appearing before the ICC will be tried by a three-judge Trial Chamber. The ICTY/R function in the same way. Constitutional problems should not result, however, because generally speaking this right does not apply with respect to extradition to a foreign jurisdiction. For example, in Reid v. Covert (354 U.S. 1, 6 1957), the United States Supreme Court found that the right to trial by jury should not be interpreted in such a way as to prevent the extradition of an American citizen to face trial in another jurisdiction. An individual may have the right to be judged by a jury before judicial authorities of their own State, but may not necessarily enjoy this right in other jurisdictions. This rule should be applied in the case of the ICC, because it does not constitute a foreign jurisdiction, but is rather an international jurisdiction that the States Parties have decided to vest with specific powers. Moreover, the guarantees of judicial independence and competency provided by the Rome Statute are sufficient to guarantee an accused person a fair trial despite the absence of a jury.
Obligations
States Parties to the Statute must be able to surrender a person to the ICC when requested, in conformity with the provisions of the Statute, even though the person may have a constitutional right to a trial by jury.
Implementation
States Parties may need to review their constitutions and existing jurisprudence on the right to trial by jury, to ensure that this would not create a barrier to surrender to the ICC. For example, they may find that the right only applies when nationals are being tried by State courts. If an amendment to the constitution is required, this could simply provide that surrender to the ICC is an exception to the usual principle that every citizen of that State must be tried by a jury.
3.8 Allowing Suspects to be Transported Across State
Territory En Route to the ICC
Description
Under article 89 (3)(a), a State Party must authorise, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. Article 89 (3)(b) sets out the required contents of a request by the Court for transit.
Article 89 (3)(c) states that the person being transported must be detained in custody during the period of transit. Article 89 (3)(d) stipulates that no authorisation is required if the person is transported by air and no landing is scheduled on the territory of the transit State. However, under article 89 (3)(e), if an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court. The transit State must detain the person being transported until the request for transit is received and the transit is effected, provided that detention is not more than 96 hours from the unscheduled landing unless the request is received during that time. Although this is not mentioned in the Statute. States Parties should also allow for convicted persons to be transported through their territory, en route to the State where they will be serving their sentence.
Obligations
a) A State must ensure that its laws provides for transportation through its territory of a person being surrendered to the Court by another State.
b) These laws must not require authorisation if the person is transported by air and no landing is scheduled on the territory of the transit State.
c) If an unscheduled landing does occur, the transit State must detain the person being transported, for up to 96 hours unless a request for transit is received during that time.
d) If a request for transit is received, the detention may be for longe
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