r.
Implementation
Where States already have legislation on mutual legal assistance, they may only need to make minor amendments to such legislation, to allow them to meet their obligations under these provisions. Other States should adopt laws and procedures to provide for transportation through their territory of a person being surrendered by another State. States Parties laws and procedures must provide 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, the law should provide for cases where an unscheduled landing does occur. Ideally, the transit State would allow the continuation of the transit very quickly after the reason for the unscheduled landing is dealt with. The transit State should ensure that the laws provide for keeping the surrendered person in transit in custody for up to 96 hours while in the country for the unscheduled landing. Note that under article 100 (1)(e), States may not have to pay the costs "associated with the transport of a person being surrendered to the Court by a custodial State". States should also consider applying the same provisions to the transit of convicted persons through their territory.
3.9 Collecting and Preserving Evidence
Admissibility of evidence before the ICC
Description
The Court has the power to decide whether certain evidence should be admitted or not, taking into account the need for a fair trial (articles 64 (9) & 69 (4)). Article 69 (7) provides that evidence shall not be admissible where it has been obtained by means of a violation of the Rome Statute or internationally recognised human rights, if
(a) the violation casts substantial doubt on the reliability of the evidence; or
(b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.
This means that the Court will not be allowed to take into account any such evidence, when making its decisions. Therefore, States need to be familiar with the relevant provisions of the Rome Statute and internationally recognised human rights standards, to ensure that any evidence collected by the State on behalf of the Court is going to be acceptable to the Court and that the State's efforts have not been wasted.
The relevant provisions of the Statute includes article 66, which states that accused persons will be presumed innocent until proven guilty before the Court, with the onus on the Prosecutor to prove to the Court the guilt of the accused beyond a reasonable doubt, if the Court is to convict the person. At the same time, the Court must ensure that every trial is a fair trial, conducted impartially (article 67 (1)).
With this in mind, the Prosecution must disclose any evidence in its possession to the defence, where such evidence shows the accused may be innocent, or suggests that the Prosecution evidence may be less than credible (article 67 (2)). The defence is entitled to challenge the evidence that the Prosecutor presents, and the manner in which it was collected, in the interests of due process. The defence must also have the opportunity to present as much evidence as it believes is necessary to ensure that the Court has all the relevant facts before it, prior to passing judgement on the accused (articles 67 (1)(e) & 69 (3)). In addition, the Court itself has the authority to request the submission or production of any evidence that it considers necessary for the determination of the truth (articles 64 (6)(d) & 69 (3)).
In all cases, the quality and quantity of the evidence that both the Prosecutor and the defence are able to present to the Court will have a major impact on the number of successful and just convictions. For this reason, States Parties must be prepared to assist the Court in eve
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