The Procedures And Rules Of Evidence Of The Rome Statute

The Roman Statute of the International Criminal Court (the Statue) which opened for ratification in 1998, creates a series of new international criminal justice standards, and appropriately combines the substantial and procedural rules as an integrated whole in the field of international criminal justice.The Statute consists of the main body and another two attachments named separately the Elements of Crime and the Rules of Procedure and Evidence (the Procedure). The Statue is currently the most complete international criminal code. Though it regulates only genocide, the crimes against humanity, the crimes of war and the crimes of aggression, which are all the most serious crimes of concern to the international community as a whole, but the international criminal justice principles, the function and status of the permanent criminal court and the special jurisdiction principles it creates, will pay a large role in the development of future criminal system.This dissertation consists of 7 chapters:In chapter I, the author discusses the historical rule of mutual conflicts and combination between civil law and common law systems, explains the necessity for the Statue and the Procedure to combine the procedural and evidential rules of civil law tradition and common law tradition by exploring the history of the international criminal justice. Germanen law and Roman law are the common origin of the two major legal systems, which provides historical basis for the Statute to combine the procedural and evidential rules of the two legal systems. The failure of the Leipzig trial and the Istanbul trial proved that the trial of international crime by domestic court was not workable for its complexity and the close relation with the international politics. The Nuremberg trial and the Tokyo trial held after the World War II got rid of the restriction of domestic trial, made history for individual international criminal liability, and laid the foundation for establishing a stable international criminal trail system. In 1990's UN established the ICTY and the ICTR, which accumulated rich experiences while consumed a lot of sources of the UN. The international community got the idea of establishing an international court by learning successful experiences as well as failures. The Statute is the result of extensive participation and discussion. The combination is necessary to win the support of most of the countries and also the experience of ICTY and ICTR. However, there are a lot of differences for procedural rules between the civil law and common law tradition. It's surely not easy for the Statue to combines them and adjusts the conflicts among them. The international criminal trial itself is especially complex and affects greatly by the international politics, which decides that the Roman Statute must innovate as well as interaction.In chapterâ…¡the author focuses on the function and operation of the prosecutor. In the International Criminal Court (the Court), there is a through integration of the police and prosecutor, as there is no police organ or police, and the prosecutor in charge of the investigation, prosecution and international cooperation. The state party and the Security Council may submit situations to the Court and at the same time the prosecutor can initiate an investigation proprio motu. The prosecutor enjoys discretion when performing its duty, but the pre-trial court has the final say. The Court emphasizes the prosecutor's objectiveness to establish the truth, as the prosecutor must investigate incriminating and exonerating circumstances equally. The prosecutor has the obligation not to disclose documents or information provided by countries of international organizations on the condition of confidentiality; however the prosecutor also has the obligation to discovery material to the defense, which caused conflicts in the first case-the Lubange case. The Court is a giant without hands or feet, international cooperation and judicial assistance is very important. If the prosecutor couldn't get effective cooperation and assistance, his job will be greatly hampered.In chapter III the author analyzes the rights of the person and accused and the rights and compensation of victims. The Statue endows full rights of a just trial for the person and the accused. In this chapter the author focuses only on the right of defense. The person and the accused enjoy the help of attorney from the start of the investigation, and for those who couldn't afford an attorney, the Court will provide them attorneys for free. The attorney can conduct investigation, submit witness and establish the defense case. However the privileges and immunities of the attorney are much limited comparing with the prosecutor, which will hinder the attorney to investigation effectively. The accused could defense by himself according to the Statue.The victim enjoys full protection from the Statue, who enjoys the rights of a quasi-party. The victims could participate in the procedure as long as he submit an application to the court and win admission from the judges, and he can also hire an attorney to represent him. In practice, the court allows the victim to participate in the investigation of the situation. There are also problems for participation of the victim, causing chaos of litigation structure and delay the procedure. The Court may restrict properly on the participation of the victim and require the representation of attorneys to resolve the above problems. The victim enjoys a broad compensation pact, including material and mental damages. The Statue specially set up the Victim Trust Fund (The Fund) to hand the compensation and restitution for the victim. The Fund gets fund both from confiscation and compensation from the criminals, and from donation of the international community. They provide help not only for victim who participates in the procedure but also those who don't.In Chapter IV the author discusses the functions and powers of the pre-trial chamber. In addition to issue orders and warrants, the main functions of the pre-trial chamber are to check the power of the prosecutor, ensure the equality of arms and confirm the charges. In order to protect the right of the defense, the pre-trial might also take measures to collect or preserve evidence. When we examine the first case handling by the Court, we will find that efficiency is the most disturbing problems, and pre-trial detention especially calls for a fast trial, so the pre-trial must take measures to expedite the procedure. By learning the experiences of ICTY, the pre-trial chamber might strengthen procedural control, especially by supervising the investigation, and properly resist the interlocutory appeals.In chapter V the author explores the structure of courtroom trials and the functions and powers of the trial chambers. The goals of litigation confine trial mode. There are too many goals for ICC which includes recording history, promoting and reestablishing peace, comforting the victim and stopping the impunity and so on. Those goals will exacerbate the problem of low efficiency. The author purposes that the goal should be stopping impunity by just procedure, and so we needn't hesitate on whether to take the adversarial or inquisitorial mode. We must fully take into account of the features of international criminal trials and borrow the best from both modes. The structure of trial in the Court is adversarial, but there isn't a jury, or negative judges. The judges are both positive and negative in the trials, as the negotiation between the prosecutor and accused is not bounding to the court, and the court may call witnesses and require the parties to provide all necessary evidences, there are cross-examination and the judges may ask question before or after the cross-examination.In chapterâ…¥the author inquires into the evidence rules of the Statue. The Statue integrates the evidence rules of common law as well as the free principle of evidence of civil law, but it doesn't adopt the complex evidence rules of the common law tradition for there is no jury trial in ICC. There is no foundation for the international trial to adopt the complex jury system. The author then focuses on the regulation on witness, especially the condition for adopting written statements, and the evidential theory connected with the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts.In chapterâ…¦the author explores what China can learn from the Statue. Broadly speaking, the Statue highly emphasis the idea of due process and combines the substantial, procedural and evidential rules in one code, which are of borrowing significance for China. The safeguard for the right of defense, and the full protection to victim provided by the Statue are all of borrowing values for China's criminal procedure.As a conclusion, the particular procedural regulation of the Statue might find its trace from common law or civil law, however, the procedures of the Statue are unique. From the prospective of pre-trial procedure, the prosecutor and the defense enjoy parallel investigation, while the prosecutor has the obligation of objectiveness to truth. The pre-trial chamber supervises the activities of the prosecutor and ensures the equality of arms. From the perspective of trial procedures, the prosecutor case and the defense case fight before the judge, and at the same time, the judges positively control the progress of the trials. From the perspective of evidence rules, the Statue emphasis the free rules of evidence. It's appropriate for Chinese government keeps prudent attitude on whether to accede to the Statute, by observing and examining the operation and practice of the Court.