L/2796

PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT CONSIDERS COMMENCEMENT OF PROSECUTION ISSUES

Many delegations, including Algeria, Egypt, Singapore and Ukraine, among others, expressed support for the idea of a pre-trial chamber. The representative of France said that a pre-trial chamber should be used by the proposed court to decide whether to confirm indictments brought by prosecutors in their entirety, proceed with a partial indictment, or refuse to proceed. Algeria endorsed that approach, adding that if proceedings were initiated following an investigation by the pre-trial chamber, the indictment should be reviewed by the prosecutor prior to formal registration by the criminal court.

Expressing agreement with France, Singapore said that indictments should be reviewed at a hearing at which the accused person could be represented. But he expressed concern that if the presidency served in that role, and also served as supervisor of the appellate process, the appeals mechanism of the court would be undermined.

Regarding the same subject, the delegate from Egypt affirmed that the judges in the different chambers of the court should be permanent and should not be rotated, as this would create incompatibility. The same judges should deal with indictments and other pre-trial matters regularly and exclusively. The delegations of France, Italy and Slovenia, among others, agreed that there should be no rotation of judges.

The International Law Commission draft statute had made 27 references to the presidency of the court, the representative of Japan noted. The Japanese delegate said that the statute as drafted would provide too much power to the presidency during the pre-trial period and would also give the presidency the right to preside over the appeals chamber. Several delegations, including Thailand, Russian Federation and the Czech Republic, endorsed that view.

The United States said that the idea of having a judicial officer confirm an indictment seemed like an appropriate means of checking the power of the prosecutor, but he also doubted that the presidency of the court was the appropriate officer.

Canada raised the question of both the proceedings and the prosecutor, if the preliminary chamber decided not to confirm an indictment. Referring to another point in article 27, the Canadian delegate also mentioned that the trial should be conducted in a language understood by the defendant.

Also this afternoon, the Committee began its discussion of draft articles dealing with arrest, pre-trial detention or release and notification of the indictment. The representative of France said that a State party to the proposed court should extend complete judicial cooperation. That was critical, because the court would always act on the territory of its members.

Pre-indictment procedures should clearly delineate the responsibility of courts and national judicial organs, according to the representative of Australia. Many countries would not be able to accept the direct execution of international court arrest warrants on their territory; in his country, the international court would have to pass that request to national judicial authorities.

The representative of Argentina stated that depriving an individual of his freedom prior to trial should be the exception rather than the rule. The representatives of Israel, however, stressed that pre-trial detention should be determined by laws applicable in the requested State.

Several delegations commented on provisions of the draft statute which would provide for a 90-day period of pre-indictment arrest, subject to extension. New Zealand said that draft articles providing for the provisional arrest of accused persons prior to trial should not be allowed to result in indefinite detention. The United States endorsed that view, stating that requests for provisional detention beyond a 90-day period should be accompanied by a compelling rationale.

The representatives of the United Kingdom and China called for further elaboration of the statute regarding the power of the court presidency to issue a provisional warrant for arrest. China said that arrest warrants of the international criminal court should not be presumed to be compulsory upon individual countries.

Finally this afternoon, the Committee completed its discussion of the investigation of alleged crimes, with several delegations commenting on the subject of on-site investigations carried out by the court prosecutor. Viet Nam said that consent was required by the State concerned and Denmark voiced a similar view, emphasizing that such an investigation should be

International Criminal Court - 3 - Press Release L/2796 31st Meeting (PM) 13 August 1996

carried out "in consultation" with State authorities. Italy stressed that such cooperation should be strictly "judicial, not through the police". Venezuela underlined that an on-site investigation required the cooperation of "all the organs", and not just a few, of the State concerned.

Several delegations, including Denmark, Italy, Republic of Korea and New Zealand, expressed support for a suggestion by Australia at this morning's session that the rights of the suspect be detailed in a separate article for purposes of clarity. Referring to the Canadian delegate's earlier suggestion that the phrase "provisional arrest" not be used, the representative of Italy indicated that "measures restricting liberty prior to trial" might be more appropriate.

When it meets again at 10 a.m. tomorrow, 14 August, the Committee will meet in closed session to hear representatives of the Prosecutor's Office of the International Tribunal for the Former Yugoslavia.

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