The parties as participants in the international criminal proceedings

Sedova Dar'ya Alekseevna ORCID: 0009-0003-2905-9938 Graduate student of the Department of Criminal and Criminal Procedure Law and Law Enforcement, Institute of Legislation and Comparative Law under the Government of the Russian Federation 107078, Russia, Moscow region, Moscow, trans. Bolshoy Kharitonevsky, 22-24, of. p. 1A, 1BV darya.sedowa@yandex.ru

Introduction. The creation of an International Criminal Court operating on a permanent basis was preceded by the development of theoretical provisions and the formation of practical grounds for the concept of participation of the parties in the international criminal process. The International Military Tribunal (hereinafter referred to as the ICC), established in 1945, was endowed with the right to bring individuals to individual criminal responsibility, regardless of who exactly and on whose territory the crime was committed. At the same time, the Statute of the Ministry of Internal Affairs revealed the rights and obligations of the defense, represented by the accused and their defenders, as well as the prosecution, represented by the prosecutors, reflecting the classic approach to building an adversarial model of the process.

In this part, the experience of the Ministry of Internal Affairs was largely taken into account when creating the International Tribunal for Rwanda (hereinafter – the ICTR) and the International Tribunal for the Former Yugoslavia (hereinafter – the ICTY). Their constituent documents developed the provisions of the Statute of the Ministry of Internal Affairs, designating among the participants also victims (witnesses), who from this historical moment in the international criminal process gradually began to acquire the status of a party. Thus, in the Rome Statute of the International Criminal Court (hereinafter – the ICC), victims are referred to as an independent party in the proceedings. Moreover, the structural evolution of the foundations of the classical approach to understanding competition described above has led to the emergence of a third party among the participants in the international criminal process, the status of which has not been fully clarified.

1. Formation and development of the concept of participation of the parties in the international criminal process

1.1. The analysis of the concept of participation of the parties in international criminal proceedings should begin with the Ministry of Internal Affairs, in the Charter of which for the first time not only the substantive and organizational and legal foundations of the institution's activities were defined, but also the procedural and legal (judicial) functions, including the rights and obligations of the parties to the process, procedural guarantees for the defendants, general provisions on evidence and proof, the procedure of legal proceedings, general provisions on the verdict ^[3].

According to Article 3 of the Statute of the Ministry of Internal Affairs, the prosecution and the defense were singled out, who had their own procedural rights and obligations. In addition, such a participant in the process stood out as a witness ^[6], who could testify and provide important information to the court in the case. 

The duties of the main prosecutors, in accordance with the provisions of Article 15 of the Statute of the Ministry of Internal Affairs, were to investigate, collect and present to the court all necessary evidence, prepare an indictment for approval by the Committee, conduct preliminary interrogation of witnesses and defendants, act as prosecutors in court, appoint commissioners to perform such duties as they will be assigned ^[15].

Despite the severity of the crimes that fell within the jurisdiction of the Ministry of Internal Affairs, the defendant's right to protection was respected. The defendants were given an unlimited opportunity to give explanations to the Ministry of Internal Affairs, to petition for the summoning of witnesses and the demand for documents; the defendants' defenders cross-examined prosecution witnesses; finally, the defendants spoke before the court with the last word after the prosecutors' speech ^[7].

The Ministry of Internal Affairs steadily demanded that the prosecutors hand over to the defense, not in one, but in many copies, copies of all documentary evidence of the prosecution, assist the defenders in finding and obtaining documents, and deliver to Nuremberg witnesses whom the lawyers wanted to call. In addition, in many cases, the Ministry of Internal Affairs provided additional opportunities for the defense to perform their duties by lawyers ^[20]. 

Thus, the MBT reflected the classical approach to understanding competition. The court, as well as the defense and prosecution sides, took part in the criminal case ^[10].

1.2. The establishment of the Tribunals in the 1990s was welcomed in academic and political circles as an important and necessary step towards eliminating impunity for the most serious crimes ^[8]. The ICTR and ICTY took into account the experience of the Ministry of Internal Affairs, while the proceedings were initially built on the example of the Anglo-Saxon adversarial process with an "American accent" ^[12].

The ICTR and the ICTY consisted of the following bodies:

(a) Chambers comprising three Trial Chambers and an Appeals Chamber;

(b) The Prosecutor;

(c) The Secretariat.

From the analysis of the provisions of the statutory documents of the ICTR and the ICTY, it can be concluded that in the criminal proceedings in these Tribunals, the defense and the prosecution were particularly distinguished. The accused, representing the defense side at the trial, had the right to a fair and public hearing of the case when considering the criminal charge against him. The accused was considered innocent until proven guilty ^[14].

The prosecution, represented by the Prosecutor, was responsible for investigating and prosecuting persons responsible for serious violations of international humanitarian law committed on the territory of Rwanda and the former Yugoslavia.

However, in addition to these participants, the structure of the statutory documents of the ICTR and the ICTY reflected the provisions on victims and witnesses. Article 21 of the ICTR Statute and Article 22 of the ICTY Statute provided for measures to protect them, including conducting closed proceedings and keeping the identity of the victim (witness) secret ^[13]. Such measures were applied during the consideration of the Tadic case at the ICTY. (The Tribunal is trying to balance the interests of the accused and the interests of the witnesses. He puts forward five rather strict conditions that allow the identity of witnesses to be kept secret. Along with the Tribunal's decision, there is a very reasoned dissenting opinion of Judge Stephen, which is strictly based on the concept of fair trial, close to the Anglo-Saxon concept.) In the practice of the MTR, measures to protect victims (witnesses) were not applied. (For the first time, the International Tribunal for Rwanda heard witnesses on January 17, 1997, when considering the Akayezu case.) Nevertheless, the practice of the ICTR and the ICTY confirmed that not only the accused representing the defense side needs protection and assistance, but also such participants in the process as victims (witnesses), who subsequently in the process of structural evolution The concepts of the parties' participation in the process were elevated to the status of a party.

The above suggests that the activities of the ICTY and the ICTR have determined the subsequent vector of development of the concept of participation of the parties in the international criminal process. It is noteworthy that this assumption is confirmed when referring to the analysis of the provisions of the Rome Statute of the ICC, which reflect the rights and obligations not only of the victims as a party to the case, but also of a third party.

1.3. The ICTR and the ICTY have confirmed the need to establish an independent and permanent court to bring to international criminal responsibility those who have committed the most serious crimes. On July 17, 1998, representatives of 120 States adopted the Rome Statute of the ICC by votes in favor, with 7 against and 21 abstentions.

The following parties may participate in the ICC in the framework of criminal proceedings: a) the defense side; b) the prosecution side; c) the victim's side; d) a third party ^[28].

 (The definition of a third party is the most controversial issue in the theory of international criminal procedure. At the Rome Conference, it was suggested that the position of the State of nationality of the accused does not matter, therefore, citizens of third States can fall under the jurisdiction of the ICC without such States ratifying the Rome Statute. The United States argued that this position of the ICC contradicts the principle of international law, according to which States cannot be bound by treaty obligations without consent.)

The participation of victims in international criminal proceedings is a relatively new phenomenon. It was the Assembly of States Parties that was tasked not only to guarantee the independence of the court and its prosecutor, but also to protect the rights of victims ^[9]. Although in many countries victims are given the opportunity to participate in a criminal case as civil plaintiffs, nevertheless, the approach that gives the victim the functions of a party is an innovation in the process ^[1].

Since no compromise was found on the definition of the concept of "victim" during the preparation of the draft Rome Statute and during negotiations on its adoption, this definition was placed in the Rules of Procedure and Evidence, which is largely based on definitions of victims available in international law, primarily those contained in the adopted UN The Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Although these texts are not legally binding, they are considered to be the most important documents on victims' issues at the international level, as they take into account existing international norms concerning the rights of victims. Principle 8 of the Basic Principles defines victims as persons "who have suffered damage individually or collectively, including physical or mental harm, mental suffering, material loss or substantial infringement of their fundamental rights, as a result of actions or omissions that constitute gross violations of international human rights norms or serious violations of international humanitarian law. In applicable cases and in accordance with national legislation, a "victim" may also be understood as a direct family member or dependent of the directly affected person, as well as persons who, during intervention to assist victims in distress or prevent further violations, were harmed." Principle 9 clarifies that "the person concerned is considered a victim regardless of whether the perpetrator of the violation has been identified, detained, prosecuted or convicted, and regardless of the kinship that may exist between the perpetrator and the victim." A number of other existing definitions of the victim can be used by the ICC for interpretation purposes.

Article 68 of the Rome Statute is a basic rule governing the participation of victims in legal proceedings, which states: "At the stages of the trial that the Court deems appropriate, the Court allows the views and concerns of victims to be represented and considered when their personal interests are affected," but this should be done in such a way that "so that this does not prejudice or contradict the rights of the accused and the conduct of a fair and impartial trial." In cases where the Court considers it justified, "such opinions and concerns may be expressed by the legal representatives of the victims in accordance with the Rules of Procedure and Evidence" ^[26].

Thus, the following can be noted. Even before the adoption of the Rome Statute, the thesis that the main parties in the international criminal process are the prosecution and the defense was not questioned. The provisions of the founding documents of the ICTR and the ICTY outlined the vector of development of the theory of the parties, giving such participants as victims (witnesses) elements of the status of a party in the process.

With the adoption of the Rome Statute and the ICC Rules of Procedure and Evidence, their position has been strengthened. The victims in the criminal proceedings in the ICC have acquired the full-fledged status of a party to the process. In addition, the ICC introduced provisions on compensation for victims for the first time ^[22]. This conclusion can be drawn based on the interpretation of the provisions of the Rome Statute and the Rules of Procedure and Evidence. The drafters have provided several schemes for the participation of victims in the case under consideration. The participation of victims may be carried out through the submission of submissions and comments on violations of rights in writing to the Secretary or in connection with the compensation procedure ^[1]. In one process, both a claim for restoration of violated rights and a claim for compensation for harm can be made. At the same time, these claims can be made by either one victim or several. Therefore, the victims became not just a participant, but a party in the criminal proceedings before the ICC.  The only limitation is that such participation should not prejudice or contradict the rights of the prosecution and the conduct of a fair, impartial and expeditious trial. At the same time, the Rome Statute of the ICC identifies another party – a third party.

2. The concept of a third party under the Rome Statute of the ICC

The status of a third party in the ICC procedure is currently not only insufficiently clarified, but, in addition, there is no full-fledged research on this issue in the doctrine. Many well-known authors, including M.S. Bassiuni ^[15], G. Werle ^[2], A. Cassese ^[16], R. Cryer ^[17], O. Triffterer ^[29], V.A. Shabas ^[23] raise this topic only within the framework of studying related issues.

It is important to note that in the foreign doctrine, the authors use both the concept of "third party" and the concept of "third state". The author concluded in the framework of the study that these concepts are generally identified. A third party is a participant in international criminal proceedings represented by a third State (or international organization) that is not a party to the Rome Statute. (Within the framework of this study, a third State and an international organization representing a third party in criminal proceedings before the ICC may or may not be involved in an armed conflict.)

The Rome Statute cannot impose obligations on third States. Non-member States, in theory, can argue that, in accordance with international law, they have every right to refuse official recognition of international organizations ^[19]. A more difficult problem is the policy of not recognizing the specific powers granted to the ICC, for example, to conduct criminal investigations, to try and acquit citizens of all States, including citizens of States that are not members of the ICC. Refusal to accept the ICC's competence in this area is tantamount to denying the transfer of powers from the ICC member States. In accordance with the Rome Statute, the participating States transfer to it their national jurisdiction over serious crimes of international interest ^[5]. States that are not members of the ICC have no legal grounds to object to the lawful transfer of powers of Member States to the international judicial system ^[4].

According to articles 13 and 14 of the Rome Statute, in certain cases the ICC may carry out jurisdictional activities against third-country nationals. Despite the fact that only citizens of third States will participate in the ICC, and not third States themselves, it is obvious that the organization's activities will affect the legal interests of non-member States.

Articles 5-8 of the Rome Statute include definitions of the most serious crimes. To the extent that they reflect what has already been perceived in international law as a whole, they can be applied to all subjects of international law without exception. Thus, substantive criminal law in the innovations introduced by the Rome Statute can give rise to a new customary law. If there is a common and uniform judicial practice supporting the new principles and rules of the Rome Statute recognized by opinio juris, then such rules may become generally binding customary law. As a permanent institution, the ICC contributes to the further clarification and clarification of these offences. These changes appear to have an indirect impact on third States.

According to article 12 of the Rome Statute, the ICC may exercise jurisdiction over nationals of States Parties and on the territory of a State Party, provided that there is also substantive and temporary jurisdiction, the alleged offender was at least 18 years old at the time of the commission of the crime. Three questions arise regarding the jurisdiction of the ICC for non-participating States. First, there is the objection that the ICC cannot exercise jurisdiction over nationals of a non-party State. Secondly, citizens of a non-party State who are entitled to immunity under customary international law cannot enjoy immunity at the ICC. Thirdly, a State that is not a party may make a declaration by which it recognizes the jurisdiction of the ICC, without, however, becoming a party to it ^[24].

The Rome Statute allows a non-party State to declare that it accepts the jurisdiction of the ICC in relation to the crime in question, but without ratifying or acceding to the Rome Statute. Ivory Coast, Uganda and Palestine have made such statements ^[27].

After the adoption of the Rome Statute, Article 12(3) became the subject of discussion by the United States, which argued that Article 12(3) would allow Saddam Hussein to invoke the jurisdiction of the ICC in relation to crimes committed by the United States in Iraq, but at the same time does not authorize the ICC to do the same in relation to crimes committed by the regime against the people of Iraq. The United States campaigned "for" and achieved the inclusion of Rule 44 in the Rules of Procedure and Evidence ^[18].

This Rule is intended to make it impossible to unilaterally manipulate the jurisdiction of the ICC. Some supporters of the American position are of the opinion that in any case, obtaining benefits automatically follows from the logic of a "reasonable reading" of Article 12(3), that there is no need for a clear norm to clarify the situation. Others argue that even if Rule 44 is followed, the problem persists. According to Jack Goldsmith, "its vague position, as many have stated, does not guarantee that, in accordance with Art. 12(3), the participants will agree to jurisdiction over all crimes. But even if that had happened, Iraq could have agreed to article 12(3) and simply not show up.  Rule 44 improves the discrepancy with Article 12(3), but does not eliminate it ^[22]."

As ratification of and accession to the Rome Statute makes the treaty more universal, the difficulties faced by third States that are not parties become more important. There is a lack of legal clarity in the relations of the ICC with citizens of States that are not its direct participants ^[21]. Given the reluctance of several major states, including the three permanent members of the UN Security Council, to join the ICC, these problems will remain for many years. Indirectly, their existence is confirmed by recent events, in particular those related to the issuance of an arrest warrant for President Bashir of Sudan and the declaration of jurisdiction formulated by the Palestinian Authority.

Based on the above, the following conclusion can be drawn. Historically, the concept of the parties in criminal proceedings in international tribunals has been based on the following principle.  At first, the main parties in the international criminal process included the prosecution and the defense. The activities of the ICTR and the ICTY contributed to the fact that participants such as victims (witnesses) began to be endowed with elements of the status of a party. According to the provisions of the Rome Statute, in criminal proceedings at the ICC, the prosecution, the defense, the victims and the third party are distinguished.

Analyzing the ongoing structural evolution of the model of international criminal procedure, it is possible not only to predict the further expansion of the functionality of the parties, but also to observe the crystallization of the status of a third party. The emergence of a third party as a separate participant in criminal proceedings is due to the fact that not all States are parties to the ICC, but, nevertheless, any of these States may be a party to a conflict that is currently or may later become the subject of consideration by the ICC. Therefore, in order to overcome difficulties in the administration of justice, the ICC defined the rights and obligations of a third party, as well as raised the question of the participation of its representatives in the investigation of cases ^[25]. Such a course of evolution of the international criminal process demonstrates the likely direction of the development of the theory of the parties in the science of criminal procedure, which can contribute to solving systemic problems of ensuring the rights and legitimate interests of participants in criminal proceedings (especially in the context of internationalization of criminal activity, including through the use of digital technologies ^[11]).