Editing International Criminal Court (section)

==Procedure==
===Trial===
Trials are conducted under a hybrid [[common law]] and [[Civil law (legal system)|civil law]] judicial system, but it has been argued the procedural orientation and character of the court is still evolving.{{sfn|Schabas|2011|p=302}}<ref>{{Cite book |last1=Calvo-Goller |first1=Notburga K. |title=The trial proceedings of the international criminal court: ICTY and ICTR precedents |last2=Calvo-Goller |first2=Karin N. |date=2006 |publisher=Nijhoff |isbn=978-90-04-14931-1 |location=Leiden}}</ref> A majority of the three judges present, as [[trier of fact|triers of fact]] in a [[bench trial]], may reach a decision, which must include a full and reasoned statement.{{sfn|Schabas|2011|p=322}} Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail.{{sfn|Schabas|2011|pp=303–304}} ''[[In camera]]'' proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence.{{sfn|Schabas|2011|p=304}} [[Hearsay]] and other indirect evidence is not generally prohibited, but it has been argued the court is guided by hearsay exceptions which are prominent in common law systems.{{sfn|Schabas|2011|p=312}} There is no [[subpoena]] or other means to compel witnesses to come before the court, although the court has some power to compel testimony of those who chose to come before it, such as fines.{{sfn|Schabas|2011|p=316}}

===Rights of the accused===
The Rome Statute provides that all persons are [[Presumption of innocence|presumed innocent until proven guilty]] beyond [[Legal burden of proof|reasonable doubt]],<ref name="RomeStatute" />{{rp|article 66}} and establishes certain rights of the accused and persons during investigations.{{efn|The rights of persons during an investigation are provided in Article 55. Rights of the accused are provided in Part 6, especially Article 67.}}<ref>{{cite web |author=Amnesty International |date=1 August 2000 |url=https://www.amnesty.org/en/library/info/IOR40/009/2000 |title=The International Criminal Court: Fact sheet 9 – Fair trial guarantees |archive-url=https://web.archive.org/web/20140707054210/http://www.amnesty.org/en/library/info/IOR40/009/2000 |archive-date=7 July 2014 |access-date=20 March 2008}}</ref> These include the right to be fully informed of the charges against them; the right to have a lawyer appointed, free of charge; the right to a [[speedy trial]]; and the right to examine the witnesses against them.

To ensure "equality of arms" between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel.<ref>{{cite web |last=Glassborow |first=Katy |date=21 August 2006 |title=Defending the Defenders |url=http://www.globalpolicy.org/intljustice/general/2006/0821defenders.htm |url-status=live |archive-url=https://web.archive.org/web/20070509025812/http://www.globalpolicy.org/intljustice/general/2006/0821defenders.htm |archive-date=9 May 2007 |access-date=3 May 2007 |publisher=[[Global Policy Forum]]}}</ref><ref>{{cite web |title=Rights of the Defence |url=http://www.icc-cpi.int/defence/defaccused.html |archive-url=https://web.archive.org/web/20070422074334/http://www.icc-cpi.int/defence/defaccused.html |archive-date=22 April 2007 |access-date=3 May 2007 |publisher=International Criminal Court}}</ref> The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation.<ref>{{cite web |author=International Criminal Court |url=http://www.derechos.org/nizkor/icc/iccreport.html |title=Report of the International Criminal Court for 2004 |date=1 August 2005 |archive-url=https://web.archive.org/web/20070927223337/http://www.derechos.org/nizkor/icc/iccreport.html |archive-date=27 September 2007}}</ref> Thomas Lubanga's defence team said they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to arrive.<ref name="cfr">{{Cite web |first=Stephanie |last=Hanson |date=17 November 2006 |url=http://www.cfr.org/publication/12048/ |title=Africa and the International Criminal Court |archive-url=https://web.archive.org/web/20080226010634/http://www.cfr.org/publication/12048/ |archive-date=26 February 2008 |publisher=[[Council on Foreign Relations]] |access-date=23 November 2006}}</ref>

===Victim participation===
One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims.<ref>{{cite web |author=International Criminal Court |url=http://www.icc-cpi.int/victimsissues.html |title=Victims and witnesses |archive-url=https://web.archive.org/web/20070702033823/http://www.icc-cpi.int/victimsissues.html |archive-date=2 July 2007 |access-date=22 June 2007}}</ref><ref>{{cite journal |author=Ilaria Bottigliero |date=April 2003 |url=http://www.sgiquarterly.org/english/Features/quarterly/0304/perspective.htm |title=The International Criminal Court&nbsp;– Hope for the Victims |archive-url=https://web.archive.org/web/20070928031441/http://www.sgiquarterly.org/english/Features/quarterly/0304/perspective.htm |archive-date=28 September 2007 |issue=32 |journal=[[SGI Quarterly]] |pages=13–15}}</ref> For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.

Participation before the Court may occur at various stages of proceedings and may take different forms, although it will be up to the judges to give directions as to the timing and manner of participation.

Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted "in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial".

The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is the aim of this attempted balance between [[Retributive justice|retributive]] and [[restorative justice]] that, it is hoped, will enable the ICC to not only bring criminals to justice but also help the victims themselves obtain some form of justice. Justice for victims before the ICC comprises both procedural and substantive justice, by allowing them to participate and present their views and interests, so that they can help to shape truth, justice and reparations outcomes of the Court.<ref>
{{Cite web |last=Moffett |first=Luke |url=http://www.internationalcrimesdatabase.org/upload/documents/20140916T170017-ICD%20Brief%20-%20Moffett.pdf |title=Realising Justice for Victims before the International Criminal Court |archive-url=https://web.archive.org/web/20150927120303/http://www.internationalcrimesdatabase.org/upload/documents/20140916T170017-ICD%20Brief%20-%20Moffett.pdf |archive-date=27 September 2015 |url-status=live |df=dmy-all}}</ref>

Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."<ref name="RomeStatute" />{{rp|article 43(6)}} Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings."<ref name="RomeStatute" />{{rp|article 68}} The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.<ref name="2006report">International Criminal Court, 17 October 2006. {{PDFWayback |date=20080216043708 |url=http://www.icc-cpi.int/library/asp/ICC-ASP-5-15_English.pdf |title=Report on the activities of the Court|size=151&nbsp;KB}}. Retrieved 18 June 2007.</ref>

=== Reparations ===
Victims before the International Criminal Court can also claim reparations under Article 75 of the Rome Statute. Reparations can only be claimed when a defendant is convicted and at the discretion of the Court's judges.<ref>
{{Cite book|title = Justice for Victims Before the International Criminal Court|url = https://books.google.com/books?id=eefpAwAAQBAJ|publisher = Routledge|date = 27 June 2014|isbn = 9781317910824|first = Luke|last = Moffett|access-date = 26 September 2015|archive-url = https://web.archive.org/web/20160429194538/https://books.google.com/books?id=eefpAwAAQBAJ|archive-date = 29 April 2016|url-status = live|df = dmy-all}}
</ref> So far{{When|date=May 2024}} the Court has ordered reparations against [[Thomas Lubanga]].<ref>
{{Cite web|url =http://www.icc-cpi.int/iccdocs/doc/doc1447971.pdf|title =Decision establishing the principles and procedures to be applied to reparations|archive-url =https://web.archive.org/web/20131207174302/http://www.icc-cpi.int/iccdocs/doc/doc1447971.pdf|archive-date =7 December 2013|url-status =live|df =dmy-all}}
</ref> Reparations can include compensation, restitution and rehabilitation, but other forms of reparations may be appropriate for individual, collective or community victims. Article 79 of the Rome Statute establishes a Trust Fund to provide assistance before a reparation order to victims in a situation or to support [[Reparation (legal)|reparations]] to victims and their families if the convicted person has no money.<ref>{{cite web |author=International Criminal Court |url=http://www.icc-cpi.int/vtf.html |title=Fonds d'affectation spéciale au profit des victimes |language=fr |trans-title=Trust Fund for Victims |archive-url=https://web.archive.org/web/20080119095812/http://www.icc-cpi.int/vtf.html |archive-date=19 January 2008 |access-date=22 June 2007}}</ref>

===Cooperation by states not party to Rome Statute===
One of the principles of international law is that a treaty does not create either obligations or rights for third states without their consent, and this is also enshrined in the 1969 [[Vienna Convention on the Law of Treaties]].<ref>{{cite web |title=Article 34 |work=[[Vienna Convention on the Law of Treaties]] |year=1969 |publisher=United Nations |url=http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf |access-date=30 October 2011 |archive-url=https://web.archive.org/web/20131017052135/http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf |archive-date=17 October 2013 }}</ref> The cooperation of the non-party states with the ICC is envisioned by the [[Rome Statute]] of the International Criminal Court to be of voluntary nature.<ref name="RomeStatute" />{{rp|article 87 (5)(a)}} States not acceded to the Rome Statute might still be subject to an obligation to cooperate with ICC in certain cases.<ref name="zhu">
{{cite journal |last=Zhu |first=Wenqi |title=On Co-Operation by States Not Party to the International Criminal Court |journal=[[International Review of the Red Cross]] |issue=861 |pages=87–110 |year=2006 |publisher=[[International Committee of the Red Cross]] |url=http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-861-p87/$File/irrc_861_Wenqi.pdf |access-date=30 October 2008 |archive-url=https://web.archive.org/web/20081122050413/http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-861-p87/$File/irrc_861_Wenqi.pdf |archive-date=22 November 2008 |url-status=live}}</ref> When a case is referred to the ICC by the UN [[Security Council]] all UN member states are obliged to cooperate, since its decisions are binding for all of them.<ref>{{cite web |url=https://www.un.org/en/about-us/un-charter |title=UN Charter |date=26 June 1945}} Article 25.</ref> Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the [[Geneva Conventions]] and [[Additional Protocol I]],<ref>{{cite web |url=http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079 |title=Additional Protocol I |archive-url=https://web.archive.org/web/20081210124556/http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079 |archive-date=10 December 2008 |date=8 June 1977}}  Article 89.</ref> which reflects the absolute nature of [[international humanitarian law]].<ref>''Military and Paramilitary Activities in and against Nicaragua ([[Nicaragua v. United States|Nicaragua v. the United States]] of America)'', Merits, Judgment, ICJ Reports 1986, p. 114, para. 220.</ref>

In relation to cooperation in investigation and evidence gathering, it is implied from the Rome Statute<ref name="RomeStatute" />{{rp|article 99}} that the consent of a non-party state is a prerequisite for [[#Office of the Prosecutor|ICC Prosecutor]] to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute.<ref name=zhu/> Taking into account the experience of the [[International Criminal Tribunal for the former Yugoslavia]] (which worked with the principle of the primacy, instead of [[#Complementarity|complementarity]]) in relation to cooperation, some scholars have expressed their pessimism as to the possibility of ICC to obtain cooperation of non-party states.<ref name=zhu/> As for the actions that ICC can take toward non-party states that do not cooperate, the Rome Statute stipulates that the Court may inform the [[Assembly of States Parties]] or Security Council, when the matter was referred by it, when non-party state refuses to cooperate after it has entered into an ''ad hoc'' arrangement or an agreement with the Court.<ref name="RomeStatute" />{{rp|article 87(5)}}

===Amnesty and national reconciliation processes===
It is unclear to what extent the ICC is compatible with reconciliation processes that grant [[amnesty]] to human rights abusers as part of agreements to end conflict.<ref name="dworkin">
Anthony Dworkin (December 2003). [http://www.crimesofwar.org/icc_magazine/icc-intro.html "Introduction"] {{Webarchive|url=https://web.archive.org/web/20070916165219/http://www.crimesofwar.org/icc_magazine/icc-intro.html |date=16 September 2007 }} in ''The International Criminal Court: An End to Impunity?''  Crimes of War Project. Retrieved 18 September 2007.
</ref> Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,<ref name="RomeStatute" />{{rp|article 16}} and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that "an investigation would not serve the interests of justice".<ref name="RomeStatute" />{{rp|article 53}} Former ICC president [[Philippe Kirsch]] has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the Statute.<ref name=dworkin/>

It is sometimes argued that amnesties are necessary to allow the [[peaceful transition of power|peaceful transfer of power]] from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the [[Lord's Resistance Army]] are regarded by some as an obstacle to ending the insurgency in Uganda.<ref>{{cite news |url=http://africa.reuters.com/top/news/usnBAN056745.html |title=Uganda Urges Traditional Justice for Rebel Crimes |author=Tim Cocks |date=30 May 2007 |archive-url=https://web.archive.org/web/20080221135043/http://africa.reuters.com/top/news/usnBAN056745.html |archive-date=21 February 2008 |work=[[Reuters]]}}</ref><ref>{{cite news |author=Alasdair Palmer |date=14 January 2007 |url=https://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2007/01/14/do1409.xml |title=When Victims Want Peace, Not Justice |archive-url=https://web.archive.org/web/20080219151919/http://www.telegraph.co.uk/opinion/main.jhtml?xml=%2Fopinion%2F2007%2F01%2F14%2Fdo1409.xml |archive-date=19 February 2008 |newspaper=[[The Sunday Telegraph]]}}</ref> Czech politician Marek Benda argues that "the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs".<ref>
{{cite news |author=Alena Skodova |date=12 April 2002 |url=http://www.radio.cz/en/article/26826 |title=Czech Parliament Against Ratifying International Criminal Court |archive-url=https://web.archive.org/web/20080220071329/http://www.radio.cz/en/article/26826 |archive-date=20 February 2008 |publisher=[[Radio Prague]] |access-date=11 January 2007}}</ref> The United Nations<ref>
See, for example, {{cite web |author=Kofi Annan|author-link=Kofi Annan |date=4 October 2000 |url=http://www.afrol.com/Countries/Sierra_Leone/documents/un_sil_court_041000.htm |title=Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone |archive-url=https://web.archive.org/web/20060525023709/http://www.afrol.com/Countries/Sierra_Leone/documents/un_sil_court_041000.htm |archive-date=25 May 2006 |access-date=31 December 2006}} Paragraph 22.</ref> and the [[International Committee of the Red Cross]]<ref>{{cite book |author1=Jean-Marie Henckaerts |author2=Louise Doswald-Beck |year=2005 |title=Customary International Humanitarian Law, Volume I: Rules |pages=613–614 |location=Cambridge |publisher=[[Cambridge University Press]] |isbn=978-0-521-80899-6}}</ref> maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.