United Nations $'2015,562

Provisional24 Jub' 205

Origisat: English

Malaysia: draft resolution

7"to 2ccHqn' (b'mu/L

Rc'q/}'irm/n its resolutiort 2166 (2014} of 21 July 2014 or de dov, nit-tg ofMalaysia AiNines flight MH 17 on 17 July 2014 in Dondsk ObJasl, Ukraineconcerning the tragic kss of 298 lives in which it demanded tidal flsose responsibleIbrthis incident beheldloaccoum andflalal Statescooperate%!lvah-h efforts to

establish accountability,

R'cu//inA its resoIution 2202 (2015) of 7 February 2(15. which reaffrnsedresoJution 2166.

?\,'o/in2 the Preliminary Report into the cause of the crash b\, the Dutch SafetyBoard entrusted with the in accordance with Annex 13 of theConvention on International Civil Aviation issued on 9 September 20!4. whichidetified that the aircraft was destroyed by a large number of high energ? obiectsthat penelrated the aircraft from the outside, recatling the briefing offl-m Council onI9 September 2014 and nofin2 dxo the resohltion on MHI 7 adopted b} the Councilof'the International Civil Aviation Organisalion on 28 Oclober 2014,.

RocJ,/ir,,n/ng dse ules o1" hsternational law that prohibh acts of violence that

pose a threat to the safety of international civil aviation and in this regard deploringal other acts of violence against civilian aircralk,

?'/(,f/ng aJso the Idlers addressed to ll[s Council by rise Govermsent of theNetherlands dated 1.6 December 20t4 (S/20t4,'903} and 20 July 2015 (S/20!5/551).respecti,,ely amouncing tle creations of a .!oint Investigation Team to coordiate thehsternational criminal investigatiom v,,itl the aim of' bringing the perpetrators tojustice, and providing an upda'e in relation to fle status of that investigation, as welas rise recovery and repatrialion mission and the international technica h3vestigaioninto the cause office crash

DeG)/), concowod by all acts of violence that pose a threat to die safety of civilaviatioo

DUdm;inin that this violenl act and ils implications %r the safety of civilaviation corstitute a threat to irKernatioal peace ad securily,

Dotot'mincd 1o deter future attacks on civil aircraft arid to take effective

measures to bring 1o justice the persons v, ho are responsible for this incid

S/2615/562

Bc4M, ing that the establishment of an international tribunal and theprosecution of persons responsible fbr this incident will contribute to the safety ot"civil aviation and to maintenance of international peace and security,

ConviHced that in the particuMar circumstances of this incident, theestablishment of an international tribunaJ would be an effective guarantee for an

independent and impartial accountability process in accordance with imernationatstandards.

RcJtrring to the letter from the Governments of Australia. Belgium, Malaysia,The Netherlands and Ukraine dated 10 July 2015 (S/2015/528). and ackfTou'/odgqngtheir commitment to ensuring the effective functioning of an international tribunal,which will build upon the work of the Joint |nvestigation Team,

Acting under Chapter VII of the Charter of the United Nations,

!. Re, iterates its deepest sympathies and condolences to the f'amiIies of the

victims of this incident and to the people and governments of the victims countries

of origins:

2. DemanU" that aln States and other actors refrain from acts of violencedirected against civilian aircraft:

3. (a//s pon all States and actors in the region to accord tkdl cooperationin the conduct of the international investigation of this incident as required byResolution 2t66 (2014):

4. Rc, quesls the States working together in the Joint Investigation Team tocontinue to keep the Council fully and regularly informed of the progress of itsinvestigation as appropriate and without prejudice to the confidentiality of thecrhninal investigation:

5. Ursges the earliest possible finalization of the international technicalinvestigation into the cause of the crash and the criminal investigatiom withoutprejudice to the quality of those investigations;

6. Decides to establish an international tribunal %r the sole purpose ofprosecuting persons responsible Rr crimes connected with the downing of MalaysiaAirlines flight MHI7 on 17 July 2014 in Donetsk Oblast. Ukraine. and to this endadopts the Statute of the International Criminal Tribunal for Malaysia AMinesFlight MttI7 annexed hereto;

7. Decides that all States shall cooperate fully with the Internationa!Tribunal and its organs in accordance with the present resolution and the Statute of

the International Tribunal, and that consequently, all States shall take any measuresnecessary under their domestic taw to implement the provisions of the presentresolution and the Statute, including the obligation of States to comply with requestsfor assistance or orders issued in accordance with the Statute of the internationalTribunal and requests States to keep the Secretary-General informed of such

measures:

8. Dcidos that the International Tribunal shall be funded through voluntarycontributions and encozra;'es States and intergovernmental and non-governmentalorganizations to contribute funds, equipment and services to the InternationalTribuna!, including the offer of expert personnel:

2/23

X/20] 5/562

9 Dccidv,s' tt]at the determilsatior oflhe seat of the Inletnational ]]ibunal is

subject to t/]e coctusion of appopiat6 arangemets betweer fim Uited Nations{rod the Netherlasds acceptable to tle Councit, and that rise ne'sational Tibunatmay sit elsess}sere vlsen it cosides it necessaiy [or de etTicient exercise o[ its

tmctions;

JO /)vv/dv.s' also fl-mt the work of im inlenational Tlqbu sa! shalt be canied

out without prejudice !o 1/}e existis right oftle families of vidims to seek, d]rouh

appropIiate mean comI}ensatios:

11, Rtqm.sLs' "I1]e SecretaryOeneal to implemen' this esotution ursentlF,atsd in to make all arangemenls when in

cooMination with t]e Govenments of AustaIia, TheNetisertands and Ukraine, for the efl'ective functionin$ of fle hsternationa! Tibunat

at the earliest time and lo epox to the Cou]cil periodically on 1he implementation

of this esolution;

12 Ducidv,s' to remain actively seized of the marten

3/23

S/2015/562

Annex

Statute of the International Criminal Tribunal for MalaysiaAirlines Flight MH 7 (ICTMH17)

Statute

International Criminal Tribunal for Malaysia Airlines

Flight MH17

Having been established by the Security Council acting under Chapter VII of theCharter of the United Nations, the lmernational Criminat Tribunal for MalaysiaAirlines FHight MHI7 (hereinafker referred to as "'the Tribunal"), shall function andexercise its jurisdiction in accordance with the provisions of the present Statute.

Section [Jurisdiction of the Tribuna!

Article !Crimes within the jurisdiction of the Tribunal

The Tribunal shall have jurisdiction over persons resp({nsible for crimesconnected itb the downing of Malaysia Airlines flight MHI7 on t7 July2014.

2, Subject to paragraph !o the Tribunal has jurisdiction in accordance with thisStatute with respect to the following crimes:

a) Wan" crimes, as defined in article 2:

b) Crimes against the safety of civil aviation, as defined in article 3: and

c) Crimes under the Criminal Code of Ukraine. as defined in article 4.

Article 2War crimes

For the purpose of this Statute, war crimes means:

a) The %tk)wing grave breach of the Geneva Conventions of 12 August1949, namely, wilful killing when committed against a person protectedunder the provisions of the Geneva Convention relative to the Protectionof Civilian Persons ill Time of War,

b) Other serious violations of the laws and customs applicable ininternational armed conflict, within the established f'ramework of

international law, namely, an}, of the following acts:

Intentionally directing attacks against the civilian population assuch or against individual civilians not taking direct part inhostilities:

ii) Intentionally directing attacks against civilian objects, that is,objects which are not military objectives.

4/23

S/2O 5/5f2

c> [n the case of ars armed conflict, not of an international ctsaracteL seriousvioJations of Article 3 common to the Geneva Conventions of]2 AugtstI949. namely, viotesce to life and person hs partictar murder of" all

k ncs, nsutilatiom cruel reatmest and torture committed asaisst personstaking ]o active part i] armed 1]ostilities.

d} Offset serious violations oftle taws and customs applicable i,a armedcors[icts not of an iterratiosal character within the established'ramewok of interational law, nameiy intentionally directig atacks

asainst 1he civiIias popuIation as such or against hdividual civi!iat_s nottaking direc; part in hostilities

Article 3Crimes agai-as{ {he saty of eH avato

For the puipose of this SIatute. crimes against the safety of civi} aviation meansdestroying, damaging or endangering the safeb.' of aircraft as defined in section 9 ofthe Aviatior3 Off, noes Act 1984 ofMalaysia.

For the

a}

b)

c}

d)

e}

f}

h}

Article 4Crimes ader he Crimira Code of UkraiHe

purpose of finis Statuleo crimes under tle Criminal Code of )kraire means:

Murder as defined in Article !15:

Negtigen homicide as defined in Article 119:

Witful destructiols of or damage to propert}.' as defhsed in Articte I94:

SmIggi[ng as deflsed in Article 201;

Crimes againsl pubIic safeb, as defined in Articles 258 and 258=3 lo 2585:

U:sa'a.'[u handling of weapons, ammurition or explosives as defined in

Article 263:

ConceaImerst of'a criminaI offense as defined in Article 396:

Trespass against Ii'e of a foreign state representative as defined irArticle 443.

Secto HProvisos appeab}e to aH Crimes

Article 5

The Tribunal shall have jurisdiction over natural persons pursuant to the provisions

of the present Slatute.

Article 6Exeusio ofjrsdictior oer pers

S/2O/5/562

Article 7Irrelevance of official capacity

This Statute shall apply' equally to all persons without any distinction based onofficial capacity. Ii3 particular, official capacity as a Head of State orGovernment, a member of a government or parliament, an electedrepresentative or a government official shall in no case exempt a person {'tomcriminal responsibility under this Statute, nor shall it, in and of itselKconstitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the officialcapacity of a persom whether under national or international law, shall not barthe Tribunal from exercising its jurisdiction over such a person.

Article 8Statutes of limitation

The crimes defined in article 2 shall not be subject to any statute of limitation.Where a statute of" limitation applies under national lax< the statute of limitation forcrimes det]ned in articles 3 and 4 is extended by 15 years.

Article 9Individual criminal responsibility

A person who commits a crime within the jurisdiction of the Tribunal shal! beindividually responsible a3d liable fkr punishment in accordance with this Statute.

Article 10Concurrent jurisdiction

1. The Tribunal and national courts sha!l have concurrent jurisdiction overpersons responsible for crimes connected with the downing of MalaysiaAirlines flight MH17 on 17 July 2014.

2.

3.

The Tribunal shall have primacy over ational courts. At any stage ofproceedings bef'ore a national court, the Tribunal may forma!ly request thatnational court to defer to the competence of the Tribtmal in accordance withthis Statute and the Rules of Procedure and Evidence, if the interests of justice

so require.

The Tribunal shall have the authority to refer a case to a national court wherethe interests of justice so require.

2.

3.

Arlicle I INe bis in idem

Except as provided in this Statute no person shall be tried before the Tribunalwith respect to conduct that formed the basis of crimes for which the personhas been convicted or acquitted by the Tribunal.

No person shall be tried by another court ffr a crime referred to in article 1(2)for which that person has already been convicted or acquitted by the Tribunal.

No person who has been tried by another court for conduct referred to inarticle 1(2) shall be tried by the Tribunal with respect to the same conductunless the proceedings in the other court:

6/23

S/2@ 5/5(

a) Were fcr the purpose of shieJding the person concerned flom crimirmllesposibiUty for crimes within the jLHdsdiction of the Tribunal: or

Otherwise were not conducted or inaccordalsce with the norms o1[ due process recognized by imernationallaw asd were conducted in a manner which, in the circumstances, wasiconsistem with an inteH to bri-n8 the person concerned Io iustice.

Article 2

An amnesty grained to any person %r any crime fIting within @e jurisdiction of@eTribunal shall not be a ba to prosecution or punishmerm

Sectior HPro,0,dsiors appcaWc to crkaes defiaed Article 2

Artide 3di,idaI crimia resposibiHty fir crimes defired s article 2

A person shall be criminally responsible and liable %r punishment %r war crimes if"that person:

Commits such a crime whether as an hsdividuaI, joimy with another or

@rough another person, regardless of whether that o@er person iscriminally responsible:

c)

d)

b} Orders, solicits or induces rise commission of sods a crime which in factOCCt.HS OF iS attempted:

For the purpose of %cilitating the commiss%n of such a crime, aids,abets or otherwise assists in its commission or its attempted commission.

irlcluding providing the means for its commission:

hs any other way contributes to the commission or attempted commission

of such a crime by a group of persons acting vith a common purpose.Such contribution shall be intentional and shall either:

Be made with the aim of furthering rise cNminal activity or criminalpurpose of the group, where such activity or purpose involves thecommission of a crime within the jurisdiction of the 'Fribulml; o

Be made in the knowUedge of the intention of the group to committhe crime:

e) Attempts to commit such a cNme by takimZ actions that commences itsexecution by means of a s@astantial step, but the crime does not occurbecause of circumstances of the person's intentions,

HoweveL a person who abandons @e effort lo commit the crime orotberise prevents the completion of the crime shall not be liable %rpunishment m@er this Statute %r the attemp to commit that crime if that

person completely and voluntarily gave up the criminal purpose,

7/23

S120151562

Article 14Responsibility of commanders and other superim's

in addition to other grounds of crimina] responsibility under this Statute, in relationto war crimes:

a) A military commander or person effectively acting as a militarycommander shall be criminally responsible for crimes within ttejurisdiction of the Tribunal committed by forces mder his or hereffective command and control or effective authority and control as the

case may be, as a result of his or her failure to exercise control properlyover such (brces. where:

That military commander or person either knew or, owing to thecircumstances at the time, should have known that the l:krces werecommitting or about to commit such crimes: and

That military commander or person failed to take all necessary andreasonable measures within his or her power to prevent or represstheir commission or to submit the matter to the competent

authorities for investigation and prosecution.

b) With respect to superior and subordinate relationships not described inparagraph (a). a superior shall be criminally responsible for crimeswithin the jurisdiction of the Tribunal committed by subordinates underhis or her effective authority and control, as a result of his or her i:aiture

to exercise control properly over such subordinates, where:

The superior either knew, or consciously disregarded in%rmationwhich cJearly indicated, that the subordinates were committing orabout to commit such crimes:

The crhnes concerned activities that were within the effective

responsibility and control of the superior; and

Ji) The superior failed to take all necessary and reasonable measureswittin his or her power to prevent or repress their commission or tosubmit the matter to the competent authorities for investigation and

prosecution.

Article 15Grounds for excluding criminal responsibility for war crimes

In addition to other grounds for excluding crhninal responsibility provided for inthis Statute, a person shall not be criminally responsible for a war crime if, at thetime of that person's conduct:

a) The person suffers from a mental disease or defect that destroys thatperson's capacity to appreciate the unlawfulness or nature of his or herconduct, or capacity to control his or her conduct to conform o the

requirements of law;

b) The person is in a state of intoxication that destroys that person'scapacity to appreciate the unlawfulness or nature of his or her conduct, orcapacity to control his or her conduct to cont:orm to the requirements of

law, unless the person has become voluntarily intoxicated tinder such

8/23

S/2(}15/562

circurnstarces tha tte person knew, or disregarded the isk, tlsaL as aresult of the intoxication, he or she as ]ikeiy to engage in co3duclconstituting acrme within the jurisdiction of rise Tribunal:

c} The person acts reasonably o defend l-Amsef or hersetfo another perso/sor, its (he case o" 'ear crimes, propert} which is essetiai for the survival

of tle person or another person or propert}, w}sich is essemiat foracconsp]is}3ing a military mssiom against an imminent and unlawful useof force ha a mamser proport%nate to the degree of danaer to the personor rise othel person or property protected. The fact that the person wasinvolved in a defcnsive operation conducted by forces shalI not is itselfconstitute a roend for excluding criminaI responsibility under this

d) "['te conduct which is aIeged to constitme a crime v,,itbin the.iurisdicii

S/2015/562

Section IVProvisions applicable to crimes defined in articles 3 and 4

Article 18Provisions applicable to crimes defined in article 3

With respect to crimes defined in article 3. the Tribunal shall apply section 13 of theAviation Offences Act 1984 of Malaysim and Chapters IV (General Exceptions),V (Abetment) and VA (Criminal Conspiracy) of the Penal Code of Malaysia andother provisions of the substantive criminal law of Malaysia considered relevant bythe Tribunal in the context of the specific criminal proceedings, and compatible withthis Statute and internationally recognised norms and standards.

Article 19Provisions applicaMe to crimes defined in arfick 4

With respect to the crimes defined in article 4, the Tribunal shaJl apply Chapters lI[(Criminal offense, its types and stages), V (Guilt and its forms), V1 (Complicity),and VIII (Circumstances excluding criminality of an action) of the Criminal Code ofUkraine and other provisions of the substantive criminal law of Ukraine consideredrelevant by the Tribunal in the context o{" the speci{?c criminal proceedings, and

compatible with the Statute and internationally recognised norms and standards.

Section VOrganization of the Tribunal

Article 20Organs of the Tribunal

The Tribunal shall consist of the I%llowing organs:

a) The Chambers, comprising a Pre-Trial Judge, a Trial Chamber and an

Appeals Chamber;

b) The Prosecutor:

c) The Registry.

Article 21Composition of the Chambers

t. The Chambers shall be composed as follows:

a) One Pre-Trial Judge:

b) A Trial Chamber composed of three (3) judges:

c) An Appeals Chamber composed of five (5)judges:

d) Two (2) alternate judges.

2. The judges of the Trial Chamber and the judges of the Appeals Chamber,respectively, shaJl elect a presiding judge who shall conduct the proceedings inthe Chamber to which he or she was elected.

10123

S!2{H 5/562

The presiding judge of the Appeals Clumbe shat! be Presidem of the'YribuIat.

4 The Plesiden{ of the Tribmm may, ir the inlerests of justice, assigrl anahernalejudge to replace a,iudge, if that judge is msabe 1o contitue sittisg

5 Ajudge shaIi serve osly is 1he Chamber {o vchich he or she was assigied

2,

A{kb 22Qtmiih'a{bs ofjtdges

The judges shall be chosen; from among persols of high rsoral dmracter,impartiality and istegri{y sho possess the qualii'ications requited i theirespective Slates for appoimmem to the highest judicial offices The),' shalt be

irdependent in the peformasce of their fusctions arid shall not accept or seeki]!strt!ctiO13S ]*Om a%y>(*ovensmetst or a iv., other source.

Every tsomilsee %r ffe positiol ofjtdge of the Tribmml shall have establishedcompete.eII as the domestic laws of"

Mataysia and Ukrair< ad shalI peferably have retevam experietce, whe{heas judge, prosecutor advocate or it, other simiIar capacity., i-n crimirm}

3,

2

4.

.),

Every lomiee Ibr 1he positio of judge of the Tribmsal shall have a, excelbntknowledge of ald be fluent in the working Iaguage of the 'Tribulml

Ar{kb 23Appohtme{ ofjadges

At the invitation of the Secretary-General of the United Natioas Slates mayomi,mte cadidaes %r he position of judge of the Tribunal

The Secretory-Get, era[ shall appoint judges, as and whets the fmsctiordng of{heTribunal so requires. Appointmems are made upor} the recommeisda{io of aselections paneJ he or s!e has established after indicatisg his or her imentioisto "{he Security Comscil. The selections paneI shall be composed of two judges..curremly shting o or rethed from an imermtional crimmat tribu3al, ad arepresemative of 1he Secretary-GeseraI

No two judges ol"de same mtionatity shall be appointed.

The judges shall be appoimed for a five-year period and may be eligibJe %rreappoh-ment %r a further period o be deermh-ed by the Secretary-Get, oral

A r{kqe 24Powers of the Preside of the Tr[bua

The Presidem of {he Tribmml shaft be responsible %r essurisg the efficiecyad effectiveness of the Triburm!.

h addhio to his orler iudiciat functions the Presidem of theTribtmal shalirepresem de Tribunal.

The Presidem of the TribmM shall submit a, am>m! report of the Tribtlnal tothe Secrh), Coci! ad to de General Assembly.

11123

S/2{) 15/562

Article 25Tile Prosecutor

1. The Prosecutor shall be responsible iror investigations, taking ito account theinvestigation by the Joint Investigation 'ream referred to in letter S/2014/903dated 16 December 2014 (Joint Investigation Team). and l'or the prosecution ofpersons responsible lk)r the crimes falling within the jurisdiction of theTribunal.

2.

,4.

6.

!.

2.

3.

4.

5.

5.

.

The Prosecutor shal! act independently as a separate organ of the Tribunal tieor she shall not seek or receive instructions from any governmet or from any

other source,

The Office of the Prosecutor shall be composed of a Prosecutor and such otherquanif'ied staff as may be required. With regard to the composition of the staffthe Prosecutor shall take into account the need to liaise effectively with thenext ofkh of victims,

At the invitation of the Secretary-General. States may nominate candidates tkr

the position of Prosecutor of the Tribunal. The Prosecutor shall be appointedby the Secretary-GelleraL

The Prosecutor shall be of high moral character and possess the highest levelof competence and experience in the conduct of investigations andprosecutions of criminal cases. The Prosecutor shall serve tr a five-year termand be eligible for reappointment. The terms and conditions of service of theProsecutor shall be those of an Under-Secretary-General of the United

Nations.

The staff of the Office of the Prosecutor shall be appointed by the Secretary-General on the recommendation of the Prosecutor.

Article 26The Registry

The Registry shall be responsible for the administration and servicing of theTribunal.

The Registry shall consist of a Registrar and such other staff as may berequired.

The Registrar shaH be appointed by the Secretary-General after consultationwith the President of tile Tribunal. He or she shall serve for a five-year termand be eligible for reappointment. The terms and conditions of service of theRegistrar shall be those of an Assistant Secretary-General of tile United

Nations.

The staff of the Registry shall be appointed by the Secretary-General on therecommendation of the Registrar.

The Registry shal! include within it a Defence Office, which will administer,on behalf of the Registrar. a list of Defence Counsel eligible to practice beforethe Tribuna!, as wel! as a system of legal aid for representation of indigent orpartially indigent accused bere the Tribunal.

12/23

q/20 5/562

6o The P.egistry shal inctude ;ffhin i a %/iness Protection and Support Office.which sba!l in consuHatios where with theProsecutor's Office o Defer/ce CotmseL court ordeled or otlsewise necessary

measures asd aangemenls, asd oflse],

appropriate assistarlce fbr witnesses and ot/es who ate at risk on accoulst of,teslimohy given by witnesses.

Arii{.[e 27

The wolking language of" the THbunaI s-[al be Lng]]sh.

Article 28Res of Proeedtre am;d Evidence

The judges of the Tribunal shall as soon as practicable afie [aking office, adoptrules of procedure and evidence for rise conduct of" d;e trials and appeal riseadmission of evidence, rise potecdon of witnesses and other appropriate mattersand may amend flsem as appropriate.

Section Vnvestgation atd proseetor

Ar{iee 29Joit nvestigatio Team

The P'osecutor sisal[ receive and co;sider evidence collected by the JointDvestigation Team.

Article 30vestgatio ad preparatiot of idietme{

The Prosecutor shall initiate investigations propri( ,,,,(.#, or on {}e basis ofreformation obtained flom any somce, particularly from governments UnitedNatio;ls oea]ss Mteovefnmen{a!($ a]d nor>overnmentaI{) orga]izaions, assecessary and appropriate, uddng imo account fl-e investigation conducted bythe ,toint Investigation Team The Prosecutor shall assess the informationreceived or obtained and decide whether flere is sufficient basis to proceed.

2. The Prosecutor may:

a) CoJJect and examine evidence:

b) Request the .presence of and question persons beig investigated and% itllesses:

c) Seek the cooperation of any State or in{ergovermsentat organizatio orarrangemert in accordace with its respective coml?eteBce or mandate:

d> Agree sot to disclose, at any stage of the proceedings documents orinformation that the Prosecutor obtains on the condition of"

confidentia!ity and soIety for the purpose of generating ne, evidence.unless the provider of the informatior consents: and

3t23

Si2015/562

e) Take necessary measures, or request that necessary measures be taken, toensure tile confidentiality of inJk>rmation, the protection of ally person orthe preservation of evidence.

3,

1.

2.

2.

Upon a determination that a prima'jicie case exists, the Prosecutor shallprepare an indictment containing a concise statement of the facts and the crimeor crimes with which the accused is charged under this Statute. The indictmentshall be transmitted to the Pre-Trial Judge.

Artide 31Review of the indictment

The Pre-TriaJ Judge to whom 1he indictment has been transmitted shall review

it. !If satisfied that a prima./Lwic case has been established by the Prosecutorhe or she shall confirm the indictment. If not so satis}]ed the hdictment shaJJbe dismissed.

Upon confirma!,ion of an indictmet, the Pre-Trial Judge may. at the request ofthe Prosecutor. issue such orders and warrants for the arrest, detention.

surrender or transfer of persons, and any other orders as may be required fbr1he conduct oithe trial

Section VIIRights of the accused and other persons

Article 32Rights of persons duriiig an investigation

1. In respect of an investigation under this Statute. a person:

2) Shall not be compelled to incriminate himself or herself or to confessguilt:

b) Shall not be subjected to any, form of coercion, duress or threat, to tortureor to any other brm of cruel inhuman or degrading treatment orpunishment:

c) Shall. if questioned in a language other than a language the person fuJtyunderstands and speaks, have. free of ally COSt, the assistance of acompetent interpreter and such translations as are necessary to meet the

requirements of fairness: and

d) Shall not be subjected to arbitrary arrest or detention, and shall not bedeprived of his or her liberty except on such grounds and in accordancewith such procedures as are established in this Statute.

Where there are grounds }.o believe that a person has committed a crime within

the jurisdiction of the Tribunal and that person is about to be questioned eitherby It]e Prosecutor, or by national authorities pursuant to a request made by theTribunal, that person shall also have the following rights of which he or sheshah be infnrmed prior to being questioned:

a) To be informed, prior to being questioned, that there are grounds tobelieve that he or she has committed a crime within the jurisdiction ofthe Tribunal:

!4/23

S/2015/562

b) To remains silenL without such silelsce befrg a co]sideatol ir lliedetermilsation ofguiIt or i!socelsce

c) To have iegaB assistace of the persors choosigo or if the perset doesnot have legal assistance, to have tegai assistace assirled 1o !im o hein any case where the itterests of justice so equire. asd without payme,atby the person il any stch case if tlse person does -ot have sufficie;stmeass to pay for it: and

2.

d) To be questioned in the presence of cousseI unless the persor hasvokmtaily waived Isis or her right to cousse[

AIMe 33Rights of the accused

Everyolse shalt be presumed imsocent umi proven guilty be%re the Tibunal.The onus is os the Prosecutor to prove the guilt of the accused, In order toconvict the accused, the Tribunal must be colsvisced of the guiIt of the accusedbeyoisd reasolsabJe dosbL

hi the determinathm of aiy charge, the accused shall be emitled to a pubtichearing, havisg regard to the provisioss of this Stattte to a fair [searigcolsducted impartiaiJy, asd o the follov,ilsg miriim,am guarantees is ftlJ

equaJit),:

a) To be in%rmed promptly and in detail ofllte nature, cause ad cortert ofthe charoe_ in a larmuaae wlsich the accused futly undestalsds arid

b)

c)

d)

0

To have adequate time and facilities %r the pleparation of the defencead to commus[cate fleely sith colmse! of the accused's choosing incolf'idence

To be tried without undue delay:

Witlsout prejudice to article 38, to be presem at the trial, lo cow, duct thedefece in perso or through Iega assistance of flie accused's choosbsgIo be i,fformed, if the accused does not have legal assistace, of this rightasd to have Jegal assistance assigned by the TribtmaI in any case sherethe [merests of justice so require, asd without payme,st if rise .accusedacks sufficient means to pay %r it:

To examine, or [save examined, the witnesses against him or iser arid toobtain the attendance and examhatios of witnesses on Ms or her behalfu,sder the same cor, ditios as witnesses against him or her The accusedshall also be e,stitled to raise defesces and to preset other evidenceadmissible trader this Statute:

To have. fiee of asy cost. the assistace of a competest inteqsreter andsuch traslatios as are necessary 1o meet the equirements of fairness it"

any of the poceedhsgs of or docmssems presented to the Tribunal are notils a anguage which the accused fuily msderstands asd speaks;

Not to be compelJed to testif}/ or 1o confess guilt and to remains siiesLwit[sour such s[/esce beisg a cossideration i the determiatior of guiltor irmocetsce;

5/23

S/2015/562

h) To make an unsworn oral or written statement in his or her defence; and

i) Not to have imposed on him or her any reversal of the burden of proof or

an2 onus of rebuttal.

3, In addition to any other disclosure provided for in this Statute, the Prosecutor

shall as soon as practicab[e, disclose to the defence evidence in theProsecutor's possession or control which he or she believes shows or tends to

show tt;e innocence of the accused, or to mitigate the guilt of the accused, orwhich may affect the credibility of prosecution evidence. I[n case of doubt as tothe application of this paragraph, the Tribunal shall decide.

Article 34Protection of witnesses

['be Tribunal shah take appropriate measures to protect the safety, physicaland psychological well-being, dignity and privacy of witnesses. In so doing,the Tribunal shall have regard to all relevant factors, inchding age, gender andheath, and the nature of the crime. The Prosecutor shall take such measuresparticularly during the investigation and prosecution of such crimes. Thesemeasures shal not be prejudicial to or {nconsistent with the rights of theaccused and a fair and impartia! triat.

2. As an exception to the principle of public hearitags provided for i article36(4) the Chambers of the Tribunal may, to protect witnesses or an accused,conduct any part of the proceedings ha camera or allow the presentation of

evidence by electronic or other special means.

Where the disclosure of evidence or in%rmation pursuant to this Statute may'lead to the grave endmgerment of the security of a witness or his or her

family, the Prosecutor may, for the purposes of any proceedings conductedprior to the commencement of the trial, withhold such evidence or informationand instead submit, a summary thereof. Such measures shall be exercised in amanner which is not prejudicial to or inconsistent with the rights of theaccused and a fair and impartial trial,

Artiek 35Confidential information

A State may make an application for necessary measures to be taken in respect ofthe protection of is servants or agents ad the protection of confidential or sensitive

information.

Section VIIIConduct of proceedings

Article 36Commencement and conduct of trial proceedings

The Trial Chamber shall ensure that a trial is fair and expeditious and thatproceedings are conducted in accordance with the Rules of Procedure andEvidence, with full respect for the rights of the accused and due regard for theprotection of witnesses.

16/23

S/2015/562

2. A person agairst whom an indictment has bee confirmed shaIlo pursuant o anoder or an arres warrant of the Tribunal,, be taken ito custody, immediaelyinformed of the cbages against him and transferred to the ]'ribmal.

The Trial Chamber shall read fle indictmett, satis],' itseiflhat the nights of theaccused are respecle& confirm 1hal tle accused understa]ds fl'e indiclmentand isslruct the accused to enter a plea ]!e Trial Chamber shai risen set thedate for trial.

4.

2

4

3

The hearings shall be public utless the Trial Chamber decides to close theproceedil_gs in accordarce with articie 34(2} and its Rules of Procedure andEvidence

Ar{kie 37Powers of the Chambers

The Tribunal shall confie rise trial appella/e and review proceedings stric!lytO all expeditious hearig of tle issues raised by fle charges or the groundsfor appeal or review respectbeJy. It shal take strict measures to prevent ayacio!l that may cause unreasonable delay.

A Chambe may admit asy relevant evidence tbal it deems to have probativevalue and exclude such evidence if its value is substantiallyoutweighed by the need to ensure a idr that,

A Chamber may receive rise evidence of a witness orally or where the imerestsof justice allo,o ht written form.

A Chamber shali respect ald observe privileges on confidentiality as provided%r in the Rutes of" Procedure and Evidesce.

5. A Chamber shaft not require proof of facts of common ktsowledge but maytake judicial otice of flem.

6. Evidence obtailed by means of a violadon of this Slatute or irtlernationallyrecognized haman rights shall 11ol be admissible if:

(a) The violation casts substantial doubt on the.reliability of the evidence: or

(b) The admission of rise evidece would be antithetical to and wouldseriously damage the hvegrity of the proceedings.

7 When deciding or the relevance or admissibiiily of evidence collected by aState fle Chamber shall not rule o the application oflbe State's national lay