Fair trial rights at the ICC

  1. Presumption of innocence
  2. Rights of the Defence at the Investigation stage
  3. Right to a fair trial
  4. Right to Counsel
  5. Equality of arms
Presumption of innocence

Article 66 of the Rome Statute states that everyone must be presumed innocent until proven guilty according to the law. This provision constitutes the cornerstone of a fair trial and is also developed in other provisions of the Statute, specifically in article 67(1)(i), which states that no one should have “imposed on him or her any reversal of the burden of proof or any onus of rebuttal.” The corollary of the presumption of innocence is included in the second paragraph of Article 66, namely, placement of the burden of proof beyond reasonable doubt on the Prosecutor.

Rights of the Defence at the Investigation stage

The general rights of the person at the investigation stage are enshrined in Article 55 of the Rome Statute and supplemented by provisions of the Rules of Procedure and Evidence and the Regulations of the Court.   It provides for the person’s right not to incriminate himself or to confess guilt; not to be subjected to any form of coercion, torture or inhumane treatment; to translation; not to be arbitrarily arrested or detained; and the right to be informed in advance that he or she is a potential suspect. Article 55(2) provides for additional guarantees for potential suspects, namely, the right to remain silent, the right to legal assistance and to be questioned in the presence of counsel.

Right to a fair trial

Article 67 of the Rome Statute sets out the minimum yardstick of the defendant’s rights and is a reflection of those provided for in article 14 of the International Covenant on Civil and Political Rights (ICCPR). This provision should be read with reference to other articles in the Statute, especially article 55 providing for the rights of persons during investigations; article 74, which provides for a right to a reasoned judgment, article 21(3), which prescribes that the Statute is to be interpreted in the context of internationally recognized human rights treaties.

Although the rights granted to the Accused in article 67 are included in part VI of the Statute, which relates to trial, it has been interpreted by the judges as applying at all stages of the proceedings. The rights enunciated in article 67(1) include:

  • Right to public hearing before an independent and impartial tribunal
  • The right to be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks (67(1)(a))
  • Right to be tried expeditiously (67(1)(c))
  • Right to counsel (67(1)(d)), including the right to communicate freely with counsel of the accused's choosing in confidence (67(1)(b))
  • To examine, or have examined, the witnesses against him or her / to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute (67(1)(e)
  • The right not to incriminate oneself (67(1)(g))
  • Right to translation (67(1)(f)

 Right to Counsel

The effective right to legal assistance is an essential element of the right to a fair trial. The ICC’s legal framework provides for an accused to be represented by counsel at both trial and investigation stage of the proceedings before the Court [(article 67(1)(d) and 55(2) of the Rome Statute] However, under the Rome Statute defendants at the ICC, like their counterparts at the ad hoc tribunals have the right in principle to represent themselves in proceedings before the Court [art.67(1)(d) of the Statute and rule 21(4) of Rules of Procedure and Evidence]

At the ICC, a person who lacks sufficient means to afford defence counsel is entitled to legal assistance. It is for the Court’s Registrar to determine, upon the defendant’s request, whether the defendant is indigent and thus entitled to legal aid.Legalaid at the ICC covers “all costs reasonably necessary as determined by the Registrar for an effective and efficient defence” [Regulation 83 of the Regulations of the Court]. These include expenses such as remuneration for the counsel and his legal assistants, budget for investigation and related daily subsistence allowance.

For more information on counsel before the ICC click here.

Equality of arms

The Rome Statute does not mention the principle of Equality of Arms explicitly, however the Court’s legal texts contain provisions obliging the Court to ensure an efficient and effective defence (Article 67 Rome Statute). The concept essentially provides that the defence must be provided with the resources to effectively mount a defence and not be at a material disadvantage to the prosecutor.  The ICC is unique in the investigative role ascribed to the Prosecutor to investigate incriminating and exonerating evidence equally. This provision, at least in theory, was envisaged to reduce the inequality, especially in resources, between the defence and the Prosecutor.