Statute as to who has the obligation to protect the rights. The article provides, "In respect of an investigation under this Statute, a person shall not be compelled to incriminate himself or herself or to confess guilt", and so forth. It does not provide that "a State shall ensure that a person is not compelled to incriminate himself..."
Implementation
a) Recognition of rights
Practically speaking, it would be extremely prudent for States Parties to ensure that all of the rights under article 55 (1) & (2) are accorded to persons who are to be arrested on behalf of the ICC, as well as any other rights that are usually accorded to persons who are arrested by national authorities. A "fair hearing conducted impartially" begins when the person is arrested. If they are compelled to incriminate themselves, either by force or otherwise, or they are asked questions in a language they do not understand, then any evidence that is gathered in such a manner and subsequently relied upon to convict the accused, would bring into question the fairness of any such trial.
These rights are all contained in the ICCPR as well, and many States believe that they represent the minimum required standards under international law for a fair trial. In addition, the ICC is intended to bring about justice, and the ill treatment of persons who may be innocent is not just.
States should also review existing legislation to ensure that it prevents anyone from inflicting torture or cruel, inhuman or degrading treatment or punishment on a person under investigation, in accordance with the ICCPR and the Convention Against Torture, which has also received broad support in the international community.
b) Training and provision of relevant personnel
States Parties should train their law enforcement officials to observe these basic minimum standards, if they have not already. States also need to provide resources to pay for legal counsel, in case the person being questioned does not have sufficient means to pay for it. Note however that article 100 (1)(b) provides that States may not have to pay for interpreting and translation services when executing a request from the Court.
c) Segregated prison accommodation and compensation
Optimally speaking, it would also be useful if States Parties could provide segregated prison accommodation for accused persons, unless the person is already in custody for another matter. Also optimally speaking, a scheme for compensating persons who are wrongfully detained or arrested by State authorities should be established by States Parties.
Hearing before a competent judicial authority
Description
Under article 59 (2), once a person is arrested, they must be brought promptly before the competent judicial authority in the custodial State. That authority will then determine the following, in accordance with the law of that State:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
If the judicial authority believes that the warrant does not apply to that person, that the proper process was not followed, or that the person's rights were not respected, then it should consult with the ICC without delay (article 97).
If the person who is the subject of the arrest is already being investigated for the same offence by the State, then the State should notify the Court, in accordance with the procedures outlined above in the section "Procedures where the ICC wishes to investigate the same matter as a State". If the person who is the subject of the arrest is already being investigated, or serving a term of imprisonment, for a different offence, then the requested State is still obliged to grant the request for surrender
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