e stages of the process require a prompt response from States, if the Court is going to function efficiently and effectively. Note that the Court can also make an urgent request for the production of documents or evidence and these must be sent urgently (article 99 (2)). In addition, under article 99 (1), the Court may request that certain persons be present when a request for evidence is being executed.
Obligations
a) States Parties must comply with all requests for assistance in providing evidence and information, whether these requests are made by the Prosecutor, the Pre-Trial Chamber, or other chambers of the Court (article 93). However, States may not have to comply where national security concerns are involved (articles 72, 93 (4) & 99(5), or where execution of the request is prohibited in the requested State on the basis of an existing fundamental legal principle of general application (article 93 (3)).
b) If the Court makes an urgent request and requires an urgent response, States Parties must respond with urgency (article 99 (2)).
c) Requests for assistance must be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request. This may include following any procedure outlined in the request, or permitting persons specified in the request to be present at and to assist in the execution process (article 99 (1)).
Implementation
a) State laws need to recognise the right of the Prosecutor, the Pre-Trial Chamber, and the Trial Chamber to make requests for assistance with various types of evidence and the provision of information, including evidence for the defence.
b) States need to have a procedure in place to ensure that all requests for such assistance are directed to the appropriate authority as soon as possible after they are received, so that the assistance can be provided expeditiously at all stages of investigations and Court proceedings.
Testimonial evidence and other evidence concerning
specific persons
Description
Most witnesses who agree to give evidence during ICC proceedings are required to give it in person, unless the Court orders otherwise. However, the Court may allow the presentation of the recorded testimony of a witness, either by video or audio technology (article 69 (2)). Before testifying, each witness must give an undertaking as to the truthfulness of the evidence they are about to give (article 69 (1)).
The ICC does not have the power to order witnesses to testify. This was one of the compromises made in Rome when the Statute was finalised. But the Rome Statute tries to compensate for this by providing for extensive protections for witnesses who do agree to testify, particularly victims. For example, the Court will have a special Victims & Witnesses Unit, to deal with the concerns of all witnesses (article 43 (6)). Article 93 (2) also provides that witnesses and experts appearing before the Court will not be prosecuted, detained, or subjected to any restriction of personal freedom by the Court for anything they may have done prior to their departure from the requested State. In addition, the Court can request States to "facilitate the voluntary appearance of persons as witnesses or experts before the Court", so that witnesses are actively encouraged to attend the Court (article 93 (1)(e)). However, article 100 (1)(a) provides that the Court will bear the costs associated with the travel and security of witnesses and experts.
At the same time, both the Pre-Trial Chamber and the Trial Chamber can provide for the protection of accused persons (articles 57 (3)(c) & 64 (6)(e)). The Court may request States to assist with this protection, in order to ensure that the person is brought to trial unharmed.
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