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General Principles

  1. Rights of the Accused
    1. presumption of innocence
    2. interim release pending trial
    3. if detained, to be kept separately from those who have been convicted
    4. to remain silent during the investigation and during trial, without such silence being a consideration in the determination of guilt or innocence
    5. to be informed in detail of the nature, cause and content of the allegations against him
    6. duty of the prosecution to disclose relevant material to the defense
    7. to have counsel of choice
    8. to communicate freely with counsel of one’s choosing
    9. right to a fair trial including “equality of arms” (each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at an appreciable disadvantage vis-à-vis his opponent)
    10. to have adequate time and facilities for the preparation of his defense
    11. all hearings and the trial must be conducted impartially and without prejudice and bias
    12. right to call witnesses
    13. to present evidence
    14. to be tried in public
    15. to examine witnesses
    16. to be tried without undue delay
    17. to be present at trial
    18. to benefit from the services of an interpreter if required
    19. right to make an unsworn statement
    20. protection against any reversal of the burden of proof
    21. prosecution has the burden of proof
    22. proof sufficient for conviction must be beyond a reasonable doubt
    23. majority vote for the finding of guilt
    24. grounds for appeal which are wider in scope for the defense than for the prosecution

  2. Individual criminal responsibility
    The ICC is concerned with trying and punishing individuals, not states. ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can provisions of international law he enforced’, wrote the Nuremberg Tribunal in 1946.

    The Court targets major criminals responsible for large-scale atrocities. Most of the accused will not be the much lower ranking, actual perpetrators of the crimes but rather those who organize, plan and incite the crime. The Court approaches a targeted individual either as considering him a planner and organizer, a “principal offender”, or as an “accomplice” who aids or abets the principal offender.

    The Court recognizes the concepts of conspiracy (requiring an overt act), common purpose complicity and joint criminal enterprise.

  3. Responsibility of Commanders and Other Superiors
    The Court recognizes the concept of command responsibility. The responsibility extends to military and civilian superiors alike. In order to incur culpability a military commander must know or “should have known” that a subordinate was (1) about to commit such acts, or (2) had done so and the superior either (a) failed to take the necessary and reasonable measures to prevent such acts, or (b) to punish the perpetrators.

    Guilt of a civilian superior must meet a higher standard. The prosecution must prove that the civilian superior had actual or ‘constructive’ knowledge of the crimes being committed.

  4. Statutory Limitation
    The Rome Statute provides that crimes within its jurisdiction shall not be subject to any statute of limitations.

    Because there is no statutory limitation, some scholars theorize that Article 29 is directed more at national limitation. Many domestic criminal law systems provide for the statutory limitation of crimes, even the most serious. For example, under French law, the statute of limitations for murder is 10 years.

    Article 29 acts as a bar to states who might refuse to surrender offenders on the grounds that the offense was time-barred under national legislation.

    The United Nations multilateral Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, as well as the Council of Europe’s European Convention on the Non-applicability of Statutory Limitation to Crimes Against Humanity and War Crimes have not been particularly popular. The United Nations treaty has less than fifty States Parties. Article 29 may have more of an effect on the prohibition of statutory limitations than the international treaties.