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

investigation and pre-trial procedure 127
and witnesses, and to be especially thoughtful in matters involving sexual
violence, gender violence or violence against children. 29
It is at the investigation stage that major differences between national
and international justice are highlighted. Under a national justice system,
the prosecuting authority has more or less unfettered access to witnesses
and material evidence, subject to judicial authorisation where search or
seizure are involved. The matter is not nearly as simple for an international
court, because the Prosecutor must conduct investigations on the territory
of sovereign States. The investigation depends on the receptivity of the
domestic legal system to initiatives from the Prosecutor’s office. This will
be especially difficult in the case of States that are not parties to the Statute
or States that find themselves threatened by such an investigation, both of
them rather probable scenarios.
The Prosecutor’s powers during an investigation consist of collection and
examination of evidence and attendance and questioning of suspects, victims
and witnesses. Here, the Prosecutor may seek the cooperation of States
or intergovernmental organisations, and even enter into arrangements or
agreements necessary to facilitate such cooperation. He or she may also agree
to the non-disclosure of materials that are obtained under the condition of
confidentiality and solely for the purpose of generating new evidence. 30 The
effect of such a provision is to shelter such information from any requirement
of disclosure to the defence.
The Prosecutor’s ability to conduct ‘on site investigations’, as they were
referred to during the drafting, was highly controversial. Some delegations
were unambiguously opposed, taking the view that investigation was solely
the prerogative of the State in question, as it would be in the case of inter-State
judicial cooperation. Ultimately, the Prosecutor is allowed under the Statute
to undertake specific investigative steps in the territory of a State without
having previously obtained its consent and cooperation. But any such investigation
is contingent upon judicial leave. Thus, the Pre-Trial Chamber must
authorise any such measures, and it can only do so after determining that
the State is clearly unable to execute a request for cooperation due to the
unavailability of any appropriate authority within its judicial system. 31 In
practice, such a power ‘is not practicable and cannot be effectively utilized’,
as Fabricio Guariglia has pointed out. 32 Elsewhere, the Statute allows the
29 Rome Statute, Art. 54(1)(b). 30 Ibid., Art. 54(3)(e). 31 Ibid., Art. 57(3)(d).
32 Fabricio Guariglia, ‘Investigation and Prosecution’, in Lee, The International Criminal Court,
pp. 227–38.