ASSIGNMENT

TOPIC: THE ROLE OF PRE TRIAL CHAMBER

SUBMITTED TO
SUNIL KUMAR CYRIAC SIR

SUBMITTED BY
ARUNDHATHY R M
3RD SEMESTER CRIMINAL LAW
INTERNATIONAL CRIMINAL LAW

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INTRODUCTION

The International Criminal Court provides creative and composite structure of justice that
consider all the rights and privileges given to suspects. The International Criminal Court has very
aspiring target as it not only focuses on establishing International justice, but also peace. The
International Criminal Court is a fixed and stable international court which was established to
investigate, prosecute, and try people charged for committing serious crimes. The International
Criminal Court has power to prosecute individuals for the international crimes of genocide,
crimes against humanity, war crimes, and crimes of aggression. The International Criminal Court
is situated in The Hague, Netherlands. International Criminal Court was entered into force on
1st July 2002.

International Criminal Court was established by the Rome statute of International criminal Court
1988. International Criminal Court was established to prosecute serious crimes done by
individuals in cases where national courts are unable to prosecute criminals or when the U.N. or
individual state transfers the situation to the court. The first hearing of International Criminal
Court was held in 2006.

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STRUCTURE OF THE INTERNATIONAL CRIMINAL COURT

The International Criminal Court is composed of mainly 4 primary organs:

1. The Presidency.

2. The Chambers.

3. The Office of the Prosecutors.

4. The Registry.
The assembly of parties serves as the court’s management, oversight, and legislative body, and
is not an organ of the court. It establishes the budget, elects’ judges and prosecutors, amends law
and procedure, and conducts other activities consistent with the Rome Statute (Structure of the
ICC)

THE PRESIDENCY

• It represents the International Criminal Court externally.

• It also performs selected number of judicial functions.

• Presidency organ of International Criminal Court organises the judicial chambers

and assigns cases.
The presidency organ of the International Criminal Court is also responsible for the
administration of the court except the office of the prosecutor as it is responsible for its own
administration. The presidency organ is also responsible in maintaining relations with states &
promotes common awareness and perception of the court through external relation.

THE CHAMBERS

There are 5 main functions of the chambers:

• To issue arrest and warrants.

• To determine the jurisdiction and admissibility.

• To confirm or rejects the charges.

• To hear the appeals.

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 • To adjudicate the cases.
The Chamber of the International Criminal Court consists of 18 judges organised into the pre-
trial division, the trial division, and the appeal division. The pre-trial division and the trial
division have 3 judges each and the appeal division consists of 5 judges.

The pre-trial chamber has a very important role in the very first phase of the trial as the judges
of pre-trial chamber makes the decision whether to confirm the charges against the accused or
not.

If the charges are confirmed by the pre-trial chamber, then the trial chamber comes into play.
The trial chamber’s responsibility is to decide the innocence or guilt of the accused; it also
imposes a sentence on a convicted person and may also order the convicted person to pay money
for compensation.

If the convicted person or the prosecutor appeals the judgement of the trial chamber, then the
appeal chamber comes into role and it may decide to reverse or alter the decision and can also
order a new trial before a distinct trial chamber.

THE OFFICE OF THE PROSECUTOR

• It analyses the jurisdiction and the admissibility.

• It investigates the crime.

• It prosecutes individuals.
Office of the prosecutor is an independent organ of the court. It is responsible for examining
situation under the jurisdiction of court where genocide, crime against humanity, war crimes and
aggressions appear to have been committed, and carrying out investigation and prosecution
against individuals who were allegedly most responsible for those crimes.

REGISTRY

• The registry of International criminal Court administers court services.

• It helps external defence and victim counsel.

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 • It organises witnesses and victim protection.

• It promotes victim involvement and reparation.

The registry of ICC basically provides the administrative and judicial support to all the organs
of the court. It also provides counsel support functions to victim and it also ensures the protection
and safety of both witnesses and victims. The registry of ICC is also responsible for supervising
and regulating the detention of all who are detained under ICC’s command. Registrar who leads
the registry is the principle administrative officer of the court.

PRESIDENCY

The Presidency is one of the four organs of the International Criminal Court (ICC), consisting of
three of its judges. The Presidency is composed of three judges of the Court, elected to the
Presidency by their fellow judges, for a term of three years. The President of the Court is Judge
Chile EboeOsuji (Nigeria). Judge Robert Fremr (Czech Republic) is First Vice-President, and
Judge Marc Perrin de Brichambaut (France) is Second Vice-President.

The Presidency is entrusted with functions in three main areas of responsibility: administration,
judicial/legal matters and external relations. The Presidency is responsible for the proper
administration of the Court, with the exception of the Office of the Prosecutor. Nonetheless, it
coordinates and seeks consensus with the Prosecutor on all matters of mutual concern. Among
the Presidency’s administrative functions are the managerial oversight of the Registry and
ensuring that the Registry delivers effective service to the judiciary.

As part of its oversight function, the Presidency provides input into a broad range of
administrative policies and issues presidential directives on matters relevant to the Court’s
overall functioning, such as staff regulations, information security and the Court’s trust fund.

The Presidency’s responsibilities also include judicial activities and external relations. In the
exercise of its judicial functions, the Presidency organises the Chambers’ judicial work and
carries out its functions as set out in the Statute, Rules of Procedure and Evidence, and
Regulations of the Court. Among the Presidency’s responsibilities in the area of external relations
are the negotiation and conclusion of agreements on behalf of the Court and the promotion of
public awareness and understanding of the institution.

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The judicial/legal functions of the Presidency are twofold. First, the Presidency provides support
to enable the Chambers to conduct fair, effective and expeditious public proceedings such as
constituting and assigning situations to Chambers, organising the plenary sessions and liaising
with the Registry. Second, the Presidency has specific legal and judicial functions, including the
judicial review of certain decisions of the Registrar; the conclusion of Court-wide cooperation
agreements (e.g., bilateral arrangements with States on the enforcement of sentences); and the
provision of general legal advice.

In the exercise of its external relations functions, the Presidency represents the Court in its
relations with States Parties as well as non-States Parties to the Rome Statute, the United Nations
and other international institutions, regional organisations, non-governmental organisations and
other external entities. The promotion of public awareness and understanding of the Court,
enhancing communication and fostering greater cooperation between the Court and various
external partners are among the Presidency’s main responsibilities in this field.

CHAMBERS

The Chambers, organised into Divisions as determined by article 39(1) of the Rome Statute,
carry out the judicial functions of the Court. There are three Divisions: the Pre-Trial Division,
the Trial Division, and the Appeals Division.

The assignment of judges to Divisions is based on what functions each judge will perform and
the qualifications and experience of the judge. This is done in a manner ensuring that each
Divisionbenefits from an appropriate combination of expertise in criminal law and procedure
and international law. The judges assigned to the Appeals Division serve exclusively in that
Division for their entire term of office.

If the Court’s workload so requires, and with a view to ensuring efficient management, the
Presidency may decide to constitute more than one Pre-Trial or Trial Chamber. It may also decide
to attach temporarily a judge of the Trial Division to the Pre-Trial Division and vice versa.

From among the members of each Division a President of the respective Division is elected to
oversee that Division’s administration for a period of one year.

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PRE-TRIAL DIVISION

The Pre-Trial Division is composed of judges with experience primarily in criminal trials. The
judges serve for a period of three years.

The Pre-Trial Chambers consist of three judges each, although many of the functions of the
Chamber may be carried out by a Single Judge. The Presiding Judge of a Chamber is elected by
the judges of the Chamber in question.

One of the Pre-Trial Chamber’s functions is to grant or deny the Office of the Prosecutor leave
to initiate an investigation. It makes a preliminary determination as to whether the case falls
within the jurisdiction of the Court without prejudice, however, to subsequent determinations in
respect of jurisdiction and admissibility.

Under the Rome Statute, if the decision is based on “interests of justice”, the Pre-Trial Chamber
may, on its own initiative, at the request of the State making a referral or of the United Nations
Security Council, review a decision of the Prosecutor not to initiate an investigation or to
prosecute.

It is the mandate of the Pre-Trial Chamber to issue warrants of arrest and summonses to appear
before the Court at the request of the Prosecutor, and to guarantee the rights of all persons during
the investigation phase. The Pre-Trial Chamber also issues orders to protect the rights of the
participants in the proceedings and, where necessary, provides for the protection and privacy of
victims and witnesses. It preserves evidence, protects persons who have been arrested or who
have appeared in response to a summons, and safeguards information affecting national security.

Within a reasonable time after a suspect has been surrendered to the Court or has appeared
voluntarily before the Court, the Pre-Trial Chamber holds a hearing in the presence of the
Prosecutor and the suspect and/or his or her counsel with a view to determining whether the
charges can be confirmed or not. A confirmation hearing can be held without the suspect being
present.

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TRIAL DIVISION

Most of the Trial Division judges have extensive experience in criminal trials. They serve in this
Division for three years and thereafter until the completion of any case if the trial has already
begun.

If the charges are confirmed by the Pre-Trial Chamber, the Presidency constitutes a Trial
Chamber to try the case.

The Trial Chamber is composed of three judges, with a Presiding Judge elected by the judges of
the Chamber in question. A Single Judge may also carry out the functions of the Chamber.

The Trial Chamber’s primary function is to ensure a fair and expeditious trial, conducted with
full respect for the rights of the accused and due regard for the protection of victims and
witnesses.

Trials must be held in the presence of the accused and in public, unless special circumstances
require that certain proceedings are held in closed session to protect confidential or sensitive
information to be given in evidence, and victims and witnesses. The sentence is pronounced in
public.

The Trial Chamber determines whether an accused is innocent or guilty of the charges and, if
guilt has been determined, it imposes a sentence of imprisonment not exceeding a maximum of
thirty years or, in cases of extreme gravity, life imprisonment. Financial penalties may also be
imposed. The Trial Chamber may order reparation to victims, including restitution, compensation
and rehabilitation.

As indicated above, the Presidency can decide to temporarily attach a judge assigned to the Pre-
Trial Division to the Trial Division if the efficient management of the Court’s workload so
requires, but a judge who has participated in the pre-trial phase of a case can not, under any
circumstances, be eligible to sit on the Trial Chamber hearing that case.

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APPEALS DIVISION

The Appeals Chamber consists of all five judges of the Appeals Division, out of which the
Chamber decides on a Presiding Judge for each appeal.

The Division deals with appeals received from or filed by convicted persons, the Prosecutor,
legal representatives of the victims or bona fide owners of property adversely affected by Court
decisions.

The convicted person may appeal against conviction and sentence. The Prosecutor may appeal
against the acquittal or conviction of an accused, or the sentence. Such appeals may be made on
the grounds of procedural errors, errors of fact or law and on any other grounds affecting the
fairness or reliability of the proceedings or decisions.

The Appeals Chamber may reverse or amend the decision on conviction or sentence and may
order a new trial before a different Trial Chamber. It may also revise the final judgement of
conviction or the sentence. The Appeals Chamber is also responsible for the review of sentence,
i.e., to determine whether, after the person has served two-thirds of the sentence or 25 years in
the case of life imprisonment, the sentence should be reduced. If the Appeals Chamber decides
not to reduce the sentence, it thereafter reviews the question at least every three years. The
Appeals Chamber is finally the body responsible for deciding questions relating to the
disqualification of the Prosecutor or a Deputy Prosecutor.

Legal representatives of the victims, the convicted person or bona fide owner of property
adversely affected by an order for reparation to victims may appeal against the order. Other
decisions made during the course of the proceedings by the Pre Trial Chamber may also be
appealed, including decisions with respect to jurisdiction and admissibility.

Article 56

Role of the Pre-Trial Chamber in relation to a unique investigative opportunity

1. (a) Where the Prosecutor considers an investigation to present a unique opportunity to take
testimony or a statement from a witness or to examine, collect or test evidence, which may not

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be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial
Chamber.

(b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures
as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular,
to protect the rights of the defence.

(c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant
information to the person who has been arrested or appeared in response to a summons in
connection with the investigation referred to in subparagraph (a), in order that he or she may be
heard on the matter.

2. The measures referred to in paragraph 1 (b) may include:

(a) Making recommendations or orders regarding procedures to be followed;

(b) Directing that a record be made of the proceedings;

(c) Appointing an expert to assist;

(d) Authorizing counsel for a person who has been arrested, or appeared before the Court in
response to a summons, to participate, or where there has not yet been such an arrest or
appearance or counsel has not been designated, appointing another counsel to attend and
represent the interests of the defence;

(e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial
Division to observe and make recommendations or orders regarding the collection and
preservation of evidence and the questioning of persons;

(f) Taking such other action as may be necessary to collect or preserve evidence.

3. (a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial
Chamberconsiders that such measures are required to preserve evidence that it deems would be
essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good

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reason for the Prosecutor's failure to request the measures. If upon consultation, the Pre-Trial
Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-
Trial Chamber may take such measures on its own initiative.

(b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be
appealedby the Prosecutor. The appeal shall be heard on an expedited basis.

4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the
record thereof, shall be governed at trial by article 69, and given such weight as determined by
the Trial Chamber.

Article 57

Functions and powers of the Pre-Trial Chamber

1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions
in accordance with the provisions of this article.

2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54, paragraph
2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges.

(b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions
provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence
or by a majority of the Pre-Trial Chamber.

3. In addition to its other functions under this Statute, the Pre-Trial Chamber may:

(a) At the request of the Prosecutor, issue such orders and warrants as may be required for the
purposes of an investigation;

(b) Upon the request of a person who has been arrested or has appeared pursuant to a summons
under article 58, issue such orders, including measures such as those described in article 56, or
seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the
preparation of his or her defence;

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(c) Where necessary, provide for the protection and privacy of victims and witnesses, the
preservation of evidence, the protection of persons who have been arrested or appeared in
response to a summons, and the protection of national security information;

(d) Authorize the Prosecutor to take specific investigative steps within the territory of a State
Party without having secured the cooperation of that State under Part 9 if, whenever possible
having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that
case that the State is clearly unable to execute a request for cooperation due to the unavailability
of any authority or any component of its judicial system competent to execute the request for
cooperation under Part 9;

(e) Where a warrant of arrest or a summons has been issued under article 58, and having due
regard to the strength of the evidence and the rights of the parties concerned, as provided for in
this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to
article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular
for the ultimate benefit of victims.

Article 58

Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear

1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the
application of the Prosecutor, issue a warrant of arrest of a person if, having examined the
application and the evidence or other information submitted by the Prosecutor, it is satisfied that:

(a) There are reasonable grounds to believe that the person has committed a crime within the
jurisdiction of the Court; and

(b) The arrest of the person appears necessary:

(i) To ensure the person's appearance at trial;

(ii) To ensure that the person does not obstruct or endanger the investigation or the court
proceedings; or

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(iii) Where applicable, to prevent the person from continuing with the commission of that crime
or a related crime which is within the jurisdiction of the Court and which arises out of the same
circumstances.

2. The application of the Prosecutor shall contain:

(a) The name of the person and any other relevant identifying information;

(b) A specific reference to the crimes within the jurisdiction of the Court which the person is
alleged to have committed;

(c) A concise statement of the facts which are alleged to constitute those crimes;

(d) A summary of the evidence and any other information which establish reasonable grounds to
believe that the person committed those crimes; and

(e) The reason why the Prosecutor believes that the arrest of the person is necessary.

3. The warrant of arrest shall contain:

(a) The name of the person and any other relevant identifying information;

(b) A specific reference to the crimes within the jurisdiction of the Court for which the person's
arrest is sought; and

(c) A concise statement of the facts which are alleged to constitute those crimes.

4. The warrant of arrest shall remain in effect until otherwise ordered by the Court.

5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest
and surrender of the person under Part 9.

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6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by
modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the
warrant if it is satisfied that there are reasonable grounds to believe that the person committed
the modified or additional crimes.

7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application

requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial
Chamber is satisfied that there are reasonable grounds to believe that the person committed the
crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue
the summons, with or without conditions restricting liberty (other than detention) if provided for
by national law, for the person to appear. The summons shall contain:

(a) The name of the person and any other relevant identifying information;

(b) The specified date on which the person is to appear;

(c) A specific reference to the crimes within the jurisdiction of the Court which the person is
alleged to have committed; and

(d) A concise statement of the facts which are alleged to constitute the crime. The summons shall
be served on the person.

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CONCLUSION

The Pre-Trial Chambers, each of which is composed of either one or three judges, resolve all 8
issues which arise before the trial phase begins. Their role is essentially to supervise how the
Prosecutor carries out his or her investigatory and prosecutorial activities, to guarantee the rights
of suspects, victims and witnesses during the investigatory phase, and to ensure the integrity of
the proceedings. The Pre-Trial Chambers then decide whether or not to issue warrants of arrest
or summons to appear at the Prosecutor’s request and whether or not to confirm the charges
against a person suspected of a crime. They may also decide on the admissibility of situations
and cases and on the participation of victims at the pre-trial stage

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