An Introduction To The International Criminal Court - Institute for ...

96 introduction to the international criminal court
It requires, inter alia, that when carrying out their duties, the members of
a court should not start with the preconceived idea that the accused has
committed the offence charged; the burden of proof is on the prosecution,
and any doubt should benefit the accused. It also follows that it is for the
prosecution to inform the accused of the case that will be made against him,
so that he may prepare and present his defence accordingly, and to adduce
evidence sufficient to convict him. 15
In its ‘General Comment’ on Article 14 of the International Covenant on
Civil and Political Rights, the UN Human Rights Committee has insisted
that the presumption of innocence imposes a duty on all public authorities to
‘refrain from prejudging the outcome of a trial’. 16 According to the European
Commission of Human Rights:
It is a fundamental principle embodied in [the presumption of innocence]
which protects everybody against being treated by public officials as being
guilty of an offence before this is established according to law by a competent
court. Article 6, paragraph 2 [of the European Convention on Human Rights],
therefore, may be violated by public officials if they declare that somebody is
responsible for criminal acts without a court having found so. This does not
mean, of course, that the authorities may not inform the public about criminal
investigations. They do not violate Article 6, paragraph 2, if they state that a
suspicion exists, that people have been arrested, that they have confessed, etc.
What is excluded, however, is a formal declaration that somebody is guilty. 17
Transposing these notions, derived from domestic prosecutions, to the
international context gives some intriguing results. The ‘authorities’ on
the international scene will be such bodies as the Commission on Human
Rights, the High Commissioner for Human Rights, the Security Council,
the General Assembly and the Secretary-General. If, for example, the General
Assembly charges that genocide has been committed by the leaders of a
given regime, can the latter invoke this essentially political accusation before
the ICC in claiming that the presumption of innocence has been denied? 18
15 Barberà, Messegué and Jabardo v. Spain, Series A, No. 146, 6 December 1988, para. 77.
16 ‘General Comment 13/21’, UN Doc. A/39/40, pp. 143–7.
17 Krause v. Switzerland (App. No. 7986/77), (1978) 13 DR 73. Also, from the Court, see Allenet de
Ribemont v. France, Series A, No. 308, 10 February 1995, paras. 37 and 41. See Francis G. Jacobs
and Robin C. A. White, The European Convention on Human Rights, 2nd edn, Oxford: Clarendon
Press, 1996, p. 150.
18 A Security Council resolution denouncing the atrocities in Srebrenica, UN Doc. S/RES/1034
(1995), singled out for special mention the Bosnian Serb leaders Radovan Karadzic and Ratko
Mladic, noting that they had been indicted by the International Criminal Tribunal for the Former