Human Rights

Group Assignment No. 5

December 8, 2020

Members:
Cadorna, Frank Lloyd C.
Elumba, Michael Jameson
Labuga, Aljay
Matias, Jean
Osorio, Xal
Peras, Bernadette
Romarate, Maria Ignacia

The steps in the prosecution of a crime that falls within the jurisdiction of the ICC are the
conduct of preliminary examination and investigation by the Prosecution; Pre-Trial by the Pre-
Trial Chamber; the Trial and the imposition of judgment and penalties by the Trial Chamber;
Appeals, if any, to be entertained by the Appeal Chamber; and the execution of the judgment by
the State Party designated by the ICC.

Preliminary Examination

For crimes (genocide, crimes against humanity, war crimes, and crime of aggression)
falling under the jurisdiction of the International Criminal Court, any State Party or State not
party, or the United Nations Security Council can request or refer the case to the Office of the
Prosecutor for investigation. Also, the Office Prosecutor, on its own initiative, upon receipt of
reliable information, may open an investigation. However, the Prosecution must secure
permission from the Pre-Trial Chamber judges prior before initiating the investigation.

Prior to the investigation proper, the Prosecutor needs to determine whether the Court has
jurisdiction over the alleged crimes, whether there is a reasonable basis to proceed with an
investigation, and if the crimes were committed after July 1, 2002. Furthermore, it must
determine whether the national authorities are also conducting their own investigation or trial. If
the requisites are met, then the Prosecutor must notify the State Party of its intention to initiate an
investigation.

Investigation

During the investigation state, the Prosecution collects evidence with the assistance of
States and international organizations. It is not necessary that all persons suspected of
committing the crimes will be prosecuted as it is enough that the investigation or prosecution to
focus on those who bear the greatest responsibility for the commission of such crimes. However,
the ICC does not intend to replace the national criminal system as it is intended to complement
such. Therefore, the ICC only prosecutes cases only when State do not or are unwilling or unable
to do so genuinely.

After gathering evidence and the identifying a suspect, the Prosecutor may request the
Pre-Trial Chamber to issue a warrant of arrest or summons to appear. Only the Pre-Trial
Chamber has the power to issue an arrest warrant or summons to appear. The Chamber will issue
such if there are reasonable grounds to believe that the person concerned has committed a crime
within the ICC’s jurisdiction. Since the ICC does not have its own police force, it would need to
rely with the country to make arrests and transfer the suspects to the ICC, or for the suspect to
appear voluntarily when summoned. Thereafter, the suspect is delivered to the Court, and will be
held at the Detention Center in The Hague, Netherlands.

Pre-Trial Stage

In the pre-trial stage, the three judges of the Pre-Trial Chamber confirm the suspect’s
identity and ensure that the suspect understands the charges brought against him and sets a date
to begin the confirmation of charges hearing. The Prosecution must present sufficient evidence
during the confirmation of charges hearing for the case to go to trial. The suspect may negate the
charges, challenge the evidence, and present his own evidence.

After the hearing, usually within 60 days, the Pre-Trial Chamber may either decline to
confirm the charges, adjourn the hearing, and request the Prosecution to provide additional
evidence or amend the charges to show a different crime, or confirm the charges and commit the
case for trial. The confirmation of charges is not a judgment of the suspect’s guilt. It is just a
stage of determination to ensure that there is sufficient legal basis to continue with the trial.

Trial Stage

The trial is conducted by the Trial Chamber at the seat of the Court in The Hague unless
the judges decide for a different venue. The accused must be present at his trial. It will be held in
public except if a closed session is required to ensure the safety of the victims and witnesses or
the confidentiality of sensitive evidentiary material.

At the start of the trial, the charges are read to the accused and he will be asked if he
understands them. Subsequently, the Chamber will then ask the accused to make an admission of
guilty or to plead not guilty. If the accused admits his guilt, the Chamber must ensure that he
fully understands the nature and consequences of his admission, and that it was voluntarily made,
and that it is supported by the facts of the case that are contained in the evidence. If the Chamber
is not satisfied that these conditions are met, the Chamber shall not consider the admission of
guilt, and it will order the trial to be continued.

At the trial, the Prosecution and the Defense are given the opportunity to present their
case. The Prosecution presents its case first, and it has the burden to prove the accused’s guilt
beyond all reasonable doubt based on the evidence to be presented. Evidence may be in the form
of documents, objects, or statements of the witnesses. The Defense is also given the opportunity
to examine the witnesses of the Prosecution. The accused will also present all his evidence to
present his defense, with the assistance of his counsel, after the Prosecution has presented all its
evidence. Furthermore, the victims may also be allowed by the Court to present their views and
opinions when their personal interests are affected.

After the hearing of the closing statements of the Prosecution and the Defense and
considering the evidence, the Chamber will decide whether the accused is guilty or not guilty,
and the corresponding penalty to be imposed, either imprisonment for a maximum sentence of 30
years, or life imprisonment for extreme cases. A fine or forfeiture of the proceeds derived from
the crime committed may also be added as penalty. In no case can the Court impose death
sentence. The sentence is pronounced in public, and in the presence of the accused, wherever
possible, and victims or their legal representatives, if they have taken part in the proceedings.

Appeals Stage

The Appeal Chamber is composed of 5 judges, who are not the same with the judges in
the Trial Chamber who rendered the decision of conviction or acquittal. It may reverse or amend
the decision or conviction or order a new trial before a different trial chamber.

Either the Prosecution, convicted person, or the victims may appeal the decisions of a
Pre-Trial or Trial Chamber. The Prosecution may appeal on the grounds of procedural error,
error of fact, or error of law. Both the Prosecution and the convicted person may also appeal on
other ground that affects the fairness or reliability of the proceedings and the decision. For the
victims, they may appeal the decision regarding the order for reparations. Pending the appeal, a
convicted person remains in custody, except if the decision appealed was for acquittal, which in
such case, the accused is released immediately unless there are exceptional circumstances.

A final judgment of conviction may also be appealed for revision by the convicted person
or the Prosecution if new and important evidence has been discovered, it has been discovered
that a decisive evidence considered during trial upon which the conviction depends was false,
forged or falsified, or one or more of the judges committed an act of serious misconduct of
serious breach of duty.

Enforcement of Sentence

The sentence is served in the prison of a State designated by the Court from a list of
States which are willing to accept convicted persons. The conditions of imprisonment are
governed by the laws of the State of enforcement and must be consistent with international treaty
standards. However, the conditions may not be more or less favorable than those available to
prisoners convicted of similar offenses in the local state.