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

trial and appeal 155
in its drafting, speaking of ‘the ambiguities of some of the provisions’, 69 has
certainly understated the matter. Basically, Article 72 leaves determination
of whether or not matters affect national security to the State itself. The
provision would seem to make things rather straightforward for a State that
wishes to stonewall the Court. Where a State refuses a request for information
in its possession, the Court may not order production. 70 It can only refer
the non-compliance of the State concerned to the Assembly of States Parties
or the Security Council although it can also draw ‘evidentiary inferences’.
In order to convict, the Court must be convinced of the guilt of the
accused beyond reasonable doubt. 71 The words are more familiar to lawyers
from common law systems than they are to those from Romano-Germanic
systems, which generally require guilt to be proven to a degree that satisfies
the intime conviction of the trier of fact. The European Commission and
Court of Human Rights have no clear pronouncement on which standard
is preferable in light of human rights norms. 72 An amendment specifying
the ‘reasonable doubt’ standard of proof was defeated during the drafting
of Article 14 of the International Covenant on Civil and Political Rights. 73
However, the Human Rights Committee has been less circumspect, clarifying
that the prosecution must establish proof of guilt beyond reasonable
doubt. 74 The International Military Tribunal at Nuremberg applied the standard
of reasonable doubt, stating explicitly in its judgment that Schacht and
von Papen were to be acquitted because of failure to meet that burden of
proof. 75 As for the ad hoc tribunals, they seem to have had no difficulty with
the issue, and there are frequent statements in their initial judgments to the
effect that the reasonable doubt standard applies. 76 The Rules of Procedure
and Evidence, adopted by the judges, specify: ‘A finding of guilt may be
reached only when a majority of the Trial Chamber is satisfied that guilt
69 Piragoff, ‘Protection of National Security Information’, p. 294. See also Rodney Dixon and Helen
Duffy, ‘Article 72’, in Otto Triffterer, ed., Commentary on the Rome Statute of the International
Criminal Court: Observers’ Notes, Article by Article, Baden-Baden: Nomos, 1999, pp. 937–46.
70 Rome Statute, Art. 72(7)(a). 71 Ibid., Art. 66(3).
72 Austria v. Italy, (1962) 9 Yearbook 740 at 784.
73 UN Doc. E/CN.4/365; UN Doc. E/CN.4/SR.156.
74 ‘General Comment 13/21’, UN Doc. A/39/40, pp. 143–7, para. 7.
75 France et al. v. Goering et al., (1946) 22 IMT 203. 13 ILR 203, 41 American Journal of International
Law 172.
76 See the numerous references to the reasonable doubt standard in, for example, Prosecutor v.
Tadic (Case No. IT-94-1-T), Opinion and Judgment, 7 May 1997; Prosecutor v. Akayesu (Case
No. ICTR-96-4-T), Judgment, 2 September 1998; Prosecutor v. Delalic et al. (Case No. IT-96-21-
T), Judgment, 16 November 1998.