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Summary Report The Hague, 2 November 2011

International Criminal Procedure Expert Framework

The Concluding Conference of the International Criminal Procedure Expert Framework (IEF) was held on

27 and 28 October 2011 at the Peace Palace in The Hague. Together with more than 200 international

scholars and practitioners, the IEF experts presented the findings of their research entitled „General Rules

and Principles of International Criminal Procedure‟. The Conference was organised by HiiL in cooperation

with the Amsterdam Center for International Law (ACIL). HiiL and ACIL joined forces in 2007 and launched

the International Criminal Procedure Expert Framework.

In concluding this project, the IEF has proffered a systematic set of general rules and principles of

international criminal procedure. Taking a critical and methodical reflection on the recurring problems facing

the international criminal justice system today, the IEF researchers have taken a step back to provide their

constructive suggestions on how these issues must be tackled in an international system of criminal

procedure founded on the rule of law.

Concluding Conference

On Thursday 27 October 2011, the Conference was opened by Dr Sam Muller (director of HiiL), Prof. Göran

Sluiter (IEF project leader) and Prof. Claus Kress (Conference chair). Shortly thereafter, Joris Demmink

(Secretary-General of the Dutch Ministry of Security and Justice and Acting Chair, HiiL Supervisory Board),

delivered a welcoming address underlining the importance of international criminal law, the status of

The Hague as the host of many international judicial institutions, and the importance of increased attention

to the needs and interests of victims in the context of criminal process.

Concluding conference

International Criminal Procedure Expert Framework

27 – 28 October 2011 | Peace Palace | The Hague, The Netherlands

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Following Mr Demmink, Hon. Justice O-Gon Kwon (Judge, ICTY) and Hon. Justice Erik Møse (former

President and Judge, ICTR) addressed the audience with the keynote speeches in which they shared their

theoretical insights and practical experience in the field of international criminal law.

„If international criminal law were a train, then international criminal procedure

would be the rails. In order for the train of international criminal justice to reach

its destination, it is vital that the rails are sturdy, reliable and yet flexible enough

to direct the engine in the right direction.‟

Hon. Justice O-Gon Kwon, ICTY

Throughout the Conference, the commonly shared standards, the general rules and principles, of

international criminal procedure as well as recommendations for the improved criminal process before

international and hybrid criminal jurisdictions were discussed. Over the course of two days, probing

questions were posed and critical comments were made regarding the project results by practitioners and

academics from the discussants and conference participants. Their seminal contributions will be taken into

account by the IEF editors and experts when preparing the project‟s final publication. The publication is

scheduled to appear in 2012 with Oxford University Press.

Working Groups

Working Group 1 presented its chapter setting out the general framework in which international criminal

tribunals are set to operate. This chapter informed the analyses of their procedure and practice carried out

by other Working Groups. The „Framework‟ group addressed, among others, a series of topics underlying

institutional and legal specificity of international criminal courts. These topics include the goals of

international criminal justice, the status of human rights law, the sources of international criminal

procedure, the tribunals‟ dependence on state cooperation and the jurisdictional arrangements between

states and tribunals. During this first session chaired by Mr Håkan Friman (University College London), Dr

Jens David Ohlin (Cornell University) and Dr Sara Nouwen (University of Cambridge) overviewed the findings

of their Working Group in these areas. In her comments on the opening chapter, which set the tone of the

following debate, discussant Prof. Larissa van den Herik (Leiden University) focused on the underlying

assumptions and foundational issues of the project. She also stated that the risks arising from the

continuous fragmentation of international criminal procedure in the divergent legal and institutional contexts

of tribunals are seen as self-contained regimes.

Working Group 2 introduced the IEF chapter on the selection of cases and initiation of investigations. In a

session chaired by Prof. Suzannah Linton (Bangor University), Prof. Margaret DeGuzman (Temple University)

spoke about the difficulty of catching the multifaceted prosecutorial policies regarding the selection of cases

to be brought before the international criminal courts and tribunals by clear cut and detailed procedural

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rules. However, she pointed out a number of overarching principles which guide international prosecutors in

relation to their decisions on selecting cases for prosecution, including equality, non-discrimination,

impartiality independence, and sufficiency of evidence.

Discussant Prof. Morten Bergsmo (PRIO and Georgetown University) questioned whether there indeed exists

a uniform body of international criminal procedure in this area. He also commented on the choice between

the several non-exclusive options for ordering the exercise of prosecutorial discretion, such as: structural

reforms of the trigger mechanisms of the courts‟ jurisdiction, the issuance of transparent prosecutorial

guidelines and the enhancement of the professional character and therewith the quality of selection

decisions.

The findings of Working Group 3 were presented at the conference by Prof. Göran Sluiter and Mr Karel de

Meester (University of Amsterdam). They addressed the topics of investigation, coercive measures, arrest

and surrender, and remedies for procedural violations at the pre-trial stage. The working group‟s findings

indicate that the rules on arrest and provisional detention and release differ substantially among

international courts. Moreover, the consistency of certain aspects of international criminal practice with

human rights is questionable. This led the Working Group to advance a number of recommendations aimed

at addressing these deficiencies. For example, the Working Group recommended introducing fixed terms to

limit the length of pre-trial detention and expressly prohibiting the use of deception during interrogations.

The critical comments on the Working Group‟s report and recommendations were delivered by discussant

Prof. Megan Fairlie (Florida International University), followed by a lively debate in which the audience took

a most active part.

The next session, chaired by Prof. Göran Sluiter (University of Amsterdam), Ms Helen Brady (ICTY) and Mr

Fabricio Guariglia (ICC) presented the findings of Working Group 4. The report focused on the subjects of

charges, confirmation of charges, iura novit curia, res judicata and lis pendens. They found, inter alia, that,

while the standards governing the process of bringing the charges differ among international criminal courts,

the confirmation of charges is subject to a more uniform regime. Discussant Mr Norman Farrell (ICTY)

offered several specific comments on the Working Group‟s conclusions and a general advice that the

seemingly uniform court procedures must not necessarily attract the status of general principles.

The focal point of Working Group 5 was the topic of organisation of trial process. During the session

chaired by Mr Håkan Friman (University College London), Prof. Nancy Combs (William & Mary University)

gave a compressed overview of the Working Group‟s conclusions in the areas of joinder and severance,

single and bifurcated process, the basic elements of trial chronology, and the residual issues relating to the

trial functions and duties of judges and witnesses. The questions posed by discussant Prof. Maximo Langer

(UCLA) concerned, among others, the structure of the Working Group‟s voluminous report and the

uniformity of approach in identifying principles and rules throughout various sections. In particular, he

argued that the Working Group should have considered the right of accused to a fair trial and the minimum

guarantees as a separate topic, as this may have enabled the researchers to discern additional and

important general rules and principles in this area.

The issues of appeals and review were addressed by Working Group 6. During the session, chaired by

Prof. Suzannah Linton, Prof. John Jackson (University College Dublin) outlined their chapter. Taking a

minimalist approach and focusing on the ICTY, ICTR, SCSL and ICC, the Working Group found a general

right to review of administrative decisions. However, only parties to the proceedings may have standing to

appeal or review. The most controversial recommendation coming from the Working Group, however, was

the suggestion that an additional replacement layer of appellate review is necessary. Discussant Dr Yassin

M‟Boge (University College Dublin) found several issues with the chapter, as presented. Primarily, Dr M‟Boge

finds the absence of discussion regarding appeals at the ECCC, SCSL and the East Timor Tribunal

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problematic, as it disregards the lowest common denominator factor in its methodology. Going further, she

argued that adding a new layer of appellant judges, as was proposed by the Working Group, would only

move existing problems and not solve them. She claimed that it would be best that these problems are

solved independently, before creating another layer of review.

Working Group 7, chaired by Mr Håkan Friman (University College London), took on the topic of the law of

evidence. Dr Mark Klamberg (Stockholm University) and Mr Fergal Gaynor (ICTY) discussed the position of

the law of evidence in international criminal procedure. A general principle identified by the Working Group

indicated that international judges have wide discretion to decide on admissibility, relevance and probability

of evidence. In recommending that international courts dispense with direct examination, with exceptions,

instead admitting a signed witness statement, the Working Group provides for the expedition of the trial

process. Discussant Mr Mark Harmon (Formerly ICTY) indicated that the clash between civil law and

common law practitioners is a consequence of current rules of procedure. Mr Harmon then shared his

conviction that, with the improving efficiency of international courts in the area of evidence comes the

danger of creating “paper cases” and losing sight of the individuals standing before the courts.

„Whose trial is it? It is fundamentally the trial of the accused, next to the accused

come the victims. Other players are subordinate; not without significance, but their

significance should not dominate.‟

Hon. Justice David Baragwanath, Special Tribunal for Lebanon

Chaired by Prof. Göran Sluiter, Working Group 8‟s findings on deliberation, dissent and judgements was

presented by Prof. Nina Jørgensen (Chinese University of Hong Kong). They agreed that, although a

consensus has been reached on some procedural aspects, there were unsettled issues across the

international courts. One example being the issue of timing and time limits of court proceedings. In its

recommendations, the Working Group indicated that transparency in deliberations could expose any lack of

integrity in the process in the interests of fair trial rights. They also stated that, while there is a preference

for unanimity in deliberations, the role of dissenting opinions should not be lessened by the tribunal,

indicating that dissenting opinions should be included in the majority decision, in the name of transparency.

In an inspiring address, Discussant Hon. Justice David Baragwanath (Special Tribunal for Lebanon),

commented on these time frames by stating that judges should, if possible, give a succinct and

understandable judgment immediately after the court hearings. In doing so, they should keep in mind that a

good judgement starts from a helicopter view to identify essential issues and then a succinct account of

facts.

Working Group 9 was tasked with defence issues. Chaired by Dr Sam Muller (Director of HiiL), Dr Till Gut

(University of Cologne) clarified the issues raised by the Working Group in this area. He commented that

defence issues have been somewhat neglected in international criminal law and closer attention should be

paid. More specifically, the Working Group states that the most controversial issues, self representation,

equality of arms, and legal aid, are prime examples of what can go wrong with trials. They proffered the

recommendation that the Special Tribunal for Lebanon model for the defence office is the preferable one.

However an in-house public defence office was not recommended, as there is room for external defence

within international criminal law. Discussant Mr Rupert Skilbeck (Open Society Justice Initiative) proffered

the recommendation that human rights law should have a more prominent place in the affairs of the

international tribunals. He also indicated that the chapter should include analysis of detention issues and

defence relations with secondary institutions. This was followed by a large discussion, involving many

present, indicating a need for reform in the defence sector, more specifically the remuneration of defence

counsel and legal officers.

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On behalf of Working Group 10, chaired by Mr Håkan Friman (University College London), Dr Mikaela

Heikkilä (Åbo Akademi University) focused on victim participation. The group found that there are no readily

apparent principles or rules related to this theme. This invites more uniform guidelines on the specific stage

in which victims can participate. However, in cases of reparations and protection, it is clear that victims have

an interest in participation. In its findings, the Working Group also found that no tribunal allows a free right

of the victim to put forward any evidence they like. Discussant Mr Alain Grellet (STL) indicated that a right

to victim participation seems to be established in national legal systems. However, one should not copy and

paste them into the international legal system. He also stated that there is a great difficulty in allowing for a

high number of victims to participate, which is a common reality for international courts dealing with mass

crimes. Mr Grellet indicated that this could be mitigated by allowing victims to be organised and represented

as groups, rather than individual victims. He later went on to mention that there should be more focus on

the often dual position of victims as witnesses.

Working Group 11 confronted the subject of negotiated justice. Chaired by Prof. Suzannah Linton (Bangor

University), Prof. Thomas Weigend (University of Cologne) and Prof. Jenia Iontcheva Turner (SMU Dedman)

presented the group‟s findings. They found that all of the studied tribunals, save the ECCC, allow for

unequivocal admissions of guilt. The group recommends there shouldn‟t be excessive sentence differentials

between trial verdicts and guilty pleas. Going further, they stated that international courts should consider

setting up specific rules as to the size of a sentence reduction following a guilty plea. Discussant Prof. Elies

van Sliedregt (VU University Amsterdam) agrees that there is a positive attitude towards plea bargains.

However, allowing, and sometimes even promoting, guilty pleas can come into conflict with truth-finding.

She further elaborated that when relying on plea bargaining and admission of guilt, one needs to look at the

importance of the accused, with a focus on trying high level defendants.

„We want the truth established. We want to know how such a gruesome event could

take place. (…) We want to have it settled; to have something to base ourselves on

in the further work for human rights and international justice.‟

Hon. Justice Erik Møse, former President, ICTR

Following the presentations and discussions of the working groups, a high-level panel discussion was held.

Hon. Justice Motoo Noguchi (ECCC), Hon. Justice Stefan Trechsel (ICTY), Hon. Justice Ines Weinberg de

Roca (United Nations Appeal Tribunal), Hon. Justice Erik Møse (Formerly ICTR) and Hon. Justice Fatoumata

Dembele Diarra (ICC) shared their inspiring concluding remarks and recommendations with the conference‟s

participants.

The conference was concluded by Prof. Kai Ambos (University of Göttingen), sharing his observations on the

conference and the ICP-EF project in general. Closing remarks were made by Prof. Claus Kress and Prof.

Göran Sluiter.

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„I have rarely seen an expert group at the end of such a long parcours, exposing

itself to such rigorous criticism by highly competent, very impressive scholars and

practitioners as was the case here. They [commented] in a noble and collegiate

manner as regards to the form, but on substance they have not been generous;

they have been rigorous.‟

Prof. Claus Kress, University of Cologne, Conference Chair

HiiL is extremely satisfied with the conference‟s results and is certain that they will contribute to the ICP-EF

research as well as the development of international criminal law in general.

Publication

The Framework‟s findings will be compiled in the volume General Rules and Principles of International

Criminal Procedure, which is the world‟s first study of all existing procedures in every international and

internationalised court and tribunal. Its outcomes will benefit the accused, victims and witnesses, as well as

national and international regulators and policy-makers and will help national courts and tribunals maximize

their capacity to prosecute international crimes.

Hague Institute for the Internationalisation of Law

Anna van Saksenlaan 51,

P.O. Box 93033

2509 AA The Hague, The Netherlands

Tel: +31 70 349 4405

E-mail: info@hiil.org

www.hiil.org