From Nuremberg to The Haag Von Nürnberg nach Den Haag Due process guarantees | From Nuremberg to The Hague

Due process guarantees

Rome Statute of the ICC, Art. 21, 3:
“The application and interpretation
of law must be consistent with inter-
nationally recognized human rights,
and be without any adverse distinc-
tion founded on grounds such as
gender, age, race, colour, language,
religion or belief, political or other
opinion, national, ethnic or social
origin, wealth, birth or other status.”

Rights of the accused

The first permanent international criminal court in history must also offer the requisite procedural guarantees in order to be an international model of fairness. It must therefore protect the rights of the accused, who is presumed innocent until proven guilty, and at the same time safeguard the rights of victims and witnesses. A fair trial must ensure that the rights of all concerned are fairly balanced.

The Statute reaffirms general principles such as:

›    Ne bis in idem (double jeopardy):
Nobody may be tried more than once for the same conduct.
›    Nullum crimen sine lege:
Nobody may be tried for conduct that is not defined as a crime
in the Statute.
›    Presumption of innocence:
All defendants are presumed innocent until proven guilty.
›    No retroactive jurisdiction:
Nobody may be tried for anything they did before the Court
was established.

Accused persons before the ICC enjoy all the usual rights of the defence. They are free to hire their chosen defence counsel, and are, if applicable, entitled to a properly qualified court-appointed defence lawyer. They may call their own witnesses and question prosecution witnesses. They have the right to see prosecution evidence and to present their own evidence. They may appeal against decisions taken by the Court during the trial and may likewise appeal the judgment, should they not accept it. In short, they have all the rights required to prepare and present their defence as well as possible.

Whilst in pre-trial detention, the accused is entitled to be held in humane conditions that meet international standards. Accused persons are thus held in conditions that are better than those in prisons in many states around the world. Calling their treatment “unjust”, as some have done, is simply wrong.

Due Process

On the other hand, it must also be ensured that accused persons, who have allegedly committed grievous crimes, do not exercise their rights to the detriment of victims or potential prosecution witnesses. Defendants do not have the right to evade trial by the ICC. For this reason the Prosecutor may, with the Court’s consent, request that a warrant of arrest be issued under seal, i.e. without the accused being informed of the existence of the warrant. This measure is not unreasonable since the ICC has to rely on the cooperation of states to arrest suspects, as it has no executive organs of its own.

The ICC availed itself of the option of issuing a warrant of arrest under seal in its first case. On 10 February 2006, the Court issued a warrant of arrest for Congolese militia leader Thomas Lubanga, which was however kept secret until his arrest on 19 March. On March 14, 2012, the Court found Lubanga guilty of the crime of enlisting and conscripting children.

According to the general principles of international law, no statute of limitations applies for core international crimes. Accused persons cannot therefore rely on a statute of limitations under the Rome Statute (see Art. 29). The Rome Statute does not impose specific sentences for the various offences, but rather lays down a maximum sentence (life imprisonment). The Court may also impose fixed terms of imprisonment of up to 30 years, or order fines or the forfeiture of property (Arts. 77 and 78). It may not impose the death penalty, as this would breach human rights standards.