WOMEN'S CAUCUS FOR GENDER JUSTICE IN THE INTERNATIONAL CRIMINAL COURT

Transcription

1 WOMEN'S CAUCUS FOR GENDER JUSTICE IN THE INTERNATIONAL CRIMINAL COURT Recommendations and Commentary For August 1997 PrepCom On The Establishment Of An International Criminal Court United Nations Headquarters August 4-15, l997 Introduction 3 Part I Ensuring the Independence of the Court 1. Inherent JurisdictionArticle 21, Trigger Mechanisms Article 23, Complementarity Article 35, 42, 53 9 Part II Procedural Matters 1. Investigation of Alleged Crimes - Article 26 Simplified Amendment 14 Recommendations and Commentary Commencement of Prosecution - Article Pre-indictment Arrest - Article Pre-trial detention or release - Article 29 25

2 5. Functions and Powers of the Trial Chamber - Article Protection of Victims and Witnesses - Article Simplified Recommendations Regarding Victims & Witnesses 34 The Commission on Human Rights, Reaffirming that discrimination on the basis of sex is contrary to the Charter of the United Nations, the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women and other international instruments, and that its elimination is an integral part of efforts towards the elimination of violence against women,... Welcoming the adoption by the General Assembly, in its resolution 48/104 of 20 December 1993, of the Declaration on the Elimination of Violence against Women, which recognizes that violence against women both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms, and expresses concern about the long-standing failure to protect and promote these rights and freedoms in relation to violence against women,... Bearing in mind that the Vienna Declaration and Programme of Action calls for action to integrate the equal status and human rights of women into the mainstream of the United Nations systemwide activity, stresses the importance of working toward the elimination of violence against women in public and private life, and urges eradication of all forms of discrimination against women, Encourages those States participating in the drafting of the statute of the International Criminal Court to give full consideration to integrating a gender perspective... --Commission on Human Rights Resolution

3 1997/44 Introduction The Women's Caucus for Gender Justice in the International Criminal Court builds upon the work of the Women's Caucus at the World Conference on Human Rights in Vienna and at subsequent international conferences as well as of women's human rights NGOs and experts working in many contexts throughout the world. The Women's Caucus reflects the pressing concern of women to strengthen accountability for war crimes, crimes against humanity and genocide through the creation of a permanent International Criminal Court. Women are very frequently the targets and victims of these egregious crimes. To fulfill its mission and the promise of the Universal Declaration of Human Rights and the 1993 World Conference on Human Rights in Vienna, this Court must be both independent and accessible to victims and survivors and must ensure justice to women through integration of a gender perspective in all its aspects. The Women's Caucus is represented at this Preparatory Committee meeting by women experts working with NGOs in the different regions of the world. Our proposals reflect widely held principles and have been formulated by those attending this Preparatory Committee meeting. The recommendations reflect a consensus of the participants. On occasion, some members, or the NGOs of which they are a part, may differ wth respect to particular proposals. Our initial Recommendations and Commentary are divided into two parts: Part I addresses the issues of inherent jurisdiction, trigger mechanisms and complementarity which will be considered by Working Group I; and Part II is directed to Working Group II's consideration of Procedural Matters. We have organized this document as follows: The ILC draft statute is the starting point taking into account specified alternative proposals by State delegations. With respect to the Women's Caucus' suggested text, the unbolded text reiterates the language of the ILC draft; recommended deletions are bracketed; additions or substituted texts are in bold type; and elipses (...) indicate text for which no amendment is recommended. The suggested text is then followed by a brief explanatory commentary.

4 The Women's Caucus will supplement these recommendations as appropriate as the negotiations enfold. We hope this approach will prove useful and we welcome your inquiries. The Women's Caucus maintains an office on the 12th Floor at 777 UN Plaza. Our contact numbers are: tel ; fax ; Part I: ENSURING THE INDEPENDENCE OF THE COURT. The independence of the Court is critical to its effectiveness and credibility as an instrument of justice. This requires both that the Court be able to investigate, prosecute and adjudicate cases independently of State's Parties and the Security Council and that access to the Court be guaranteed to all those seeking to hold accountable the perpetrators of serious international crimes within the Court's jurisdiction. 1. Inherent Jurisdiction. War crimes and crimes against humanity, like genocide, are all crimes of universal jurisdiction as to which the ICC, like the ICTY and the ICTR,/1/ should have inherent jurisdiction. Ratification of the ICC treaty should, therefore, import acceptance of the jurisdiction of the Court with respect to these core crimes. Article 21/2/ Preconditions to the exercise of jurisdiction Recommendation: Amend Article 21 to make clear that the jurisdiction of the Court is inherent or delete as redundant. Suggested Text: The Court may exercise its inherent jurisdiction over a person with respect to a crime referred to in article 20 if [delete: (a) in a case of genocide] a complaint is brought under article 25.

5 [delete: the remainder of this article] or delete the entire article or substitute article 25 as suggested in the first proposal for replacing article 21./3/ Commentary: The requirement in draft Article 21 that specified states must consent to the power of the ICC to exercise jurisdiction in cases of war crimes and crimes against humanity should be eliminated. To require specific acceptance of the ICC's jurisdiction over these crimes by potentially three states (the custodial state, the territorial state and the extraditing state) is inconsistent with the international legal principle of universality as well as with the need to ensure that the ICC will be an independent and effective instrument of international justice. As a practical matter, the crime of genocide is not necessarily more grave nor clearly separable in fact from war crimes and crimes against humanity. Moreover, if article 21 is retained, potential indictees could evade justice by fleeing to a non-accepting state and objecting states would be able to tie up the process of justice or obstruct the processing of complaints by states as well as others authorized under article 25. In addition, the principle of complementarity is preserved by the determination regarding availability of an effective national remedy under article 35. For the same reasons, the PrepCom should also consider deleting the remaining portion of sec. 1 and merging it, as suggested below under "Trigger Mechanisms" with articles 23(1) and 25, since the changes proposed render it redundant of article 20 which states the substantive jurisdiction of the ICC; article B a 1 stating the personal jurisdiction of the Court and articles 23(1) and 25 which identify the trigger mechanisms. Article 22/4/ Acceptance of the jurisdiction of the Court for the purposes of article 21 Recommendation: Delete this article. Commentary: Given the principle of inherent jurisdiction over offenses as to which there is universal jurisdiction under international law, ratification of the treaty is the expression of consent. Permitting selective acceptance in the statute not

6 only undermines the principle of universality under international law but also the efficacy of the Court. The treaty provisions regarding ratification are the place to deal with questions of withdrawing ratification or of the effect of ratification after a complaint is filed or nunc pro tunc. 2. Trigger Mechanisms The decision on how an investigation is triggered is one of the most critical to the independence and integrity of the ICC. Articles 23(1) and 25 of the ILC draft, however, authorize only States who have accepted the particular crime at issue or the Security Council to initiate an investigation by the Prosecutor. Moreover, draft article 23(3) gives the Security Council the power to stop a prosecution contrary to the independent judgment of the Prosecutor and Court. The Women's Caucus urges that an independent ICC requires that non-governmental entities and individuals must also be enabled to file information and complaints as well as that the Prosecutor be authorized to initiate an investigation ex officio. Article 23/5/ Action by the Security Council & Article 25/6/ Complaint Recommendation: Consolidate articles 23(1) and 25 and amend to permit complaints by NGOs and others and recognize the independent authority of the Prosecutor to initiate investigation. Suggested Text: 1./7/ The Court may exercise its jurisdiction over a person with respect to a crime referred to in article 20 in accordance with the provisions of this Statute if: (a) the matter is referred to the Court by the Security Council acting under Chapter VII of the Charter of the United Nations;/8/ (b)/9/ a complaint alleging that a crime appears to

7 have been committed is lodged by any State who has ratified the ICC treaty; (c) a complaint alleging that a crime appears to have been committed is lodged by a non-governmental organization or by the victims or interested individuals; or (d) the Prosecutor initiates an investigation ex officio or on the basis of information from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations, victims and interested individuals. 2. /10/ As far as possible, a complaint shall specify the circumstances of the alleged crime and the identity and whereabouts of any suspect, and be accompanied by such supporting documentation as is available to the complainant. Commentary: A fundamental premise of human rights and humanitarian law, particularly as they have evolved under the UN Charter, is that individuals are the subjects of human rights protections. As a result, individuals, and those acting on their behalf, have increasingly been recognized in the human rights system as having the right to seek redress on their own behalf. Draft article 25 restricting non-governmental access to the ICC reflects a throwback to the time when individuals were understood only as subjects of their states and their right to vindication depended entirely on the will of their state to seek redress from another state. Practically, this limitation on access would unjustifiably limit the capacity of the Prosecutor to investigate core crimes, particularly when they are committed by states against their own citizens or, in time of war, for example, where resolution of the conflict might otherwise be exchanged for impunity. The ICC Treaty must also recognize the need to vest authority to initiate proceedings ex officio in an independent Prosecutor. The limitations on the power of the Prosecutor to initiate a prosecution contained in draft articles 23 and 25 would leave the Court continually open to the charge of political selectivity since States acting alone or as members of the Security Council will inevitably be affected by a range of political and economic considerations. The language of sec. 1(d) is found in ICTY, art. 18(1) and ICTR Art. 17(1) to which we have added "victims and interested individuals." This is an essential protection the

8 independence of the Prosecutor, a principle that is fundamental to justice and incorporated in many state systems, both civil and common law. The need to ensure that non-governmental groups and affected individuals can trigger an investigation is of particular urgency in regard to the sexual and gender-based crimes within the ICC's jurisdiction. At the Vienna Conference on Human Rights and in many subsequent actions, the international community has acknowledged its historic failure to redress these crimes and has committed itself to the integration of gender in the human rights system. Notwithstanding these commitments, the terrible gravity of this violence and the frequency of its occurrence, sexual and gender violence still tends to be invisible or to be treated as insignificant or, at best, of secondary importance. If the representatives of survivors are not empowered to file complaints and/or the power of the Prosecutor is controlled by States or the Security Council, as the present draft proposes, it is likely that the ICC will utterly fail to fulfill the principle of Vienna as well as the commitments in the February PrepCom--to incorporate crimes of sexual and gender violence within its jurisdiction. While considerable progress has been made in this regard by the ICTY, the continued monitoring and cooperation of women's human rights NGOs has been indispensable. Our proposal differs from the first proposal in Volume II for replacing article 21 for 25 in several respects. Most importantly, it not only recognizes in sec. 1(d) the independent authority of the Prosecutor to initiate an investigation; sec. 1(c) also places complaints submitted by inter-governmental and non-governmental entities and individuals on the same footing as those by states or matters referred by the Security Council in terms of triggering the discretion of the Prosecutor to investigate under Article 26. This encourages the careful preparation of complaints by victims and non-governmental groups and ensures that they will receive basic consideration and be responded to by the Prosecutor consistent with the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. At the same time, it is important to note that the filing of complaints--by any party does not commit the Prosecutor to conduct an investigation; rather under article 26, the Prosecutor must simply determine whether the complaint states an adequate basis for investigation. Finally, Sec. 1(b) limits state's complaints to those states which have ratified the treaty. It does not seem appropriate to allow states to invoke the jurisdiction of the Court unless they

9 have ratified, or, upon filing the complaint, ratify the treaty. Further criteria of state consent or interest are not appropriate since all states have an obligation to ensure the prosecution of crimes of universal jurisdiction. Recommendation: Delete article 23(3) to eliminate the power of the Security Council to block consideration of the core crimes. Commentary: Draft article 23(3) would permit the Security Council to prohibit the Prosecutor from considering a complaint or initiating an investigation of crimes against humanity, genocide or war crimes if those crimes "aris[e] from a situation which is being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII..." (emphasis supplied). This goes far beyond the jurisdiction of the Security Council over the crime of aggression; it would immunize perpetrators of crimes within the Court's jurisdiction simply because they occur in the context, for example, of aggression. It would permit the Security Council to pick and choose who should be indicted in a particular situation. It would also encourage the idea that impunity is negotiable in the settling of such conflicts and severely undermine the deterrent function of the Court. The importance of preserving the independence of the Prosecutor in this regard is illustrated by the crucial role that the ICTY indictments against Karadzic and Meakic played in rejecting demands for amnesty in the negotiation of the Dayton Accords. The recognition that there can be no peace without justice is a basic premise motivating the creation of the ICC. /11/ 3. Complementarity The ICC Statute should recognize that States have the primary responsibility to investigate and prosecute the universal crimes within the jurisdiction of the ICC,/12/ at the same time as the Court must be empowered to investigate and prosecute where States have or are likely to be unwilling or unable to do so, and to resist interference by States designed to defeat the legitimate exercise of international jurisdiction. Article 35/13/ Issues of Admissibility Recommendation: Amend article 35 to limit the number and identity of States who can challenge the jurisdiction of the

10 Court and clarify the bases of admissibility. Suggested Text: The Court may, on application by the accused or at the request of [delete: an interested] the State which has custody or the accused, the State upon whose territory the alleged crime was committed, or the State of the nationality of the accused, at any time prior to the commencement of the trial, or of its own motion, decide, having regard to the purposes of this Statute set out in the preamble that a case before it is inadmissible on the ground that the crime in question: (b) is under investigation or being prosecuted by a State which has or may have jurisdiction over it, and there is no reason for the Court to take any further action for the time being with respect to the crime based on the kind of concerns articulated in article 42. merge article 42(2) insofar as it states standards of ineffectiveness and inadmissibility into this article and add "where a state declares its inability to prosecute." or Commentary: The revision to the chapeau is designed to permit only legitimately interested parties to contest admissibility in order to prevent delay and obstruction by other states. It is also important to limit the time period during which challenges on admissibility may be brought to the period prior to commencement of trials. The revision to subsec. (b) is designed to require the Court both to defer to pending state investigations and prosecutions, and to apply the criteria for deferral consistent with the principle of complementarity. The current language is too vague. An alternative approach would be to incorporate and supplement the pertinent criteria of article 42(2) into article 35. Article 42/14/ Non bis in idem Recommendation: Amend article 42 (2) to clarify the bases of admissibility and permissible retrial.

11 Suggested text: 2. A person who has been tried by another court for acts constituting a crime of the kind referred to in article 20 may be tried under this Statute only if: (a) the acts in question were not characterized by that court [delete: as an ordinary crime and not] as a crime which is within the jurisdiction of the Court; or (b) the proceedings in the other court were not impartial or independent, or were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted or the punishment was not commensurate with the gravity of the crime committed or other like considerations." Commentary: The revision to subsection (a) is designed to clarify the standard. The revision to subsection (b) supplements the current section to ensure that all situations which undermine the international rule of law are excepted from the principle of deferral to State authority. This formulation of the principle of complementarity is particularly significant for victims of sexual and gender violence in situations where local authorities seek to shield the perpetrators from responsibility or local law still fails to reflect the seriousness of these crimes or where the legal criteria, procedures, and evidentiary rules for adjudicating guilt are tainted by sex-discrimination and prejudice against the victim or inconsistent with the rules adopted by the Court designed to avoid this prejudice and guarantee an impartial trial. Thus, for example, the Court should find a case of rape admissible where a State prosecution required showing the victim's "honesty" (i.e. chastity) or the corroboration of her or his testimony, or permitted the introduction of irrelevant, inflammatory evidence or the punishment was trivial. Article 53/15/ Transfer of an accused to the Court

12 Recommendation: Retain ILC draft article 53(4) to assure the priority of the Court in extradition proceedings. Commentary: Article 53(4) requires States parties to give priority to a request by the ICC for arrest and transfer of an accused over a request by another State for extradition. This provision should not be deleted, as some of the proposals seek, based on concerns related to state sovereignty. To the contrary, the provision is essential to guard against obstruction by States to the working of the Court, and state sovereignty is otherwise well protected by the principle of complementarity in the Statute. WOMEN'S CAUCUS FOR GENDER JUSTICE IN THE INTERNATIONAL CRIMINAL COURT Recommendations and Commentary For August 1997 PrepCom On The Establishment Of An International Criminal Court United Nations Headquarters August 4-15, l997 Part II Procedural Matters

13 Women's Caucus for Gender Justice in the International Criminal Court Simplified Amendment to Article 26 In order to ensure the effective prosecution of crimes of sexual and gender violence, the powers and responsibilities of the Prosecutor should be amended to include a statement of the responsibility of the Prosecutor in this regard. Suggested amendment to article 26(2)(d) in bold: 2. The Prosecutor may:... (d) take necessary measures to ensure the confidentiality of information and the protection of any person and implement policies and procedures to ensure the effective prosecution of crimes of sexual and gender violence. Commentary: As decided at the February PrepCom, the Court will have jurisdiction under article 20 to prosecute crimes of sexual and gender violence which constitute genocide, war crimes and crimes against humanity. To do that effectively, requires that the Prosecutor adopt special mechanisms, policies and procedures to ensure, for example, that the legal and factual dimensions of these crimes are fully understood and that methods of investigation protect and are responsive to the needs of victims and witnesses. The failure to implement such measures in the ICTR has resulted in a complete failure to prosecute rape even though it is one of the most frequently committed crimes within its jurisdiction. By contrast, attention to developing legal theory, investigative procedures, training of the staff, and access by NGOs has been advanced through the presence of a legal advisor on gender in the Hague office has resulted in a number of indictments for rape and

14 other sexual violence. Recognizing that the PrepCom seeks to avoid including too much detail in the Statute, the Women's Caucus believes that the above amendment is the minimal necessary to make sure that this issue is given the necessary attention by the Prosecutor and in the pertinent rules to be developed by the Court. Women's Caucus for Gender Justice in the International Criminal Court RECOMMENDATIONS & COMMENTARY Article 26 Investigation of alleged crimes Recommendation: Amend article 26 by adding a new paragraph stating the duty of the Prosecutor to ensure the proper investigation of crimes of sexual and gender violence. Suggested text: 2 bis. The Prosecutor shall take appropriate measures to ensure the full and effective investigation of gender crimes, including the appointment of a Legal Advisor on Gender Crimes/16/ and the implementation of policies and practices which are responsive to the needs of victims of sexual and gender violence. Commentary: Crimes of sexual violence are simultaneously among the most frequent and least prosecuted aspects of genocide, war crimes and crimes against humanity. At the Vienna Conference on Human Rights and, subsequently, in the UN Declaration on the Elimination of Violence Against Women, the international community recognized gender violence as a grave violation of human rights and committed itself to take concrete steps at every level to ensure both that perpetrators are brought to justice and that victims have the necessary protection. The

15 Prosecutor's approach to the investigation and prosecution of sexual violence is the sina qua non of international accountability for these crimes as well as a model for national systems. Experience in the ICTFY and the ICTR as well as in various State criminal justice sytems has demonstrated that sexual and gender violence present unique problems. Reluctance to prosecute may stem from misunderstanding the nature of the offense, misapplication of legal criteria, or lack of training in appropriate methods of investigation. The inability to prosecute may result from the failure to win the trust and cooperation of the victims. This reluctance to participate usually does not stem from a lack desire for justice, but rather from inadequate consideration of the trauma, terror, and stigma that sexual violence and a mishandled investigation can produce. The Vienna Conference mandated that specific mechanisms be implemented to advance the avoidance of gender bias and the positive integration of gender concerns in the practice of human rights institutions./17/ In the context of the ICTY, the presence of a Legal Advisor on Gender Crimes has significantly assisted the consideration of legal issues and development of more gendersensitive practices, while the absence of an on-site gender advisor in Rwanda has contributed to the failure to effectively investigate and, until very recently, to indict for crimes of sexual violence, even though rape and other forms of sexual violence were common in the genocidal campaign. A Legal Advisor on Gender Crimes would assist the Prosecutor in carrying out her or his duty to ensure that the human rights dimensions of sexual violence be legally analyzed and factually explored; that the investigative teams have gender balance and appropriate expertise and training; and that methods of investigation be designed to mitigate danger to security and health of victims and witnesses so as responsibly to encourage their participation in the prosecutorial process. This proposal does not purport to mandate a permanent post of Legal Advisor on Gender Crimes; if gender concerns were to be fully integrated into the prosecutorial process, the Prosecutor would have the discretion to decide that the post was no longer needed or "appropriate." Recommendation: Reject proposal 1 bis (a) and others requiring notice of the filing of a complaint to the States Parties and, in turn, to the suspects.

16 Commentary: Not only can advance notice to States or targets seriously undermine the willingness of potential witnesses to cooperate with an investigation, early notice can also exacerbate the threat to victims and witnesses. Recently by maintaining indictment secret until arrest, the ICTY was able to carry out the arrest of an accused. Whether to give notice of the allegations or charges and involve the suspect or a State in the investigatory process should be within the discretion of the Prosecutor until the point where the suspect is questioned, in accordance with draft article 26(6), or arrested, pursuant to article 30(1) and (2). The Women's Caucus does support proposals to create a pre-trial chamber or other mechanism to ensure the integrity of the Prosecutor's investigation apart from notice to states or the suspect. Recommendation: Amend 26(5) to enable a complainant other than a State or the Security Council to request review by the Presidency of the decision not to investigate or indict. Suggested text: 5 ter. At the request of victims or their representatives, or other complainant or interested party, the Presidency [entity to be determined] may review a decision of the Prosecutor not to initiate an investigation or not to file an indictment, and may request the Prosecutor to reconsider his/her decision. Commentary: The ability of victims and other interested non-governmental organizations and individuals to call upon the Presidency to examine the adequacy of the Prosecutor's investigation or charge is another important mechanism for ensuring the independence and integrity of the Prosecutor. Recent experience has shown that this ability may be key to ensuring the investigation or prosecution of sexual violence. For example, women's human rights NGOs have filed amicus curiae briefs with the ICTY and the ICTR. In both cases, these briefs triggered discretionary reconsideration, resulting in revision of the investigations and indictments at issue. It is important that the obligation of the Presidency to consider requests by the States or the Security Council not preclude this access to discretionary review.

17 Women's Caucus for Gender Justice in the International Criminal Court Recommended Amendment to Article 27 (additions to text in bold) Suggested Text: (d) providing for the protection of the accused and of the privacy, integrity and security of victims and witnesses of confidential information. Commentary: It is essential to distinguish between the degree and type of protection required by the accused and that which should be accorded to victim and witnesses. In this context witnesses refer to individuals giving evidence for both the prosecution and the defence. In some circumstances the accused may lose certain rights (such as privacy) which are particularly important to witnesses and victims. A lack of distinction between these two groups, the accused on one side and victims/witnesses on the other, may be legally confusing or incorrect. It must also be recognized that certain rights given to witnesses and victims encourage individuals to give evidence and report offences. Unlike the situation of the accused, the appearance of witnesses before the court and the reporting of offences by victims is likely to be discretionary and depends on their willingness to participate. Ensuring that witnesses are available to testify at trials is essential to the integrity of an international criminal proceeding. Providing suitable environments and conditions for victims and witnesses to provide investigatory bodies with evidence will provide momentum for prosecution. This is of particular importance in cases of sexual and gender violence where the protection of identity and privacy, and the avoidance of intimidation, retraumatisation, and retaliation against witnesses and family members must be an inextricable part of the Court's assessment of the rights of the

18 accused and the guarantee of a fair and impartial trial. Women's Caucus for Gender Justice in the International Criminal Court RECOMMENDATIONS & COMMENTARY Article 27 Commencement of prosecution Note: The suggested text below is based on the "Abbreviated Compilation of Proposals on Procedural Matters." Where the bold text comes from an alternative proposal, additions recommended by the Women's Caucus are underlined. Recommendation 1: Amend article 27(1) to specify that the evidence to be submitted with the indictment be limited and subject to the Prosecutor's duty to protect the confidentiality of witnesses. Suggested text: the Prosecutor shall file with the Registrar an indictment containing a concise statement of the allegations of fact and of the crime or crimes with which the suspect is charged..[and shall be accompanied by [delete: all] sufficient relevant evidence collected by the prosecutor for the purposes of confirmation by the Presidency... Commentary: At the stage of confirmation of the indictment, it is neither necessary nor wise that the Prosecutor be required to supply all evidence s/he has collected. Nor does it compromise the rights of the accused. To require submission of all evidence collected also would conflict directly with the Prosecutor's duty outlined in article 26(2) to guarantee confidentiality and ensure the protection of victims and witnesses at the same time as the Prosecutor should be able to submit necessary evidence in such a way as to protect the confidentiality

19 and anonymity of prosecution witnesses at this stage. The Women's Caucus believes that the Prosecutor should have to justify the indictment through the submission of relevant evidence to meet the standard for confirmation. This gives the Prosecutor the discretion to withhold information that might, among other things, compromise the witnesses who have thus far participated. To require submission of "all evidence" would also deter witnesses who fear retaliation or revelation from any cooperation with the Prosecutor and thus seriously undermine the ability to build a case under article 20. Recommendation 2: Amend 26(5) to enable a complainant other than a State or the Security Council to request review by the Presidency of the decision not to confirm an indictment in whole or in part. Suggested text: At the request of victims or their representatives, or other complainant or interested party, the Presidency [entity to be determined] may review a decision of not to confirm an indictment, and may request the Prosecutor to conduct further investigation. Commentary: The ability of victims and other interested non-governmental organizations and individuals to call upon the Presidency to examine the adequacy of the indictment here parallels our suggestion regarding article 26(5 ter.). Recent experience has shown that this ability may be key to ensuring that the Court fully and fairly consider charges of sexual violence within its jurisdiction under article 20.. Recommendation 3: Amend article 27 to enable the Court to take steps to ensure compensation to the victims of the crimes charged by adopting alternative proposal 4 ter. Suggested text: Add para. 4 ter. Commentary: The addition of a para. such as 4 ter ought to be considered together with Article 45 and 45 bis. The Women's Caucus supports the principle that the Court must play a role in ensuring compensation to victims of the crimes charged and adjudicated by the Court. It cannot be assumed that perpetrators

20 of these crimes have no assets or that the assets cannot be found. In many cases, the perpetrators have systematically seized the property of their victims. Consistent with the principles of complementarity adopted in the Statute, the International Criminal Court should have the power and duty to freeze and, ultimately, in the penalty stage, to confiscate this property or its proceeds and order that it be returned or contributed to a fund for the compensation of victims and survivors. Women's Caucus for Gender Justice in the International Criminal Court ADDITIONAL RECOMMENDATIONS & COMMENTARY FOR WORKING GROUP II (Articles 28, 29, 38 and 43) Article 28 Pre-indictment Arrest Recommendation: Amend Article 28(1) to enlarge the bases for pre-indictment arrest. Suggested text: Adopt the Option to 28(1) on p.13 of the Abbreviated Compilation OR Amend the current text to include the following criteria : a) the safety of any victim, witness or any other person; (b) the preservation of evidence; and (c) the prevention of further atrocities. Commentary: The crimes within the jurisdiction of the Court under article 20 are the most heinous imaginable. In relation to ordinary crimes, the presumption of innocence leads

21 many jurisdictions to sharply limit the conditions for preindictment detention. By contrast, article 20 cases present unique dangers both to persons and to the capacity to administer justice. Suspects may be either continuing the criminal enterprise or particularly ruthless in their efforts to avoid justice. Accordingly, the Women's Caucus supports the view that suspects should not be at large when the Court finds that they will obstruct the fact-finding process, threaten or harm witnesses, or continue the criminal enterprise, and that there may well be cases where custody is necessary to prevent their being killed by others, particular by other powerful accomplices. The "Option" on page 13 of the Abbreviated Compilation, which adds to the basic concern that the suspect not evade the jurisdiction of the Court, is preferable to the current ILC draft text; OR the text should specifically enumerate the three factors listed above. Our only concern with the drafting of the Option is the ambiguity in "(b) avoid pressure on witnesses and victims." On the one hand, it is important that it is broad enough to encompass intimidation and, on the other, it does not clearly encompass killing or the carrying out of other violence without warning or intimidation. Either the word "pressure" must be understood to include danger to the privacy, integrity and security of witnesses which the Women's Caucus proposes to articulate in Article 43, or it should be explicitly stated that it "includes" the concerns articulated there. Article 29 Pre-trial detention or release Recommendation: Amend Article 29(2) to enlarge the bases for pre-indictment arrest. Suggested text: Amend article 29 to provide that the same additional criteria just discussed for pre-trial arrest under article 28(1) should apply to pre-trial detention and release. OR Add the following text based on the proposal contained at page 141 of the Report of the Preparatory Committee, Volume II:

22 Release may only be ordered by the Trial Chamber if it is satisfied that the accused will appear for trial and that, if released, will not pose a danger to any victim, witness or any other person, hinder the investigation or the trial by destroying or concealing evidence, or contribute to the continuation of the crimes charged. Commentary: For the same reasons discussed above and for the purposes of consistency, the criteria in articles 28 and 29 should be identical. With regard to both, it is noted that the Statutes of the current ad hoc Tribunals do not provide for bail, and that a procedure for frequent periodic review of pre- and post-indictment detention, such as in the ICTY and ICTR Statute, is needed to protect the rights of the accused. Article 38 Functions and Powers of the Trial Chamber Recommendation: That this article be subject to article 43 as proposed below and that specific matters concerning the protection and participation of witnesses be moved to article 43. Suggested text: Preserve and amend para. 2 of the ILC draft: 2. The Chamber shall ensure that a trial is fair and expeditious and is conducted in accordance with this Statute and the Rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses as provided in article 43 and the pertinent Rules. Commentary: The Women's Caucus recommends that protective measures, now contained, in part, in the alternative to Rule 38 be moved to article 43 both for simplicity and to ensure that these protections be available where necessary and appropriate throughout the proceedings and not simply at trial. At the same time, section 2 should be retained explicitly to make the powers of the Trial Chamber subject to the protections and rights enumerated in article 43, as discussed below.

23 Article 43 Protection of Victims and Witnesses (Part I: Protection of privacy, integrity and safety:) Recommendation: That Article 43 be amended to (1) separate the protection of victims and witnesses from the protection of the accused which should be provided in Article 41; (2) identify in general terms the judiciary's (the Presidency or the Chambers) authority and responsibility to ensure protection; (3) identify the role of the Victim and Witness Unit, leaving the detailed development of these principles to the promulgation by the Court of the Rules under Article 19. Suggested text: (1) The Court shall, in the promulgation of Rules under Article 19, or upon motion of any party, or upon its own motion, take all measures necessary to ensure the safety, integrity, and privacy of victims and witnesses, as well as that of their families and other associates, before during and after trial, including, but not limited to (a) permitting, at any stage of the proceedings, the withholding of information otherwise subject to disclosure under the Statute and Rules, provided that the accused shall be provided with an appropriate summary of the information withheld. (b) conducting closed proceedings [delete: or], allowing the presentation of evidence by electronic or other means, and taking such other measures as it deems necessary under the circumstances, consistent with the rights of the accused. (c) respecting the right victims of sexual violence, other traumatized witnesses, and children, upon their request, to testify in camera and or without having to see the accused. (d) controlling the manner of questioning to avoid any harassment and intimidation.

24 e) ensuring the effective functioning of the Victims and Witnesses Unit, established under article 13, which shall recommend to the Court and provide protective measures in accordance with this Statute and Rules, and give particular attention to the needs of victims of sexual violence and to the appointment of qualified female staff. Commentary: Re section 1: The Women's Caucus has consolidated and abbreviated the various proposals for witness protection with the purpose of setting out general principles of protection in the Statute and leaving the details to the development of the Rules under Article 19. All these proposals are designed to protect the privacy (including identity or confidentiality of information), integrity (including protection from retraumatization and intimidation as well as of physical health), and safety (including freedom from intimidation and attack). The ultimate goal of the Statute is to guarantee a fair and impartial trial. As the ICTY recognized in its "Decision on the prosecutor's motion requesting protective measures for victims and witnesses" in the Tadic case, the protection of victims and witnesses is indispensable to achieving a fair and impartial trial. To do this, the Court must determine "where the balance lies between the accused's right to a fair and public trial and the protection of victims and witnesses...within the context of its own unique framework."/18/ The Women's Caucus further emphasizes the critical importance of protections and the need for special consideration of the experience and needs of victims of sexual violence. The Tadic decision explains the need for this: The existence of special concerns for victims and witnesses of sexual assault is evident in the Report of the Secretary- General, which states that protection for victims and witnesses should be granted, "especially in cases of rape and sexual assault." (para. 108). It has been noted that rape and sexual assault often have particularly devastating consequences which, in certain instances, may have a permanent detrimental impact on the victim.... It has been noted further that testifying about the event is often difficult, particularly in public, and can result in rejection by the victim's family and community.... In

25 addition, traditional court practice and procedures have been known to exacerbate the victim's ordeal during trial. Women who have been raped and have sought justice in the legal system commonly compare this experience to being raped a second time... /19/ The Women's Caucus urges that the authority to develop the Rules be placed in the Presidency or the Court. The Court, which should be, composed according to geographical and system diversity and gender balance, is the best situated to understand the particular issues presented by the nature and context of the crimes within its jurisdiction, to facilitate the reconciliation of different systems, and to maintain the flexibility necessary to make amendments in light of experience. The Women's Caucus is strongly opposed to a diplomatic process for developing more detailed rules regarding the functioning of the Court, the procedure or evidence. We believe that this would be cumbersome, rigid and counterproductive. With regard to the chapeau for section 1, the Caucus urges that the Statute explicitly recognize the need for protection not only of victims and witnesses, but also their families and other intimate, work, social or political associates in order to embrace all others who might be targeted to punish or intimidate the victim or witness. The chapeau should also make clear the principle that protection should extend to pre- and post-trial proceedings as well as during trial, as appropriate. Re section 1(a): This subsection suggests language to codify the protection of the victims and witness at any point in the proceedings where the revelation of information may jeopardize them and not merely at trial, as discussed by a number of delegations. It thus replaces and incorporates our earlier recommendation respecting article 27(d) and obviates the need to repeat this idea, e.g. in re article 38(5)(c). It also incorporates the proposal by South Africa to amend article 27 ( 1 ter) set forth in Non-paper/WG.4/No. 6 (7 Aug. l997) in order to protect the rights of the accused. Re section 1(b): The Women's Caucus wants to endorse including in the Rules the alternative to article 43 (originally proposed by Australia and the Netherlands) as suggested in the Abbreviated Compilation. The Statute, however, needs to make clear that the Court will have the authority to consider the full range of measures which may be necessary under the circumstances.

26 including in camera proceedings, methods to conceal the identity of the witness both from the public, and, in carefully delineated circumstances of necessity and on a case-by-case, from the defense. In this regard, the Caucus endorses the evolving jurisprudence of the ICTY. The proposed section 1(b) thus reflects minor editing of ILC article 43 in order to eliminate any ambiguity over the scope of discretion accorded the Court to implement protective measures. Re subsection 1(c): The Women's Caucus wants to endorse and modify the proposal (originally contained in the French compilation) in para. (c)(ii) of the alternative to Article 38(4). The original proposal entitles only the victim of sexual assault the right to testify in camera. This proposal does not mandate closure of the trial, but requires that the Court respect the request of the victim to avoid undue retraumatization either through testifying in public or through being required to see the alleged perpetrator. This is a frequent danger for victims of sexual violence and abuse, female or male. Given the particular shame and stigma and potential social ostracism hey suffer, many national jurisdictions confer that right. This proposal recognizes that the same is true for children and may be true for other traumatized witnesses. With regard to testimony given in camera under subsection (1)(b) and (1)(c), the Court should be able to reconcile this protection with the rights of the accused and the public to a fair and impartial trial by providing, in appropriate cases, for the later publication of the testimony on a basis which protects the confidentiality of the witness' identity and identifying information. Re subsection 1(d): The Women's Caucus recommends articulating this concern, either in article 38 where it has been proposed or here in article 43, since it is different in character from protections of the identity or safety of the witness. This is particularly important in cases of sexual violence where traditional techniques of cross examination are designed to retraumatize and confuse the witness. Re subsection 1(e): An effective and qualified Victims and Witnesses Unit (VWU) under the authority of the Registry is key to ensuring that witnesses assist the Prosecutor's

27 investigation and are available to testify. It is also necessary to ensure that their physical and mental health needs are attended to as well as their rights protected in the proceedings. It is axiomatic that the VWU would serve the comparable needs of defense witnesses as well. As indicated in the Abbreviated Compilation, the VWU should be established under the organizational provisions of the Statute, in this case under Article 13 which establishes the Registry. It is particularly important that the VWU be staffed and authorized to deal effectively with the specific needs of witnesses who are victims of sexual violence given the nature of the trauma and the social stigma that victims often suffer and the demonstrated need for female staff with special expertise and training. This needs to be explicit in the Statute to ensure that it receives adequate attention. This could be provided in article 43, as proposed above, or in article 13, when it is taken up at a future PrepCom. The Women's Caucus supports inclusion in article 13 of proposals (A) and (B) contained in Vol. II p. 204 as well as further delineation of functions and procedures in the Rules. Without a VWU, the work of the ICC will be seriously weakened and it may be impossible to achieve a fair and impartial trial. The VWU would be responsible for administering a program to protect the physical and psychological well-being of victims and witnesses. To that end, the Victims and Witnesses Unit should be able to provide or assure, through working with NGO and other resources in the community, temporary or permanent refuge, counseling, and other support to victims and witnesses as it deems necessary. The VWU should also be able to make recommendations to the Court respecting the privacy, integrity and safety of the victim or witness at all appropriate stages of the proceedings, including when the Court is considering the pre-trial detention or release of an accused under ourproposed amendments to articles 28 and 29. Consistent with Article 13 and under this proposed amendment to article 43, the Court should have supervisory authority over functioning of the VWU to ensure its effectiveness. In addition, the placement of the VWU should be carefully studied before consideration at a future PrepCom. In the view of the Women's Caucus, separation from the Prosecutor's office ensures that the needs of the victim or witness as a person are addressed above and beyond the potentially more limited concerns of the Prosecutor for protecting the person as a victim or witness. Separation