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

144 introduction to the international criminal court
ThetrialistotakeplaceattheseatoftheCourt,inTheHague,unlessotherwise
decided. 1 The trial shall be held in public, something that is expressed
both as a duty of the Trial Chamber and as a right of the accused. Nevertheless,
the Trial Chamber may depart from the general principle of a public
hearing. A detailed enumeration of exceptions to the public hearing principle
had been proposed but was rejected by the Preparatory Committee.
Article 64(7) explicitly allows in camera proceedings for the protection of
victims and witnesses, or to protect confidential or sensitive information to
be given in evidence. Furthermore, Article 68(2) provides:
As an exception to the principle of public hearings provided for in article 67,
theChambersoftheCourtmay,toprotectvictimsandwitnessesoranaccused,
conduct any part of the proceedings in camera or allow the presentation of
evidence by electronic or other special means. In particular, such measures
shall be implemented in the case of a victim of sexual violence or a child who
is a victim or a witness, unless otherwise ordered by the Court, having regard
to all the circumstances, particularly the views of the victim or witness.
The already elaborate case law of the ad hoc tribunals in this matter should
guide the Court in this difficult area. 2 Confidential or sensitive information
may have several sources. There may be claims to confidentiality based
on privilege, and the Court is to respect this pursuant to Article 69(5), as
provided for in the Rules of Procedure and Evidence. But the major source
of problems with this exception will be information derived from sovereign
States. The Statute allows a State to apply ‘for necessary measures’ to respect
‘confidential or sensitive information’. 3
The accused must be present at trial, 4 even those parts of it that are held
in camera. 5 During the drafting of the Statute, there was considerable debate
1 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (hereinafter ‘Rome
Statute’), Art. 62; Rules of Procedure and Evidence,UN Doc. PCNICC/2000/INF/3/Add.3, Rule
100.
2 For example, Prosecutor v. Tadic (Case No. IT-94-1-T), Decision on the Prosecutor’s Motion
Requesting Protective Measures for Victims and Witnesses, 10 August 1995; Prosecutor v. Rutaganda
(Case No. ICTR-96-3-T), Decision on the Preliminary Motion Submitted by the Prosecutor
for Protective Measures for Witnesses, 26 September 1996. See Anne-Marie La Rosa, ‘Réflexions
sur l’apport du Tribunal pénal international pour l’ex-Yougoslavie au droit àunprocès équitable’,
(1997) Revue générale de droit international public 945 at 962–70.
3 Rome Statute, Art. 68(6).
4 Ibid., Art. 63. Art. 67(1)(d), concerning the rights of the accused, also declares: ‘Subject to article
63, paragraph 2, [the accused has the right] to be present at the trial.’
5 Rome Statute, Art. 72(7) allows for a hearing concerning the protection of national security
information to take place ex parte, that is, in the absence of one or both of the parties.