The pre-trial phase at the international criminal tribunals begins with the prosecution's submission of proposed charges and ends with the commencement of trial. During this period, which can last up to several years, the participants prepare for trial in those cases where the proposed charges have passed judicial scrutiny, and the accused has not pleaded guilty to some or all of those charges. At the ICC, this stage takes place under the supervision and control of both the pre-trial and trial chambers, as a case is transferred from one to the other after the charges have been confirmed, and typically well before opening statements. At the SCSL, the same judges hear and manage the case through the pre-trial and trial phases. While the same arrangement may occur at the ad hoc Tribunals in some cases, in others, control of each phase is tasked to a different chamber.

This chapter examines six sets of rules and practices that comprise and define the pre-trial phase of the proceedings. Section 6.1 discusses the law governing the submission, review, confirmation, amendment, and withdrawal of charges. Section 6.2 reviews the joinder and severance of charges, accused, and indictments or trials – tools which facilitate the large trials that have come to characterise proceedings at the ICTY, ICTR, and SCSL, and which may yet become an important feature of ICC procedure.

Few today would dispute the existence of substantive international criminal law and its legitimacy under international law. With some noteworthy exceptions, it is well accepted that the core categories of crimes, their underlying offences, and the forms of responsibility listed in the statutes of the international and internationalised criminal courts and tribunals (collectively, ‘international criminal tribunals’) are established in customary international law, treaty law or general principles of international law. The same cannot be said, however, for the procedural rules that govern the conduct of international criminal proceedings. Despite fifteen years of procedural activity at the international criminal tribunals, generating far more jurisprudence on matters of procedure than on substantive law, considerable scepticism remains about the legitimacy of international criminal procedure as a body of international law in its own right.

This third volume of the International Criminal Law Practitioner Library Series presents international criminal procedure as a comprehensive and coherent body by describing and explaining the framework within which substantive international criminal law is developed and applied at the tribunals. The first three chapters look at the infrastructure of the international criminal tribunals, including the sources of rules of international criminal procedure and the tribunals' relationship with national courts. The remaining chapters examine the key procedures as defined and elaborated in the governing instruments and jurisprudence of the international criminal tribunals, including those relating to investigations, detention, assignment of defence counsel and self-representation, the pre-trial and trial processes, victim participation, evidence, judgement, sentencing, and appeal.

Two of the notable differences among the various international criminal tribunals are the manner in which their respective procedural architectures are created, and the constitutional frameworks for their amendment. Though the legitimacy of international criminal procedure as a body of law has begun to receive more academic attention, an infrastructural issue of considerable significance to the debate remains relatively unexplored: how rules and regulations that bind parties and courts (and indeed, states, international organisations, and individuals through orders of these courts) are created and amended.

The judges of the ICTY and the ICTR (jointly, ad hoc Tribunals) have a unique, and now well entrenched, power to create and amend their own rules as ‘quasi-legislators’. The drafters of the Rome Statute, however, rejected such an approach, opting instead for greater control of the procedural framework by the Assembly of States Parties (ASP) – an approach reflected more in form than in substance, as discussed below. Diversifying further the rule-making frameworks, the internationalised tribunals have opted either for the largely wholesale adoption of the ICTY or ICTR Rules, as in the case of the SCSL; or the application of the rules of domestic courts, in the cases of the Cambodian Extraordinary Chambers and the now-defunct East Timor Special Panels.

This chapter discusses the manner in which rules of procedure and evidence have been created and how they are amended in the different international criminal tribunals.

This volume examines the tangible body of rules and practices applied in the international criminal tribunals during the various steps of an international criminal prosecution: investigation; arrest; detention; charging; disclosure and other pre-trial preparation; guilty pleas; trial; appeal and other post-conviction relief; punishment; and imprisonment. It also reviews other procedures essential to conducting effective investigations and fair and expeditious trials, including rules and practices on admissibility of cases, evidence, and case management; and rules relating to the issuing of orders to states and private individuals; to the assignment of defence counsel and self-representation; the election, appointment, and recusal of judges; victim participation; and reparations.

In considering this vast array of issues, we have endeavoured, first and foremost, to explain the rules of procedure and give examples of how they function in practice. At the same time, we have sought to grapple with some of the more fundamental themes that are intertwined in the legal framework of international criminal procedure, including the ways in which international criminal tribunals and their creators constructed this area of law; how they have shaped its evolution to meet new challenges and changing circumstances; whether this effort has been successful; and whether it has adversely affected other important interests. Many of the rules of international criminal procedure seek a balance between two interests that are frequently in opposition. The international community, and especially victims, demand swift and effective justice for those who are responsible for mass atrocities.

National courts bear the primary responsibility for trying international crimes, under one or more of five bases of jurisdiction recognised in international law: territoriality, nationality, the protective principle, passive personality, and universality. Yet for a variety of reasons, states have usually failed to exercise any of these forms of jurisdiction to prosecute domestically. Most common among these reasons are a lack of domestic implementing legislation; a structural inability to prosecute, such as a dearth of judicial competence or catastrophic events damaging the legal system's integrity; or an unwillingness to prosecute, as could result from a judiciary that is corrupt, biased, or not independent from political leaders' whims. Seeking to prevent impunity for those who would otherwise escape prosecution in a national court, the international community has set up various international and hybrid criminal tribunals in the last two decades as supplements to or substitutes for national courts. In the principal tribunals examined in this series – the ICTY, ICTR, ICC, and SCSL – the tribunal's statute does not purport to strip national courts of jurisdiction, but instead establishes the tribunal's jurisdiction as concurrent with that of national courts.

Concurrent jurisdiction reinforces the obligation of states, in the first instance, to prosecute international crimes, but also acknowledges the inability of international tribunals to handle the hundreds or thousands of potential cases themselves.

In any criminal justice system, including those set up to try persons thought responsible for international crimes, fundamental human rights principles demand that accused persons have the ability to defend themselves against criminal allegations. Among these fundamental rights are the right to be represented by qualified defence counsel, at no cost if the accused cannot afford counsel; and, with certain limitations developed in the jurisprudence, the right to conduct their own defence. Defence representation before international criminal tribunals can take many forms, including privately funded defence counsel; tribunal-funded defence counsel; self-representation, which implicates a range of procedural and resource issues; and even the use of amici curiae to perform many of the tasks traditionally performed by defence counsel. There are two basic categories of legal representation in international criminal law: representation by counsel and self-representation. As will be discussed in some depth, these two different models of representation give rise to variants that impact significantly on the capacity of international criminal tribunals to deliver a fair trial.

This chapter considers the regulatory structure and jurisprudence relating to these different procedural models. Like most chapters in this volume, the chapter focuses mainly on the ICC, ICTY, and ICTR, with occasional reference to the SCSL, Special Tribunal for Lebanon (‘STL’), or another internationalised tribunal if their relevant procedures illustrate an innovative approach or otherwise aid the analysis of the key issues surrounding representation of accused persons. Where procedures across the tribunals vary significantly, we discuss each tribunal in a separate subsection.