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

general principles of criminal law 97
One answer is that there may well be a denial of the presumption of innocence
but that it will not have been committed by the Court itself. But the
Appeals Chamber of the International Criminal Tribunal for Rwanda has
already judged it appropriate to grant a stay of proceedings in a case where
the rights of an accused were violated by a national justice system and not
by the authorities of the tribunals themselves. 19
Arguably, the presumption of innocence may require that decisions by the
Court, particularly given the seriousness of the charges and of the available
sentences, be unanimous. Certainly, where questions of fact are at issue,
is it not logical to conclude that, where one member of the Court has a
reasonable doubt, this should be enough to create a reasonable doubt in the
minds of the tribunal as a whole? 20 Compelling as the suggestion may be –
and it was argued by some delegates at the Rome Conference – the Statute
provides clearly that in case of division, a majority of the Court will suffice
for a finding of guilt. 21
Rights of the accused
During World War II, Churchill and other Allied leaders flirted with the idea
of some form of summary justice for major war criminals. 22 But, speaking
of the Nuremberg trial, prosecutor Robert Jackson said that history would
assess the proceedings in light of the fairness with which the defendants were
treated. Only a few years later, one of the ‘successor’ military tribunals at
Nuremberg held that Nazi prosecutors and judges involved in a trial lacking
the fundamental guarantees of fairness could be held responsible for crimes
against humanity. Such guarantees include the presumption of innocence,
the right of the accused to introduce evidence, to confront witnesses, to
present evidence, to be tried in public, to have counsel of choice, and to
be informed of the nature of the charges. 23 And, more recently, the judges
Yugoslavia for their responsibilities in the massacre. The word ‘alleged’ did not accompany the
reference to their responsibilities. The resolution ‘[c]ondemn[ed] in particular in the strongest
possible terms the violations of international humanitarian law and of human rights by Bosnian
Serb and paramilitary forces in the areas of Srebrenica’.
19 Barayagwiza v. Prosecutor (Case No. ICTR-97-19-AR72), Decision of 3 November 1999.
20 For such a suggestion, see Lawyers Committee for Human Rights, ‘Fairness to Defendants at the
International Criminal Court’, August 1996, pp. 12–13.
21 Rome Statute, Art. 74(3).
22 Arieh J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment,
Chapel Hill, NC, and London: University of North Carolina Press, 1998, pp. 63–91.
23 United States of America v. Alstötter et al. (‘Justice trial’), (1948) 3 TWC 1, 6 LRTWC 1, 14 ILR 278.