, paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88, sub-rule 5, a witness may be questioned as follows:
Although there is no overt common law terminology, the four principles in sub-rule 2 adds guidance to article 64(8)(b) that induces the Court to adopt key adversarial elements during the trial (Lewis, 2001, p. 549-550).
   In LubangaDecision on the schedule and conduct of the confirmation hearing, 7 November 2006, page 9, PTC I decided, inter alia, that rule 140(2) of the Rules shall apply mutatis mutandis to the testimony of the witness who shall be called to testify at the confirmation hearing.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(2)(a)

[256] (a) A party that submits evidence in accordance with article 69, paragraph 3, by way of a witness, has the right to question that witness;
Article 69(3) provides that the parties may submit evidence relevant to the case. Rule 140(2)(a) add what would appear obvious, the party that has called a witness has the right to question that witness.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(2)(b)

[257] (b) The prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters;
Rule 140(2)(b) provides that the prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters. This may be done by cross-examination. Sub-rules 2(a) and 2(b) of rule 140 read together with rules 67(1) and 68 implicitly recognize the possibility of cross-examination and suggest that the party who submits the testimonial evidence is the first to examine the witness, who will then be examined by the other party. 
   In Katanga and Ngudjolo the Trial Chamber decided that cross-examination should be limited to matters raised during examination-in-chief and matters affecting the credibility of the witness. The cross-examining party might also induce the witness to give evidence about matters relevant to the case for the party, even if these were not raised during examination-in-chief. The Chamber stressed that cross-examination must also contribute to the ascertainment of the truth and was not to be used to obfuscate or delay the fact-finding process. The party cross-examining might ask leading, closed questions of a witness and challenge the credibility of a witness with challenging questions (Katanga and Ngudjolo, ICC T. Ch. II, 20 November 2009, 27–29, paras. 68–75). The Trial Chamber in Bemba expressed a preference for neutral questions in cross-examination, but stopped short of imposing a prohibition on leadings questions (Bemba, ICC T. Ch. III, 19 November 2010 (II), para. 15; Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05–01/08), ICC T. Ch. III, Decision on the Prosecution’s Request for Leave to Appeal the Trial Chamber’s Decision on Directions for the Conduct of the Proceedings, 15 December 2010, para. 19). Moreover, when Trial Chamber I in Lubanga determined that the scope of examination by a party not calling a witness it stated that “[i]n line with Article 69(3) of the Statute . . . a party may question a witness it has not called about matters which go beyond the scope of the witness’s initial evidence.” (Prosecutor v. Lubanga, (Case No. ICC-01/04–01/06), ICC T. Ch. I, Decision on various issues related to witness’ testimony during trial, 29 January 2008, para. 32). The reference to article 69(3) suggests that the Trial Chamber wanted to emphasize the objective of truth-seeking. 
   Rule 140(2)(b) also allows questions pertaining to "other relevant matters". In Lubanga, Decision on various issues related to witness' testimony during trial, 29 January 2008, para. 32, TC I hled that "[t]he concept of 'other relevant matters' under Rule 140(2)(b) of the Rules, includes, inter alia, trial issues (e.g. matters which impact on the guilt or innocence of the accused such as the credibility or reliability of the evidence), sentencing issues (mitigating or aggravating factors), and reparation issues (properties, assets and harm suffered).

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(2)(c)

[258] (c) The Trial Chamber has the right to question a witness before or after a witness is questioned by a participant referred to in sub-rules 2 (a) or (b);
The Trial Chamber has the right to question the witness, but is encouraged under sub-rule 2(c) to do so before or after a witness is questioned by a party in order to avoid the judges intervening in the cross-examination of a witness and thereby frustrating a party’s line of questioning. In Bemba, (Case No. ICC-01/05–01/08), ICC T. Ch., Public Redacted Version of the Chamber’s 11 November 2011 Decision regarding the prosecution’s witness schedule, 15 November 2011, para. 25, the Chamber stated that it “will not interfere with a party’s decisions regarding its selection and presentation of evidence unless there is a compelling reason to do so. This measure of deference permits the parties to shape their presentation of evidence in a manner that best fits their overall theory of the case.”

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(2)(d)

[259] (d) The defence shall have the right to be the last to examine a witness.
As indicated earlier, rule 140 does not contain any sequencing to instruct when the parties should examine a witness, which would be normal in a common law system. However, sub-rule 2(d) introduces a limit to the discretion of the Chamber as it explicitly provides that the defence shall have the right to be the last to examine a witness.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 140(3)

[260] 3. Unless otherwise ordered by the Trial Chamber, a witness other than an expert, or an investigator if he or she has not yet testified, shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying. When a witness testifies after hearing the testimony of others, this fact shall be noted in the record and considered by the Trial Chamber when evaluating the evidence.
The presumption is that each teastimony should be taken separately to avoid witnesses mutually influencing each other. This is of particular importance in rleation to witnesses who are testifying on their personal observation, but arguably less important when it comes to expert witnesses who testify on their technical, scientific or discrete sets of ideas or concepts (Ambos, 2016, pp. 469 and 483). Thus, sub-rule 3 makes a distinction between “expert witnesses” and other witnesses, whereby different rules may apply, for example on the possibility for the witness to be present when an other witness testifies.

Cross-references:
Article 64(8)(b) and 69(3)

Doctrine:
1. Kai Ambos, "International Criminal Procedure: “adversarial”, “inquisitorial” or mixed?", 3 International Criminal Law Review 2003 1-37, p. 20
2. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 100, 353, 366, 453-454, 465-466, 469, 483, 606.
3 Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1615-1618.
4. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 112, 432, 433, 435, 436-437, 439.
5. Peter Lewis, "Trial Procedure", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 547-550.
6. Peter Lewis, "Confirmation Hearing to Trial", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 230-233.
7. Alphons Orie, ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings’ in Antonio Cassese, Paola Gaeta and John R.W.D Jones (eds), The Rome Statute of the International Criminal Court, Oxford: Oxford University Press, 2002, pp. 1439-1495, p. 1488.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 141(1)

[261] 1. The Presiding Judge shall declare when the submission of evidence is closed. 
When all evidence has been heard, the Presiding Judge shall pursuant to sub-rule 1 declare that the submission of evidence is closed and pursuant to sub-rule 2 invite the Prosecutor and the defence to make their closing statements.
   In Katanga and Ngudjolo, Declaration of closure of submission of evidence, 7 February 2012, the Presiding Judge declared that the submission of evidence was closed in accordance with Rule 141(1) of the Rules. On 30 March 2012, both the Defence for Mr. Katanga and the Defence for Mr. Ngudjolo submitted their final briefs. In its final brief, the Defence for Mr. Katanga asked the Chamber to admit into evidence those portions of the Lubanga Judgment that address intermediaries DRC-OTP-P-143 and 316. The Trial Chamber rejected the Defence Request, see LubangaDécision relative à la requête de la Défense de Germain Katanga tendant à l'admission d'extraits du jugement prononcé dans l'affaire Lubanga, 26 April 2012.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 141(2)

[262] 2. The Presiding Judge shall invite the Prosecutor and the defence to make their closing statements. The defence shall always have the opportunity to speak last.
Sub-rule 2 provides that he Presiding Judge shall invite the Prosecutor and the defence to make their closing statements.The defence shall always have the opportunity to speak last, however the the parties "may seek a right to reply and rejoinder, subject to the Chamber’s discretion (Katanga and Ngudjolo, ICC. T. Ch. II, Order on the arrangements for the submission of the written and oral closing statements (regulation 54 of the Regulations of the Court), ICC-01/04-01/07-3218-tENG, 15 December 2011, para. 14.
   In LubangaLubanga, Order on the timetable for closing submissions, 12 April 2011, the Trial Chamber issued an order on the timetable for closing submissions. The order of public oral closing statements was: the prosecution, the participating victims and finally the defence (para. 7).

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 366, 367.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 433-434.
3. Peter Lewis, "Trial Procedure", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 550-551.
4. Peter Lewis, "Confirmation Hearing to Trial", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 233.

Author:
Mark Klamberg

Updated:
30 August 2017

Rule 142

[263] 1. After the closing statements, the Trial Chamber shall retire to deliberate, in camera. The Trial Chamber shall inform all those who participated in the proceedings of the date on which the Trial Chamber will pronounce its decision. The pronouncement shall be made within a reasonable period of time after the Trial Chamber has retired to deliberate.
2. When there is more than one charge, the Trial Chamber shall decide separately on each charge. When there is more than one accused, the Trial Chamber shall decide separately on the charges against each accused.
The meaning of the ‘reasonable period of time’ and the criteria to be relied upon in the determination of whether the duration of deliberations satisfies Rule 142(1) remain to be judicially determined in the future. As was expected, the time taken by the ICC Trial Chambers in the preparation of judgment varied and was informed by their specific circumstances of cases. Both the Lubanga and Ngudjolo verdicts were returned within 7 months after the closing statements. This is prima facie not an extraordinarily lengthy period for deliberations and judgment-drafting as compared to the ad hoc tribunals. However, the Katanga judgment was delivered 22 months after the closing arguments. To a large extent, this was a consequence of the Trial Chamber’s decision to change the legal characterization of facts by modifying the mode of liability under Regulation 55 (Katanga, ICC T.Ch., Decision on the implementation of Regulation 55 of the Regulations of the Court and severing the charges against the accused persons, ICC-01/04-01/07-3319-tENG/FRA, 21 November 2012). The implementation of Regulation 55 in the advanced stage when the deliberations were well underway led to their interruption and to the delay of additional 15 months before the verdict could be rendered. According to the minority opinion, this situation violated the Chamber’s duty to ensure expeditious process (Article 64(2), the accused’s right to be tried without undue delay (Article 67(1)(c)), and was inconsistent with the Chamber’s obligation under Rule 142(1) (Katanga, ICC T.Ch., Minority Opinion of Judge Christine Van den Wyngaert, Jugement rendu en application de l’article 74 du Statut, ICC-01/04-01/07-3464-AnxI, 7 March 2014, paras 118-128, 131).

Cross-reference:
Article 74(5)

Author:
Sergey Vasiliev

Rule 143

[264] Additional hearings on matters related to sentence or reparations
Pursuant to article 76, paragraphs 2 and 3, for the purpose of holding a further hearing on matters related to sentence and, if applicable, reparations, the Presiding Judge shall set the date of the further hearing. This hearing can be postponed, in exceptional circumstances, by the Trial Chamber, on its own motion or at the request of the Prosecutor, the defence or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91 and, in respect of reparations hearings, those victims who have made a request under rule 94.
Rule 143 imposes an obligation upon the Presiding Judge to set the date for a further separate hearing on matters related to sentence and, if applicable reparations, when requested by the Prosecutor or the accused. The procedural rule remains silent as to the time when a party to the proceedings should request the bench to conduct such an additional hearing. As evidenced from the early sentencing practice, a separate sentencing hearing was requested by the Prosecution in Lubanga as early as at the stage of the preparation to the trial [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012 (Lubanga Sentencing Decision), para. 20], whereas in Bemba [Prosecutor v. Bemba, ICC T. Ch. III, Decision on the timetable and on the sentencing procedure, ICC-01-05-01/08-3071, 26 May 2014] and Katanga [Prosecutor v. Katanga, ICC T. Ch. II, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01-07-3484, ICC-01/04-01/07-3437, 23 May 2014 (Katanga Sentencing Decision), para. 2], such hearings were requested at the final stages of the trial. After the judgement is delivered, the Trial Chamber sets the date for a sentencing hearing and invites the parties to the proceedings, including the legal representatives of victims, to file submissions on the relevant evidence for the purposes of sentencing along with their views as to the sentence to be imposed on the convicted person [Prosecutor v. Lubanga, ICC T. Ch. I, Order fixing the date for the sentencing hearing, ICC-01/04-01/06-2871, 24 April 2012, paras 5-6]. As there is no guidance within the statutory or procedural framework of the ICC in which order oral submissions should take place at the additional hearing on matters related to sentence, this is normally addressed by the Trial Chamber in its order assigning the date for the sentencing hearing. For example, in Lubanga, oral submissions were presented in the following order: the Prosecution, the participating victims, and finally the Defence [Prosecutor v. Lubanga, ICC T. Ch. I, Order fixing the date for the sentencing hearing, ICC-01/04-01/06-2871, 24 April 2012, para. 8]. In Katanga, the order was slightly changed and, instead of the Defence, the legal representatives of victims were to close oral submissions at the sentencing hearing [Prosecutor v. Katanga, ICC T. Ch. II, Ordonnance portant calendrier de la procédure relative à la fixation de la peine (article 76 du Statut), 7 mars 2014].
   The Rule also provides the possibility to postpone a sentencing hearing in “exceptional circumstances”. However, it still remains unclear, judging by the nascent jurisprudence of the Court what could constitute circumstances that would justify the postponement of the hearing. This will have to be decided on a case-by-case basis. As an example, difficulties in obtaining additional evidence for the purposes of sentencing might be considered to fall under “exceptional circumstances” that would justify such a delay. It is also significant that, apart from the Prosecution and the Defence, the postponement may be requested by the legal representatives of victims with respect to reparations hearings, which confirms the important role accorded to victims taking part in proceedings and reinforces the victim centric perception of the Court.  However, it may still be considered that victims participating in proceedings are put at a procedural disadvantage by only having the right to request the postponement of an additional hearing on reparations, while not being able to request the initiation of such a hearing.

Doctrine
1. G. Acquaviva, ”Single and Bifurcated Trials” in Göran Sluiter and others (Eds.) International Criminal Procedure: Principles and Rules, OUP, Oxford, 2013, pp. 534-543.
2. Eva Dwertmann, The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations, Martinus Nijhoff, Leiden/Boston, 2010.
3. Peter Lewis, ”Trial Procedure” in Roy S. Lee (ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 539-553. 

Authors:
Dr. Iryna Marchuk and B. Aloka Wanigasuriya.

Updated:
13 March 2017

Rule 144(1)

[265] 1. Decisions of the Trial Chamber concerning admissibility of a case, the jurisdiction of the Court, criminal responsibility of the accused, sentence and reparations shall be pronounced in public and, wherever possible, in the presence of the accused, the Prosecutor, the victims or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91, and the representatives of the States which have participated in the proceedings.
Rule 144 appears as the final provision in Chapter 6 of the International Criminal Court’s Rules of Procedure and Evidence (RPE). As a starting point, Article 74(5) of the Rome Statute sets out the requirements for a decision to be delivered in open court. Rule 144(1) provides further clarifies that decisions of the Trial Chamber regarding the admissibility of a case, the Court’s jurisdiction, the accused’s criminal responsibility, sentence and reparations should be pronounced in public, and wherever possible, in the presence of the accused, the Prosecutor, the victims or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91 and the representatives of States that have participated in the proceedings. Thus, the Rule has the effect of extending the Article 74 requirement for the delivery of decisions of the Court in ‘open court’ to the sentencing and reparations stages as well and adding an extra requirement of pronouncing these decisions ‘in public and whenever possible, in the presence of the accused’.
   The Rule is intertwined with the fairness of the trial. All aspects mentioned in the Rule (admissibility of a case, the jurisdiction of the Court, criminal responsibility of the accused and sentence and reparations) are of significant importance in terms of the rights of the accused and have an impact on all parties and participants to the proceedings. Furthermore, a public hearing, which allows the public and the press to be present when decisions are pronounced, generally enhances the fairness of a trial and public confidence in the judicial institution [Tochilovsky, 2008, p. 305]. As stated by Judge Pikis in his separate opinion in Kony et al, the two main reasons behind publicity of judgments and decisions are (i) to allow public scrutiny of the judiciary in order to safeguard the right to a fair trial, and (ii) to facilitate determination and identification of the scope of application of the law [Prosecutor v. Kony et al, ICC A. Ch, Decision of the Appeals Chamber on the Unsealing of Documents, Separate Opinion of Judge Georghios M. Pikis, ICC-02/04-01/05 OA, 4 February 2008, para. 9].

Authors:
Dr. Iryna Marchuk and B. Aloka Wanigasuriya

Updated:
21 June 2017

Rule 144(2)

[266] 2. Copies of all the above-mentioned decisions shall be provided as soon as possible to:
(a) All those who participated in the proceedings, in a working language of the Court;
(b) The accused, in a language he or she fully understands or speaks, if necessary to meet the requirements of fairness under article 67, paragraph 1 (f).
Rule 144(2) requires the court to provide copies of all the decisions mentioned in Rule 144(1) as soon as possible to all those who participated in the proceedings in one of the working languages of the Court (English or French as provided in Article 50(2)) and to the accused in a language s/he fully understands or speaks “if necessary to meet the requirements of fairness as set out in Article 67(1)(f)”. In Lubanga, a status conference was convened pursuant to Rule 132(2) to discuss the translation of the Trial Chamber’s Article 74 decision on the guilt of the accused [Prosecutor v. Lubanga, ICC T. Ch. I, Scheduling order for a status conference on the translation of the judgment, ICC- 01/04-01/06-2818, 8 November 2011]. Given that neither the Statute nor the Rules expressly answer the question as to whether it is necessary to simultaneously deliver a translation of the Chamber’s decision in both working languages, the Chamber considered the issue of whether such simultaneous delivery was necessary [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the translation of the Article 74 Decision and related procedural issues, ICC-01/04-01/06-2834, 15 December 2011, paras 2 and 17]. Here, the Chamber posed the important questions of (i) whether it is “permissible and fair to move to the sentencing and reparations phase of the proceedings (in the event of a conviction) or the release of the accused (in the event of an acquittal) if the parties and the participants have not been provided with the French translation”; and (ii) what the implications were for any appellate phase of the proceedings if the Chamber decides to release the English version of the judgment before the French translation is available [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the translation of the Article 74 Decision and related procedural issues, ICC-01/04-01/06-2834, 15 December 2011, para. 17]. With regard to the first question, in avoid any further delays, the Chamber found that the Statute permits moving on to the sentencing or reparations stage even if the defence had only been provided with the English version of the decision, provided that (1) it receives the support of the parties and participants; (2) there are no concerns as to fairness; and (3) notwithstanding that certain minimum safeguards need to be in place [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the translation of the Article 74 Decision and related procedural issues, ICC-01/04-01/06-2834, 15 December 2011, paras 20-1 and 26]. With regard to an appeal, the Chamber determined that under Rule 144(2)(b) the accused is considered to have been "notified" of the Article 74 Decision in the event of a conviction only when the French translation is effectively sent from the Court by the Registry [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the translation of the Article 74 Decision and related procedural issues, ICC-01/04-01/06-2834, 15 December 2011, paras 24 and 26].
   This position is also consistent with the approach of Pre-Trial Chamber II in Bemba where it was determined that the five-day period for filing an application for leave to appeal only commenced on the date of notification of the French translation of the relevant decision [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the translation of the Article 74 Decision and related procedural issues, ICC-01/04-01/06-2834, 15 December 2011, para. 24]. Furthermore, in certain instances, Rule 144 has been utilised when requesting extensions of time. In Bemba et al., given the difficulty in obtaining a complete French translation of the conviction decision by the deadline proposed by the Prosecutor, the Appeals Chamber requested that the appellants briefly specify the legal findings of the Trial Chamber that they intend to appeal [Prosecutor v. Bemba et al, ICC A. Ch., Decision on requests for an extension of the time limit for the filing of the documents in support of the appeal, ICC-01/05-01/13 A A2 A3 A4 A5, 23 November 2016, Para. 21]. Additionally, the Appeals Chamber was persuaded by the parties’ submissions that the unavailability of the complete French translation of the decision constitutes a good cause for granting an extension of the 90-day time limit pursuant to Regulation 58 for filing the documents in support of the appeal [Prosecutor v. Bemba et al, ICC A. Ch., Decision on requests for an extension of the time limit for the filing of the documents in support of the appeal, ICC-01/05-01/13 A A2 A3 A4 A5, 23 November 2016, Para. 18]. While neither of the defendants nor the Appeals Chamber made direct reference to the availability of such a translation being directly linked to the fairness of trial under Article 67, it clearly relates to the fairness guarantees.
   As for the requirement that decisions should be pronounced ‘wherever possible’, in the presence of the accused, it is important to note that generally, the accused has a right to be present during all stages of the trial. While continental European criminal procedure is familiar with the concept of trials in absentia, international criminal procedure, which resembles Anglo-American practices in that regard, demonstrates a preference for the accused’s presence at trial [Safferling, 2012, p. 396]. Trials in absentia are generally perceived as being unfair and have been prohibited at the ad hoc tribunals (Article 21(4)(d) ICTY Statute, Article 20(4)(d) ICTR Statute). This prohibition relates to the rights enshrined in Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR). However, at the ad hoc tribunals the accused’s right to be present at trial is not absolute [Prosecutor v. Zigiranyirazo, Decision on Interlocutory Appeal, case No. ICTR-2001-AR73, App. Ch., 30 October 2006, para. 14; Prosecutor v. Milosevic, Decision on Interlocutory Appeal of the trial Chamber’s Decision on the Assignment of Defence Counsel, case No. IT-02-54-AR73.7, App. Ch., 1 November 2004, para. 13] and is subject to two exceptions, these being (i) waiver, and (ii) disruption [Prosecutor v. Zigiranyirazo, Decision on Interlocutory Appeal, case No. ICTR-2001-AR73, App. Ch., 30 October 2006, para. 14; Prosecutor v. Milosevic, Decision on Interlocutory Appeal of the trial Chamber’s Decision on the Assignment of Defence Counsel, case No. IT-02-54-AR73.7, App. Ch., 1 November 2004, para. 13]. With regard to the ICC, an express prohibition against trials in absentia is contained in Article 63(1) of the Rome Statute, with the defendant’s right to be present at trial being set out in Article 67(1)(d). However, just as with the ad hoc tribunals, the right to be present comes with exceptions. Article 63(2) provides the Trial Chamber with the power to remove the accused from the courtroom in exceptional circumstances, if the accused continues to disrupt the trial. Additionally, Rules 134 ter (excusal from presence at trial), 134 quater (excusal from presence at trial due to extraordinary public duties) and 134 bis (presence through the use of video technology) of the RPE provide further exceptions which apply to situations where the accused’s presence may not be required (See resolution ICC-ASP/12/Res.7, 27 November 2013).

Doctrine
1. Nina H.B. Jørgensen and Alexander Zahar, ”Deliberation, Dissent, Judgment” in Göran Sluiter and others (Eds.) International Criminal Procedure: Principles and Rules, OUP, Oxford, 2013, pp. 1151-1201.
2. Peter Lewis, ”Trial Procedure” in Roy S. Lee (ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 539-553.
3. Christoph Safferling, International Criminal Procedure, Oxford University Press, Oxford, 2012.
4. Vladimir Tochilovsky, Jurisprudence of the International Criminal Courts and the European Court of Human Rights: Procedure and Evidence, Martinus Nijhoff Publishers, Leiden/Boston, 2008.

Authors:
Dr. Iryna Marchuk and B. Aloka Wanigasuriya

Updated:
21 June 2017

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