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

investigation and pre-trial procedure 139
to secure the person’s appearance and to inform him or her of the charges
and the fact that such a confirmation hearing is to be held. The Pre-Trial
Chamber may allow an absent accused to be represented by counsel when
this is in ‘the interests of justice’. 78
The pre-trial confirmation hearing resembles in some ways the ‘Rule 61
Procedure’ adopted by the ad hoc tribunals. In the early days, when there
was little real trial work because few accused had been apprehended, the
judges of the International Criminal Tribunal for the Former Yugoslavia
developed an original technique of ex parte hearings, pursuant to Rule 61
of their Rules of Procedure and Evidence, at which prosecution evidence
was led and the Tribunal ruled on the sufficiency of the evidence. 79 Despite
persistent denials, 80 it had many similarities with an in absentia procedure
and was, in many respects, an honourable compromise between the different
views of the Romano-Germanic and common law systems with respect
to such proceedings. The Tribunal has used the ex parte hearing procedure
when frustrated with attempts to arrest a defendant. The situation is rather
different with the pre-trial confirmation hearing of the International Criminal
Court, as this will only take place with an absent accused in the case
of an individual who was arrested or summoned, who appeared before the
Pre-Trial Chamber and was granted interim release, and who subsequently
absconded.
Prior to the confirmation hearing, the accused is to be provided with a
copy of the document containing the charges, and to be informed of the evidence
on which the Prosecutor intends to rely at the hearing. The Pre- Trial
Chamber may make orders concerning disclosure of information for the
purposes of the hearing. The Statute does not specify whether such orders
can only be directed against the Prosecutor, although it seems that this flows
78 Rome Statute, Art. 61(2); Rules of Procedure and Evidence, Rules 121–126.
79 Pursuant to Rule 61, ‘Rules of Procedure and Evidence’, UN Doc. IT/32. See Faiza Patel King,
‘Public Disclosure in Rule 61 Proceedings Before the International Criminal Tribunal for the
Former Yugoslavia’, (1997) 29 New York University Journal of International Law and Policy 523;
Mark Thieroff and Edward A. Amley Jr, ‘Proceeding to Justice and Accountability in the Balkans:
The International Criminal Tribunal for the Former Yugoslavia and Rule 61’, (1998) 23 Yale
Journal of International Law 231.
80 Prosecutor v. Rajic (Case No. IT-95-12-R61), Review of the Indictment Pursuant to Rule 61 of
the Rules of Procedure and Evidence, 13 September 1996: ‘A Rule 61 proceeding is not a trial in
absentia. There is no finding of guilt in this proceeding.’ Prosecutor v. Nikolic (Case No. IT-95-
2-R61), Review of Indictment Pursuant to Rule 61, 20 October 1995, (1998) 108 ILR 21: ‘The
Rule 61 procedure . . . cannot be considered a trial in absentia: it does not culminate in a verdict
nor does it deprive the accused of the right to contest in person the charges brought against him
before the Tribunal.’