reserving evidence for the ICC will probably need to be trained in any new procedures that are introduced. In particular, the rights of all persons being questioned must be respected, in order to ensure a fair trial for all.
In order to assist the Court, States should attempt to ensure that privileged communications are not required to be disclosed by anyone. The best way to ensure this is to make sure that none of their laws require the disclosure of such communications, particularly as part of an ICC investigation. The relevant persons should be entitled to bring a claim before a judicial authority, if someone is about to disclose one of these communications, or refuses to return a copy of it that they have obtained without the person's permission. In the same way, the ICC will not accept secretly recorded evidence of such communications, unless the relevant person waives their privilege.
Requests for assistance with evidence
Description
States may be requested to assist with the provision of information and the collection and preservation of evidence at several stages of ICC proceedings.
Investigations
Prior to the commencement of an investigation, the Prosecutor can request more information from a State when analysing the seriousness of information already received concerning an alleged crime (article 15 (2)). Once the investigation has commenced, the Prosecutor can seek the co-operation of any State and enter into arrangements with States in order to facilitate co-operation throughout the investigation (article 54 (3)(c) & (d)). The Prosecutor can request the Pre-Trial Chamber to issue any orders or warrants required to carry out the investigation (article 57 (3)(a)). Note that the Pre-Trial Chamber also has the power to issue orders and seek State co-operation with respect to the preparation of the defence case, at the request of the accused person (article 57 (3)(b)).
The Prosecutor may also execute requests on State territory in certain limited circumstances. Under article 57 (3)(d), the Pre-Trial Chamber may authorise the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the co-operation of the State Party, if the Chamber has determined that the State's judicial system and other forms of authority are clearly unable to meet any request for co-operation due to the unavailability of such systems of authority, such as during situations of armed conflict. The Pre-Trial Chamber is encouraged to consult with the State Party if possible, before authorising the Prosecutor. Under Article 99 (4), the Prosecutor may execute requests that do not require compulsory measures, such as taking evidence on a voluntary basis. Where the ICC has not yet determined whether the case is admissible, the Prosecutor needs to consult with the State Party first and observe any reasonable conditions or concerns raised by that State Party.
Hearings
The Pre-Trial Chamber can order the disclosure of information to the defence prior to the confirmation hearing, which may include some of the evidence on which the Prosecutor intends to rely at the hearing (article 61 (3)). So the Prosecutor may need to ask States to assist with such disclosure, if the relevant evidence is still in their custody. Similarly, once a case has been assigned to the Trial Chamber, that Chamber may provide for disclosure of documents or information not previously disclosed, "sufficiently in advance of the commencement of the trial to enable adequate preparation for trial" (article 64 (3)(c)).
Finally, States may also be requested to assist the Trial Chamber with the "attendance and testimony of witnesses and production of documents and other evidence" prior to and during the trial (articles 64 (6) & 69 (3)).
Requests made at all of thes
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