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

150 introduction to the international criminal court
many misconceptions on both sides about the other system’s approach to
admissions of guilt. At common law, undertakings by the prosecutor do
not bind the judge, who must be satisfied that there is sufficient evidence
and that there is no charade or fraud on the court. But erroneous notions
by some European lawyers about common law procedure resulted in the
addition of a totally superfluous provision, Article 65(5), to reassure them
that plea negotiations could not bind the Court. In continental systems,
an admission of guilt will be a compelling factor and will almost certainly
simplify the process. 36 Thus, it is not correct to say that continental judges
are indifferent to admissions of guilt and that this does not accelerate the
trial.
Under the Rome Statute, a ‘healthy balance’ has been struck between the
two approaches. 37 When an accused makes an admission of guilt, the Trial
Chamber is to ensure that he or she understands its nature and consequences,
that the admission has been made voluntarily after sufficient consultation
with counsel, and that it is supported by the facts of the case. 38 If the Trial
Chamber is not satisfied that these conditions have been met, it deems the
admission not to have been made and orders that the trial proceed. It may
even order that the trial take place before another Trial Chamber. Alternatively,
the Trial Chamber may consider that ‘a more complete presentation
of the facts of the case is required in the interests of justice, in particular the
interests of the victims’, and request additional evidence to be adduced.
Evidence
Unlike the common law system, with its complex and technical rules of
evidence, the Statute follows the tradition of international criminal tribunals
by allowing the admission of all relevant and necessary evidence. 39 Probably
the biggest surprise here, for lawyers trained in common law systems, is that
36 Behrens, ‘Investigation, Trial and Appeal’, pp. 123–4.
37 Silvia A. Fernández de Gurmendi, ‘International Criminal Law Procedures’, in Lee, The International
Criminal Court, pp. 217–27 at p. 223.
38 Rome Statute, Art. 65(1).
39 Two recent volumes fill a gap in the literature, providing general overviews on the issue of
evidence before international criminal tribunals, including the International Criminal Court:
Richard May and Marieka Wierda, International Criminal Evidence, Ardsley, NY: Transnational
Publishers, 2002; Rodney Dixon and Karim Khan, Archbold International Practice,
Procedure and Evidence of International Criminal Courts, Hampshire: Sweet & Maxwell,
2002.