not compromised, States should respect the following rights of the person they are arresting, in accordance with article 55 (2):
(a) To be informed, prior to being questioned on any matter including as to the person's identity, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it;
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
These are the minimum rights under the Statute and States may of course provide more extensive rights to such persons. In addition, States Parties should take note of the following rights that are set out in article 55 (1) and apply to everyone involved in an ICC investigation:
"In respect of an investigation under the Statute:
(a) A person shall not be compelled to incriminate himself or herself or to confess guilt;
(b) A person shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) A person shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) A person shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in the Rome Statute.
In accordance with article 10 of the International Covenant on Civil and Political Rights (ICCPR), it would also be advisable to ensure that, if the person is to be detained prior to being brought before the competent judicial authority, the person be segregated from convicted persons and subject to separate treatment appropriate to their status as unconvicted persons, save in exceptional circumstances and where the person was already subject to detention as a convicted person. This is a right that is guaranteed to all persons under the ICCPR, which has received broad international support. Note also article 85 (1), which provides: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." This refers to a right to compensation by the ICC, but States may wish to make provision for such compensation at the national level as well.
Obligations
a) The rights in Article 55 (2) must be observed by States where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9. These rights must be communicated to the person prior to being questioned and they include: being informed that there are grounds to believe the person has committed an ICC crime; remaining silent without any inferences being drawn as to guilt or innocence; having legal assistance which must be free if the person cannot afford to pay for it; and having counsel present when being questioned.
b) At present there are differing views within the international community as to whether or not the rights set out in article 55 (1) create obligations for States. These rights are couched in obligatory terms, because the word "shall" is included. However, it is not clear from the
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