Institute of Law Studies, Polish Academy of Sciences, Warsaw, Poland


9.1 The Model of Accusation Before the ICC

During the functioning of the international criminal tribunals, certain features and solutions have been developed that presently determine the specific nature of the model of accusation before the International Criminal Court. From the first international military tribunals in Tokyo and Nuremberg, through the experience of the ad hoc tribunals to the universal ICC, the institutions defining the position and the powers of the prosecutor on international law crimes were transformed from scattered and very simple into advanced catalogues of powers and detailed regulations governing all of his activities in international criminal proceedings. The proceedings before the international tribunals were also subjected to a different type of transformation: they have come a long way from a procedure based on common law to the mixed procedure, exemplifying the convergence of the continental and Anglo-Saxon legal systems. Whereas initially the ad hoc tribunals used mainly common law solutions to conduct their proceedings, with time, as they started seeing the need to balance the expediency and effectiveness of prosecution with the fairness of trial, they began to resort to procedural solutions known from continental states. The functioning of the ad hoc tribunals has proven that a strictly adversarial trial is not compatible with the tasks of international tribunals and the specific conditions of their work. In the situation where international justice strives to establish the historical truth and to participate in restoring international peace and safety, the criminal trial may not be subjected to a contest between parties. This was particularly noticeable in the accusation model: the prosecutor could not play a strictly accusatory role and, at the same time, seek the material truth and act “in the interest of justice”. It turned out to be necessary to utilise the potential of certain institutions of the continental model of accusation. On the other hand, it would be a mistake to claim that the continental system better serves the objectives of international administration of justice. Taking into account the experience of the ad hoc tribunals, the creators of the ICC model of accusation reached freely to both of these legal systems to find procedural institutions that, in their opinion, could be best suited to the tasks imposed on the Court and tried to balance them. This inevitably led to the selection of the most pragmatic solutions. As a result, the ICC Prosecutor turned into “a sui generis organ of international justice” that operates in an entirely different legal and factual environment.1 Being an authority of a new institution of justice, he must define his competences from scratch, try them out in confrontation with judicial authorities and with external factors.

9.2 The Model of Accusation Before the ICC and the Two Legal Traditions

The crucial elements of the ICC model of accusation were analysed in the light of their development in the continental law systems of Poland and Germany and in the common law systems represented by the United States and England. Based on the findings of the analysis, it was possible to establish which of the two legal systems lent specific procedural institutions or solutions to the model of accusation found before the ICC.

In the ICC’s case, the components of the model of accusation transplanted from these legal orders had to be adapted to suit the needs of the Court and to become compatible with the remaining procedural solutions that often came from another legal tradition. As a result, the analysis had to focus on the manner in which specific procedural institutions taken from the two legal systems are used in the new context, acquiring a new meaning and new content. The monograph presents the modifications implemented to the ICC proceedings in relation to models adopted in specific states, as well as the reason for their introduction; it reveals the specific needs of the international administration of justice that triggered these modifications. The analysis concerned also how the model solution had to be transformed when transferred from the source legal system to the legal system of the ICC and whether the transformation led to a “faithful but autonomous restatement” between the original and the ICC procedure, or whether the translation constituted a substantial variation of the original system, when the main goal of translation was to create a provision that is effective and appealing in the final system.2 It was also demonstrated what aim an institution was intended to achieve in its final form before the ICC and whether it has actually achieved it. The analysis also tackled how the ICC judges took practical advantage of the achievements of the legal science and case law pertaining to specific components of the model of accusation coming from different legal systems, which resulted in the mixing of legal traditions from common law and continental law systems, not only within one model of accusation but even within one procedural institution.

Due to the fact that the specific components of the procedural model are derived from various legal orders, the applied solutions are not always compatible with each other. Indeed, it is not always possible to “pluck” specific procedural institutions from various legal systems and treat them as ready-to-use products. Each system is internally coherent3—it is not only a complete whole, but it also follows a specific “vision” of justice. Taking a procedural institution out of an entire system of criminal proceedings or a legal culture may lead to its wrong interpretation and, in consequence, erroneous evaluation. The effectiveness and benefits of a procedural institution may not be assessed in isolation from its legal, procedural or even cultural context. Legal constructs and techniques of legal interpretation upheld in national law should not be automatically applied at the international level.4 Therefore, “it is more appropriate in the interpretation of the provisions of a rule to rely essentially on the words of the rule as promulgated, rather than to assume an a priori position as to the origin of the rule. A rule may have a common law or civilian origin but the final product may be an amalgam of both common law and civilian elements, so as to render it sui generis”.5 For every procedural solution, there are many other determinants that need to be considered. The use of a specific institution of criminal proceedings in an international context always requires a detailed analysis of the characteristics and conditions of an international criminal tribunal. The institution has to be adjusted both to the tribunals’ tasks and to the remaining components of the procedure.

The role played by the ICC Prosecutor in the model of accusation before the ICC should be considered to be the most significant feature taken over from the continental procedure. Before the international military tribunals, as well as at the initial stage of functioning of the ad hoc tribunals, the prosecutor used to play the role of an accusatory authority in a form known from the strictly adversarial system of common law states—his only task was to accuse. As the ad hoc tribunals continued to operate, however, it turned out that such a model was not compatible with the tasks addressed by the international administration of justice. It became necessary to balance the chances of the parties to the proceedings, which resulted in an obligation of the Prosecutor to look also for evidence in favour of the accused. From the earliest days of the international administration of justice, it was obvious that the collection of evidence at the location of the crime made it significantly more difficult for the accused to prepare properly for the defence. Taking these difficulties into consideration, the ICC finally adopted a solution offering support to the accused in the preparation of exculpatory evidentiary material based on the assumption that the Prosecutor should act in the broadly understood interests of justice. As a result, in proceedings before the ICC the Prosecutor plays not only the role of an accuser but also that of a guardian of the law. He is expected to strive to establish the material truth rather than only to have the accused convicted.

The development of the investigation stage based on the Anglo-Saxon tradition accounts for another characteristic feature of the accusation model before the ICC. This model is based on the principle of procedural opportunism. In view of its almost unlimited range of jurisdiction and limited personal and financial resources, it turned out that the ICC Prosecutor could not avoid the selection of defendants. Therefore, the broad prosecutorial discretion in the selection of cases he is going to handle has become a basic component of the model of investigation. The ICC Prosecutor’s right to select the suspects is limited only by the factual (and financial) capacity of the Court. Another significant feature is that the investigation, similar to the Anglo-Saxon model of accusation, is aimed at establishing whether “there is sufficient evidence justifying the suspicion that the suspect committed the crime he/she is charged with” and therefore whether filing an indictment is reasonable. Contrary to the practice as in the continental tradition, the Prosecutor is not obliged to clarify a case comprehensively or to handle the proceedings every time there is a justified suspicion that a crime has been committed that falls within the jurisdiction of the Court. At the same time, components characteristic of the continental model of accusation were introduced to the investigation, including: subjecting the decision on the commencement of an investigation to judicial review; judicial review of a decision on the refusal of initiation and conducting of proceedings; implementing the preliminary examination of a case due to the Prosecutor’s need to collect evidence to convince the judicial authority that there is a sufficient basis for authorisation of initiation of an investigation.

Another characteristic component of the accusation model before the ICC is the broad scope of judicial review over the Prosecutor’s actions in the investigation. This review goes beyond a strict review of merits and formal review of an indictment. The Prosecutor’s autonomy has been subjected to an extensive judicial control, unknown in the majority of legal systems. The Pre-Trial Chamber does not only exercise the powers traditionally secured for investigative judges in a manner taken from the continental law tradition but also performs the functions reserved for the hierarchically superior prosecutors in the absence of a hierarchical structure in the ICC Office of the Prosecutor. First, the scope of review has been expanded: not only the decision to initiate an investigation has been authorised, but the judicial review before the ICC also covers the justifiability of the Prosecutor’s decision not to file the charges. Thus, scrutiny is given both to the refusal to conduct an investigation and to the refusal to file an indictment after an investigation has been completed. Second, the manner of performing the review has been expanded: a quasi-trial was implemented to confirm the charges drafted by the Prosecutor. It is an adversarial procedure, held on the forum of the Pre-Trial Chamber. Third, the scope of evidence the Prosecutor intends to present at trial was subjected to judicial review during a status conference. Another component of judicial control over prosecutorial actions is the Trial Chamber’s competence to modify the legal characterisation of facts formulated by the Prosecutor in the charges. Moreover, this has also become possible at the stage when the indictment is presented for confirmation by the Pre-Trial Chamber. As a result, the Prosecutor’s independence in drafting the charges has been limited in favour of the judicial authority. In this way, the system of “checks and balances”6 was intended to be achieved within the scope of the investigation, where the role of the court would be aligned with the role of the Prosecutor in filing the indictment before the Trial Chamber. In consequence, however, the numerous components of judicial review—frequently introduced in the case law—further complicate the Prosecutor’s work.

The institution of disclosure of evidence was, in turn, transferred, almost in its entirety, from the legal system of common law states. This institution is a consequence of the adoption of a strictly adversarial model of trial and the assumption that there are two parties to the proceedings, each of them presenting its case to the court. Characteristically, the ICTY modelled this institution almost completely on the United States system, introducing only small modifications to expand the scope of the Prosecutor’s disclosure obligation. The ICC has adopted the model applied and tested by the ICTY without any major changes. Simultaneously, two fundamental components of the continental procedure were adopted, which rendered the established solution incoherent. First, the ICC Prosecutor has the obligation not only to disclose all evidence in favour of the accused but also to search for it proactively. Taking into account that the accused should have ensured access to the electronic database containing also exculpatory evidence, which the Prosecutor is obliged to keep, it can be concluded that the ICC model of prosecutorial disclosure obligation has taken on many features of “access to the case file”, departing further away from the Anglo-Saxon “disclosure of evidence” model. Second, it was assumed in the proceedings before the ICC that the materials disclosed to the other party should be also submitted to the Pre-Trial Chamber and the Trial Chamber. This gave rise to an obligation that resulted in the establishment of a quasi-dossier (the register) of the case.

As far as consensual termination of proceedings is concerned, at the initial stage of functioning of the ad hoc tribunals, the model known from common law states was eliminated. Later on, however, the tribunals reached for solutions provided for in this model: before the ICTY, it was decided that the trial would be terminated if the accused pleaded guilty and broad grounds for the execution of agreements between the Prosecutor and the accused were established—pursuant to such agreements, the Prosecutor could file an indictment only on the charges relating to offences that the accused admitted to have committed while promising to discontinue the proceedings in relation to other charges; moreover, the Prosecutor could request adjudication of a specific sentence. Thus, a solution similar to the American plea bargaining institution was adopted. And there, the largest differences between the proceedings before the ICTY and the ICC manifested themselves. The creators of the ICC decided that plea bargaining between the Prosecutor and the accused could not provide a basis for adjudicating on the criminal responsibility of the accused and for issuing a merit-based ruling. Currently, the ICC rules for consensual termination of criminal proceedings are even more restrictive than in the majority of continental law states. The Trial Chamber is not allowed to adjudicate exclusively on the basis of guilty plea. It has to establish whether the plea is based on the facts of the case arising from the collected evidence. This solution is negatively evaluated in the legal science: it has been suggested that despite the imperative character of the Rome Statute, it cannot be excluded that the ICC judges will behave as Anglo-Saxon judges do, taking into account informal agreements concluded between the parties without any legal basis, as there are clear practical and procedural advantages to this solution. This practice will then need to be formally regulated.7

The development of an accusation at trial before the ICC is the best example of the convergence of the legal systems. In general, the “basic structure” for evidentiary proceedings has been adopted from common law systems. At the same time, numerous components from the continental tradition were implemented. The rule that the parties are responsible for the presentation of evidence in the case comes from the common law tradition. At the initial stage of functioning of the ad hoc tribunals, the judge’s role was also taken from this tradition. However, even during the earliest proceedings, it turned out that the needs of the international administration of justice are not compatible with the judge’s passivity. Learning from the ad hoc tribunals’ experience, the ICC adopted a solution that departed from the Anglo-Saxon model and where the judge became obliged to manage the course of the trial and the presentation of evidence, similar to continental systems. The adoption of the objectives and the essence of the trial known in continental systems should be considered as the fundamental change. Namely, the trial before the ICC nowadays aims at establishing the objective historical truth. This objective has numerous implications. First, the judge must have knowledge of the case and be able to access case records held by the Registry. Second, the judge must be “activated” by being able to use broad competences in introducing evidence to the trial and interrogating witnesses. Third, every judgment must be accompanied by a reasoned statement of findings. Last, the judge’s role manifests itself in a lack of binding rules for evidentiary proceedings, as a result of which a judge may manage the course of evidentiary proceedings. The growing judicial competence has led to limitation of the Prosecutor’s role. Greater judicial impact on the scope and organisation of evidence prepared by the prosecution means that it is not the Prosecutor but rather the judge who can have an exclusive right to decide on the scope of evidence presented in a trial. The judge ceased to be an impartial arbiter and became an authority with plenty of options to affect the course of the trial, often at the cost of the Prosecutor’s autonomy and independence—in the name of the effectiveness of the proceedings. We should not, however, overlook the fact that the Prosecutor’s role has also changed—he cannot confine himself to being the opposite party in a trial when at the same time he is an authority appointed to look for the material truth. All these implications arising from the obligation to determine the material truth constitute the components of a trial model known from continental systems.8

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