INVESTIGATION KAROLINA KREMENS, LL.M. (Ottawa), Ph.D. International Criminal Procedure

CONTENTS 1. General remarks 2. Initiation of investigation 3. Investigation – gathering of evidence

I. GENERAL REMARKS common and civil law systems situation in historical and ad hoc tribunals political impact general differences between systems o search for the truth o position of the judge and parties (system judge-driven and party-driven)

II. INITIATION OF INVESTIGATION (art. 13 of the Rome Statute) The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

II. INITIATION OF INVESTIGATION 1) power of the prosecution to take action proprio motu – art. 13 (c) 2) State party referral – art. 13 (a) 3) request of the Security Council – art. 13 (b)  discretion of the Prosecutor vs. State party and Security Council referrals  reality in the ICC

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c))  analogus to the domestic legal systems  controversial issue  distinct views on the power of the Prosecutor to act proprio motu – discussion in the Preparatory Committee  cooperation with the Security Council – coercive power

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) BASIS OF INFORMATION  initializing information (art. 15 (1)) and additional information (art. 15 (2)) – States, UN, governmental organizations, NGOs, other reliable sources  informations should be received in wirtten form but additional information may be taken orally (Rule 46)  additional information considered as testimonies (Rule 47 (1))  possibility to receive additional information in the presence of the counsel or Pre-Trial Chamber judge (Rule 47 (2))  confidential measures (Rule 46)

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) REASONABLE BASIS TO PROCEED WITH INVESTIGATION  the Prosecutor is not totally independent in his decision to proceed with investigation if he believes there is a reasonable basis to proceed; he must seek an authorization from the Pre-Trial Chamber  request for authorization (art. 15 (3))  request must be send to the Pre-Trial Chamber in a written form (Rule 50 (2)) with all additional gathered materials (art. 15 (3))

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) REASONABLE BASIS TO PROCEED WITH INVESTIGATION – victims may take the representation (art. 15 (3))  the Prosecutor should inform victims known to him when he intends to seek the authorization from the Pre-Trial Chamber (Rule 50 (1)) - exceptions  searching for the victims  assistance of the Victims and Witnesses Unit  victims may make representation in writing to the Pre-Trial Chamber (Rule 50 (3))

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) REASONABLE BASIS TO PROCEED WITH INVESTIGATION – the decision of the Pre-Trial Chamber  the Pre-Trial Chamber may request additional information (Prosecutor, victims) or even hold a hearing (Rule 50 (4))  decision – there is a reasonable basis (art. 15 (4) o authorization of the commencement of the investigation o preliminary determination on the jurisdiction o reasons for each issue; notification of victims (Rule 50 (5))  decision – there is no reasonable basis (art. 15 (5) o no authorization o Prosecutor may seek authorization in the future (new facts and evidence)

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) NO REASONABLE BASIS TO PROCEED (art. 15 (6))  Prosecutor evaluates the received information and decides whether to initiate investigation or not to proceed (art. 53 (1))  Prosecutor should take into consideration whether: a) the information provides the reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed b) the case is admissible under art. 17 c) the gravity of the crime and the interests of victims and the interest of justice (Article 53 (1))  if the Prosecutor concludes that there is no reasonable basis to proceed he renders an adequate decision

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) NO REASONABLE BASIS TO PROCEED (art. 15 (6)) – informing informant  obligation to inform persons on the decision to not proceed (art. 15 (6))  information should include reasons for the decision, be sent promptly and in the confidential way (Rule 49 (1))  no possibility to challenge or appeal such decision by the informant  the informant may provide more information in the future (new facts and evidence) that may result in deciding that there is a reasonable basis to proceed (Rule 49 (2))

II. INITIATION OF INVESTIGATION 1) PROSECUTION’S OWN ACTION (art. 13 (c)) NO REASONABLE BASIS TO PROCEED (art. 15 (6)) – control of the decision by the Pre-Trial Chamber  in case when prosecutor determines that there is no reasonable basis to proceed and such determination is solely based on the on art. 53 (1) (c), the Pre-Trial Chamber should be informed (art. 53 (1) in fine)  the Pre-Trial Chamber may review a decision of the Prosecutor to not proceed with the investigation and may request the Prosecutor to reconsider (own initiative, request of the State or Security Council) (art. 53 (3))  the final decision is still on the Prosecutor

II. INITIATION OF INVESTIGATION 2) STATE PARTY REFERRAL (art. 13 (a))  State may refer crimes within the jurisdiction of the ICC requesting Prosecutor to act (art. 14 (1)  Prosecutor has to determine whether one or more specific persons should be charged with the commission falling within the jurisdiction of the ICC  State refer SITUATIONS not crimes committed by particular individuals  a referral should be made in writing (Rule 45)  the referral should include relevant circumstances and be accompanied by supporting documentation as available to the State referring the case (art. 14 (2)

II. INITIATION OF INVESTIGATION 3) REQUEST OF THE SC (art. 13 (b))  a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations  the SC have to act under chapter VII of the Charter, no other actions will be considered  controversial issue – the ICC is not an UN organ (ICTY and ICTR should listen, ICC doesn’t have to); therefore there is many that wants to reconsider this way of initiating the investigation

II. INITIATION OF INVESTIGATION DISCRETION OF THE PROSECUTION VS. STATE PARTY AND SECURITY COUNCIL REFERRALS  Prosecutor should take into consideration whether: a) the information provides the reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed b) the case is admissible under art. 17 c) the gravity of the crime and the interests of victims and the interest of justice (Article 53 (1))

II. INITIATION OF INVESTIGATION DISCRETION OF THE PROSECUTION VS. STATE PARTY AND SECURITY COUNCIL REFERRALS  in such situation the Prosecutor should inform the Pre-Trial Chamber and the State making referral (art. 13 (a)) or the Security Council (art. 13 (b)) of his conclusions and reasoning for that (art. 53 (2) in fine)  the Pre-Trial Chamber may review a decision of the Prosecutor to not proceed with the investigation and may request the Prosecutor to reconsider at the request of the SC or State Party or on its own initiative (only art. 53 (2) (c)) – art. 53 (3)  the final decision is on the Prosecutor

III. INVESTIGATION - EVIDENCE  collection of incriminating and exonerating evidence  obligation to respect interests and personal circumstances of witnesses and victims (sexual violence!)  problems regarding conducting investigation  ‘on site investigations’  forms of cooperation  general obligation to cooperate  higher standard of the rights of individuals