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

investigation and pre-trial procedure 131
Statute. If such standards were universally respected, there would probably
be no need for an international criminal court!
A person suspected of having committed a crime subject to the jurisdiction
of the Court is entitled to be informed of other specific rights prior to
being questioned. 46 The person shall be informed that he or she is indeed
suspected of having committed a crime, that he or she may remain silent
without such silence being a consideration in determining guilt or innocence
at trial, to have legal assistance, if necessary provided for them in cases of
indigence and where the interests of justice so require, and to be questioned
in the presence of counsel unless this right has been voluntarily waived.
These rights go well beyond the requirements of international human rights
norms set out in such instruments as the International Covenant on Civil
and Political Rights, 47 and as a general rule surpass the rights recognised in
even the most advanced and progressive justice systems. 48 But the Statute
insists that these norms be honoured, even if the questioning is being carried
out by officials of national justice systems pursuant to a request from the
Court. If these rules are violated, the Court is entitled to exclude any evidence
obtained, such as a confession. 49 However, before excluding evidence
the Court must also satisfy itself that the violation ‘raises substantial doubt
on the reliability of the evidence’ or that ‘the admission of the evidence would
be antithetical to and would seriously damage the integrity of the proceedings’.
In any event, given these elaborate provisions, it is hard to imagine
why any suspect would ever agree to talk to investigators from the office of
the Prosecutor. Certainly competent defence counsel will almost invariably
advise against any cooperation, except in exceptional circumstances, such
as a declaration that an alibi defence will be invoked at trial.
The Statute makes special provision for testimony or evidence that may
not be available at trial. An example would be testimony of a victim who will
die before trial. While the interests of justice require that special provision
be made to allow for the admissibility of such evidence, or rather a record
of it, there is also the need to protect the rights of the defence. Article 56
entitles the Prosecutor, when there is a ‘unique investigative opportunity’
with respect to testimony or evidence that may subsequently be unavailable,
to request authorisation to record the testimony or to collect and test the
46 See on this point Prosecutor v. Music (Case No. IT-96-21-T), Decision on Music’s Motion for
Exclusion of Evidence, 2 September 1997.
47 International Covenant on Civil and Political Rights, (1966) 999 UNTS 171, Art. 9.
48 Rome Statute, Art. 55(2). 49 Ibid., Art. 69(7).