Gender Report Card on the International Criminal ... - YWCA Canada

Trial Proceedings
State Party, taking into consideration the latter’s
competence and experience in investigating
breaches of this kind. Should the Chamber
decide to delegate its authority over the matter
to the State Party, the filing suggested that it
should carefully consider the factors contained
in Rule 162(2), 1291 as well as the potential impact
of such delegation on victims and witnesses,
of particular importance in this matter due to
the nature of the breach. The LRVs observations
recognised that no statutory provision indicated
that the investigation and prosecution of such
offences should be assigned to any body other
than that of the Office of the Prosecutor. They
noted that, in contrast, the statutory frameworks
of the International Criminal Tribunals for the
Former Yugoslavia (ICTY) and Rwanda (ICTR)
provided for the possibility of using an ad hoc
investigator in the event of a conflict of interest
by the Prosecution. By analogy, they asserted
that if the Chamber found there was a conflict of
interest in assigning an investigation pursuant
to Article 70 to the Office of the Prosecutor,
it could request that the Registry submit an
amicus curiae brief as to whether rationale exists
for opening an independent investigation led by
an entity unaffiliated with the Court.
In its observations, 1292 the Prosecution asserted
that it fell within the sole discretion of the
Office to investigate offences against the
administration of justice pursuant to Article
70 of the Statute, as explicitly foreseen in Rule
165 of the Rules of Procedure and Evidence. 1293
Regarding any role to be played by the
1291 Factors to consider in Rule 162(2) include: the availability
and effectiveness of prosecution in a State Party; the
seriousness of the offence; possible joinder of charges
under Article 70 with charges under Articles 5 to 8; the
need to expedite proceedings; links with an ongoing
investigation or trial before the Court; and evidentiary
considerations.
1292 ICC-01/04-01/06-2716.
1293 Rule 165(1) provides: ‘The Prosecutor may initiate and
conduct investigations with respect to the offences
defined in Article 70 on his or her own initiative, on the
basis of information communicated by a Chamber or
any reliable source.’
Registry, the Prosecution emphasised that its
responsibilities were limited to ‘non-judicial
aspects of the administration and servicing
of the Court’. 1294 It also asserted that should
the Chamber find a conflict of interest, the
Prosecution could create internal divisions
within its Office for the purpose of conducting
the Article 70 investigation.
The Defence explicitly requested that the
Chamber retain an independent investigator for
the Article 70 investigation. 1295 While recognising
that conducting investigations, including those
into offences against the administration of
justice, fell within the competence of the Office
of the Prosecutor, it asserted that the Chamber
should not refrain from derogating from this
Rule in the interests of a fair trial. Specifically,
the Defence noted the inherent conflict of
interest as the Prosecution would be required to
question Defence witnesses, to whose position it
remained opposed, as part of any probe into the
circumstances surrounding the alleged Article
70 breach. The Defence also suggested the
possibility of the Chamber utilising by analogy
the statutory framework for the ICTY and ICTR to
request amicus curiae by the Registry.
As of the writing of this <strong>Report</strong>, Trial Chamber
I had not yet made any determination with
respect to an investigation into an alleged
Article 70 breach.
1294 ICC-01/04-01/06-2716 para 4, referencing Article 43(1).
1295 ICC-01/04-01/06-2715.
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