The Early Stages of ICC Proceedings: Why the Court Must Ensure Access to Justice for Victims and Suspects (Part II: The Other Party to ICC Proceedings: The Case for Establishing a Clear Framework on Defence Rights in the Early Stages)

[Megan Hirst is ICC victims’ representative in the Bangladesh/Myanmar and Afghanistan situations.

Marie O’Leary is acting Principal Counsel for the ICC Office of Public Counsel for the Defence (OPCD). The views in this post are those of the author alone and do not reflect the views of the ICC.

Valeria Babără is Legal Adviser at Women’s Initiatives for Gender Justice, and Danya Chaikel is FIDH Representative to the ICC.]

As examined in Part I, the ICC lacks procedural safeguards to ensure victims’ interests are protected and heard during the early stage of proceedings. In Part II, we look at the actor who will become the subject of each eventual case – the defendant. Despite fair trial guarantees in the Rome Statute, the application of defence rights in the early stages remains amorphus, with limited access to evidence, unclear procedural frameworks, and significant resource disparities. The Prosecution controls the timing and scope of early proceedings, while defence counsel frequently operate in isolation, without investigative resources or prior knowledge of the case. To uphold fair trial rights and ensure structural balance in early proceedings, the Court must establish a clear framework for consistent defence participation at this critical stage.

The Suspect in the Rome Statute 

The ICC’s core legal texts do not explicitly mention standing of a suspect (“defendant”) until the first appearance of that person. However, defendants are granted significant fair trial guarantees. Crucially, Art. 54(1)(c) mandates the Prosecutor to “[f]ully respect the rights of persons arising under this Statute” during the investigation stage. In the Rome Statute, therefore, suspects are rights-bearers even before they are named, through several provisions and as seen in practice.

Suspect Rights in Arts. 55 and 56 Proceedings

Two provisions of the Rome Statute clearly require defence counsel’s involvement in specific proceedings during an investigation. 

Art. 55(2) is specifically directed to the rights of suspects in interviews. When the Prosecutor or a national authority is interviewing a potential suspect, that person has the right to have counsel present with full access to both legal assistance and legal aid. This right “[t]o be questioned in the presence of counsel” (unless explicitly waived) is enforceable. The Ruto & Sang Trial Chamber demonstrated this in a 2014 decision where it rejected the admission of a suspect interview, Witness 495, as it was “unable to determine that the witness’s right to counsel was fully availed to him, as required by Article 55(2) of the Statute”. 

Art. 56, meanwhile, allows PTCs to authorise a “unique investigation opportunity” to preserve evidence that could be later used in a trial. In practice, this is often similar to a deposition. The process can be used “to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.” Ergo, the defence – some defence – needs to be engaged. This kind of Art. 56 assignment calls for counsel to perform a role in the questioning, sometimes even cross-examination, ‘on behalf of the general interests of the defence’. 

In practice, this function is incredibly difficult. Not only does counsel not have a client from whom to receive instructions; there is often not even an identified potential suspect or a specific case in which such testimony will be used. Additionally, it is the OTP which requests the use of Art. 56, and thus controls the timing of such proceedings. Usually, the OTP will already be familiar with the situation, including language, history, political complexities and the details of the events under investigation. The OTP also has significant resources at its disposal for taking the testimony. This is in contrast to the position of a defence counsel, who will often be new to the Situation and the events under investigation, typically acts alone with no supporting body or staff and under vow of confidentiality, and, as such, has little access to resources to support the work. This imbalance is compounded by a lack of disclosure procedures during Art. 56 proceedings, with the process offering only limited material to defence counsel for the specific purpose of that testimony-taking. The lack of available information as well as time shortages mean that in practice defence counsel have no chance to conduct an independent investigation in the context of the Art. 56 proceedings. Together these factors make it extremely difficult for duty counsel to play a meaningful role at this stage.  

A Sui Generis System, Without a Fully Developed Framework 

In both Arts. 55 and 56 assignments, the full realisation of defence rights requires that counsel is adequately prepared and resourced. This does not only mean legal aid, but access to all that is necessary to fulfil the role. At minimum, this should include ICC Registry support – such as language resources and cooperation – as well as relevant confidential records. In fact, Regulation 40(6) of the Regulations of the Court requires that an Art. 55(2) counsel is “responsible for informing [the suspect] of the other documents in his or her case”. A suspect’s counsel must, therefore, have access to the totality of these documents even at this early stage. 

However, the texts of the Court say very little about how these rights are put into practice when there is no defendant yet before the Court, leaving defence counsel without clear procedures, access to materials, or institutional support. 

There are no public Court documents regulating how counsel assignments are made for Arts. 55 or 56 proceedings or how counsel’s access to materials is determined and/or granted. The highly confidential nature of these processes further complicates matters: any assigned counsel will be unlikely to access filings regarding previous Arts. 55 or 56 proceedings that could provide guidance on format or previously litigated issues. This weakens the position of the assigned counsel. In stark contrast, the Prosecution has access to the full record of confidential and ex parte litigation in all previous proceedings. 

One way to alleviate the gap between the parties would be to develop a public, Court-wide procedure for Arts. 55 and 56 proceedings, either through policy, protocols or the Chambers’ Practice Manual. This would create consistency and enable defence counsel to familiarise themselves with the applicable legal framework. Developing that framework through an open discussion amongst all Court actors, rather than a process directed by the Prosecution, could better serve fairness to the defence, as required under Art. 54, as well as open justice and transparency. In sum, specific uses of Arts. 55 and 56 can remain confidential, but a framework which is founded on best practices could be promulgated publicly. 

Timing is Everything

One of the main difficulties in protecting defence rights at the early stages is that suspects are not concretely identified until an arrest warrant is made public. Although it is generally agreed that suspects have standing and a right to counsel once they arrive at the ICC (if not en route from apprehension or surrender), before this it is less clear. However, experience demonstrates that defence rights and interests are affected by decisions taken at the Court during these phases. 

The Situation of Palestine is illustrative. There, the limits of territorial jurisdiction were litigated and judicially determined in 2020-2021, well before specific suspects were identified. And yet, this question of territorial jurisdiction is an issue that can critically affect both defence and victims’ interests. It is therefore no surprise that amicus curiae defence and victims’ voices would want to – and did – weigh in on this question, both in 2020 and again in 2024 when the question of jurisdiction re-emerged in the Situation litigation. The difference in 2024 was that there were then named persons, publicly known as the subject of potential arrest warrants. Curiously, the texts do not address the standing of potential suspects in such a process. In the 2024 Palestine litigation, among a sea of intervenors, notably absent were those individuals who had been publicly named by the OTP as subject to (then undecided) arrest warrant requests. 

The early naming of a potential suspect by the OTP has subsequently occurred again in the Situation in Bangladesh/Myanmar and again in the Situation in Afghanistan, suggesting that this could become practice. As discussed in Part I, it was in the Situation in Bangladesh/Myanmar that a request was made in 2023 for the early adoption of protocols and for counsel access to confidential material. As well as creating a level-playing field for Prosecution, defence and victims during investigations, this would enable counsel to intervene where rights are implicated. Where defence rights are clearly affected, logically the OPCD, with a mandate of “[r]epresenting and protecting the rights of the defence during the initial stages of the investigation”, could provide a ‘brief watching’ service to address issues or seek assignment of counsel where more substantial rights are implicated. Achieving this would merely require OPCD to have access to the confidential record. The issue, then, is largely one of access and procedure, rather than cost.

Case in Point

The case of Mr Joseph Kony magnifies the issue of early-stage standing even more acutely. In the early days of the Court and of his case, defence counsel were assigned in litigation regarding admissibility. Even then, matters of lack of instruction were raised as grave impediment. In the intervening years, no counsel has been assigned to represent Mr Kony’s interests. So, when the Prosecution asked for in absentia confirmation of charges proceedings against him, Mr Kony had no dedicated counsel who could litigate the issue. Rather, the OPCD sought and was granted leave to make submissions on the general interests of the defence. Even once it issued a decision permitting an in absentia confirmation hearing, the PTC still did not immediately assign counsel to represent Mr Kony’s interests. 

In the course of year and a half that followed, the OPCD sought to intervene on many issues: the sufficiency of the proposed notice process ordered by the Pre-Trial Chamber, the need for representation on charging issues raised by victims, a request for access to the confidential record of the case, and submissions on the selection process for an eventual counsel as proposed by the Registry. Save on the last issue, most OPCD requests were rejected outright for lack of standing. In others, the PTC considered that there was no need for a dedicated defence counsel and/or an OPCD counsel with confidential access. Regardless, the stream of issues raised by the other actors with standing in the case – namely the Prosecution, victims, and the Registry – and by the PTC itself, all seemed to counter-indicate. Throughout this time, a voice for Mr Kony was the only one missing in the proceedings brought against him and which bear his name.  

While a dedicated defence counsel is now assigned and supported by a team to represent Mr Kony’s interests in the in absentia confirmation proceedings, it is not without encumbrance of the need to ‘catch up’. The Prosecution has maintained cooperation and investigation in the Situation of Uganda and in the case of Mr Kony et al for over 20 years. Personnel from the OTP have access to the vast body of court records (e.g., the filing assigning his current counsel was the 503^rd filing in the case) and are apprised of, or were even involved in, the proceedings of co-defendants, notably the trial and appeal of Mr Dominic Ongwen. What’s more, defence counsel’s onerous task is undertaken without access to the client himself. 

Improving Procedure at the Early Stages: Does It Matter? 

To outside observers, the early stages may seem unimportant: can’t suspects – or victims, as mentioned in Part I – just wait until there is a pre-trial process, in which they will be able to participate?  

Victims and eventual suspects are necessarily affected by Prosecution conduct during these early stages, and this must be addressed in a timely way. Harm to victims, the integrity of the investigation, or the rights of the defendant might become irremediable by the time a suspect is before the Court. In other instances, if matters dealt with ex parte during the early stages eventually need to be re-litigated, this causes delays and requires additional resources. As noted above, Mr Kony was eventually given a counsel who, as his first task, was required to weigh in on matters which had already been raised, some litigated, in the absence of a dedicated counsel representing him.

It doesn’t have to be this way. The Chambers and Registry could enable defence and victim intervention at the earliest stages. Texts could be developed to regulate the early stages and improve transparency – and this could be done on a Court-wide basis with the involvement of defence and victims voices. This would be an improvement on current approaches which are often problematically run solely by the Prosecution, or by the Prosecution and Registry (some examples include the Documentation Guidelines for Civil Society Organisations, the establishment of field offices, and Memoranda of Understanding related to investigations and cooperation in a territory). Victims and defence are eventually impacted by all of these processes, but are presently given little or no voice in their development. Including defence and victim input from the start, rather than having it become the basis for challenges in eventual proceedings, would increase efficiency in resource usage and avoid delays.  

Establishing a clear framework for the early stages, and recognising standing for victims and defendants where it is violated would not lead to frequent litigation before PTCs. To the contrary, litigation would be avoided with enforceable rules; so long as all actors knew the applicable rules, and were aware that they could be enforced. Matters which otherwise will need to be re-litigated may be dealt with once and for all. If the Prosecution is concerned (as suggested by their filing in the Bangladesh/Myanmar litigation on protocols) that other actors, including victims, will harm its investigation, then surely the solution is more and better regulation, rather than less. 

Standing and inclusion would also involve defence and victims counsel being granted access to the confidential case record at the early stages. This would enable defence and victims counsel to know when a matter affecting their interests was being dealt with. The protection of sensitive prosecution material would remain possible through the use of confidential ex parte filings where this is justified for the protection of persons and investigation processes, as noted by the Chamber in Gaddafi & Al Senussi. Ensuring that filings are classified properly from first instance, as ‘confidential’ or ‘confidential ex parte’ as appropriate, would allow a designated counsel to have file access, and put them in a position to address the PTC as and when issues arise, avoiding the need for later re-litigation. It would also reduce, if not eliminate, the need to do a post-facto review of filings for release upon the eventual assignment of permanent counsel, which can delay the proceedings.  

These measures are not excessive, not luxuries; they are entirely appropriate for an international criminal court which is serious about victims’ and defendants’ rights and understands the role and responsibilities of counsel. If the Court aims to offer justice according to international standards, it is vital that early stage activities are included in this framework. The Court’s legitimacy, and the fairness of its proceedings depend as much on the integrity of this stage as they do on eventual trials.