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

100 introduction to the international criminal court
lack of ‘prejudice or bias’. 34 It comprises both a subjective and an objective
dimension: ‘[t]he existence of impartiality . . . must be determined
according to a subjective test, that is, on the basis of the personal conviction
of a particular judge in a given case, and also according to an objective
test, namely, ascertaining whether the judge offered guarantees sufficient to
exclude any legitimate doubt in this respect’. 35 Here, too, the case law of the
ad hoc tribunals provides guidance as to how such provisions are applied
in a context of international criminal justice. In one case, defendants challenged
the impartiality of a judge who had, during the proceedings, been
elected vice-president of her country. Dismissing the argument, the Appeals
Chamber noted that she had not exercised any executive functions while the
trial was underway. It said the test to be applied was ‘whether the reaction
of the hypothetical fair-minded observer (with sufficient knowledge of the
circumstances to make a reasonable judgment) would be that [the judge]
might not bring an impartial and unprejudiced mind to the issues arising
in the case’. 36
Among the guarantees to the defendant set out in Article 67 are the right
to be informed in detail of the nature, cause and content of the charge,
to have adequate time and facilities for the preparation of the defence, to
communicate freely with counsel of one’s choosing, to be tried without
undue delay, to be present at trial, to examine witnesses, and to benefit
from the services of an interpreter if required. The International Covenant
on Civil and Political Rights is more than thirty years old and, reflecting
evolving contemporary standards of procedural fairness, the Rome Statute
goes somewhat beyond the minimum requirements found in Article 14(3)
of the Covenant. Thus, Article 67 of the Statute ensures the right to silence,
the right to make an unsworn statement, and a protection against any reversal
of the burden of proof or an onus of rebuttal. In addition to persons
charged with an offence, the Statute also enumerates rights that accrue to
‘persons during an investigation’ 37 and to persons about to be questioned by
the Prosecutor or even national authorities for crimes within the jurisdiction
of the Court. 38
34 Piersack v. Belgium, Series A, No. 53, 1 October 1982.
35 Hauschildt v. Denmark, Series A, No. 154, 24 December 1989, para. 46.
36 Prosecutor v. Delalic (Case No. IT-96-21-A), Judgment, 20 February 2001, para. 683. Judge Odio
Benito has since been elected to the International Criminal Court, where she serves as one of its
two vice-presidents.
37 Rome Statute, Art. 55(1). 38 Ibid., Art. 55(2).