United Nations

$'2015,562
Provisional

24 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 of

Malaysia AiNines flight MH 17 on 17 July 2014 in Dondsk ObJasl, Ukraine
concerning the tragic kss of 298 lives in which it demanded tidal flsose responsible
Ibrthis incident beheldloaccoum andflalal Statescooperate%!lvah-h efforts to
establish accountability,

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

resoJution 2166.
?\,'o/in2 the Preliminary Report into the cause of the crash b\, the Dutch Safety
Board entrusted with the
in accordance with Annex 13 of the
Convention on International Civil Aviation issued on 9 September 20!4. which

idetified that the aircraft was destroyed by a large number of high energ? obiects
that penelrated the aircraft from the outside, recatling the briefing offl-m Council on

I9 September 2014 and nofin2 dxo the resohltion on MHI 7 adopted b} the Council
of'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 deploring
al other acts of violence against civilian aircralk,
?'/(,f/ng aJso the Idlers addressed to ll[s Council by rise Govermsent of the

Netherlands 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 the
hsternational criminal investigatiom v,,itl the aim of' bringing the perpetrators to
justice, and providing an upda'e in relation to fle status of that investigation, as wel
as rise recovery and repatrialion mission and the international technica h3vestigaion
into the cause office crash
DeG)/), concowod by all acts of violence that pose a threat to die safety of civil
aviatioo

DUdm;inin that this violenl act and ils implications %r the safety of civil
aviation 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<mt,

5-I932(E)

S/2615/562
Bc4M, ing that the establishment of an international tribunal and the
prosecution 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, the
establishment of an international tribunaJ would be an effective guarantee for an
independent and impartial accountability process in accordance with imernationat
standards.
RcJtrring to the letter from the Governments of Australia. Belgium, Malaysia,

The Netherlands and Ukraine dated 10 July 2015 (S/2015/528). and ackfTou'/odgqng
their 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 violence

directed against civilian aircraft:

3.

(a//s pon all States and actors in the region to accord tkdl cooperation

in the conduct of the international investigation of this incident as required by

Resolution 2t66 (2014):
4.

Rc, quesls the States working together in the Joint Investigation Team to

continue to keep the Council fully and regularly informed of the progress of its
investigation as appropriate and without prejudice to the confidentiality of the
crhninal investigation:
5. Ursges the earliest possible finalization of the international technical
investigation into the cause of the crash and the criminal investigatiom without
prejudice to the quality of those investigations;
6. Decides to establish an international tribunal %r the sole purpose of
prosecuting persons responsible Rr crimes connected with the downing of Malaysia

Airlines flight MHI7 on 17 July 2014 in Donetsk Oblast. Ukraine. and to this end
adopts the Statute of the International Criminal Tribunal for Malaysia AMines
Flight 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 measures
necessary under their domestic taw to implement the provisions of the present

resolution and the Statute, including the obligation of States to comply with requests
for assistance or orders issued in accordance with the Statute of the international
Tribunal and requests States to keep the Secretary-General informed of such
measures:

8. Dcidos that the International Tribunal shall be funded through voluntary

contributions and encozra;'es States and intergovernmental and non-governmental
organizations to contribute funds, equipment and services to the International

Tribuna!, including the offer of expert personnel:

2/23

X/20] 5/562

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 Tibunat
may 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,
The
Netisertands 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 Malaysia

Airlines 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 the
Charter of the United Nations, the lmernational Criminat Tribunal for Malaysia
Airlines FHight MHI7 (hereinafker referred to as "'the Tribunal"), shall function and
exercise 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 crimes
connected itb the downing of Malaysia Airlines flight MHI7 on t7 July
2014.
2,

Subject to paragraph !o the Tribunal has jurisdiction in accordance with this

Statute 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 2
War crimes
For the purpose of this Statute, war crimes means:

a)

The %tk)wing grave breach of the Geneva Conventions of 12 August

1949, namely, wilful killing when committed against a person protected
under the provisions of the Geneva Convention relative to the Protection
of Civilian Persons ill Time of War,

b)

Other serious violations of the laws and customs applicable in

international armed conflict, within the established f'ramework of
international law, namely, an}, of the following acts:

Intentionally directing attacks against the civilian population as

such or against individual civilians not taking direct part in
hostilities:
ii)

4/23

Intentionally directing attacks against civilian objects, that is,

objects which are not military objectives.

S/2O 5/5f2

c>

[n the case of ars armed conflict, not of an international ctsaracteL serious

vioJations of Article 3 common to the Geneva Conventions of]2 Augtst
I949. namely, viotesce to life and person hs partictar murder of" all
k ncs, nsutilatiom cruel reatmest and torture committed asaisst persons
taking ]o active part i] armed 1]ostilities.

d}

Offset serious violations oftle taws and customs applicable i,a armed
cors[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 not

taking direc; part in hostilities

Article 3
Crimes agai-as{ {he saty of eH avato
For the puipose of this SIatute. crimes against the safety of civi} aviation means
destroying, damaging or endangering the safeb.' of aircraft as defined in section 9 of

the Aviatior3 Off, noes Act 1984 ofMalaysia.

Article 4
Crimes ader he Crimira Code of UkraiHe

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

a}

Murder as defined in Article !15:

b)

Negtigen homicide as defined in Article 119:

c}

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

d)

SmIggi[ng as deflsed in Article 201;

e}

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

f}

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:

h}

Trespass against Ii'e of a foreign state representative as defined ir

Article 443.

Secto H
Provisos appeab}e to aH Crimes
Article 5

The Tribunal shall have jurisdiction over natural persons pursuant to the provisions
of the present Slatute.

Article 6
Exeusio ofjrsdictior oer pers<s rde eightee
The Triburla! shal ia,e no iurisdiction over any person wh_o was under the age of
g at he tirade ofhe alleged commissior of a crime.

5/23

S/2O/5/562
Article 7
Irrelevance of official capacity
This Statute shall apply' equally to all persons without any distinction based on
official capacity. Ii3 particular, official capacity as a Head of State or
Government, a member of a government or parliament, an elected
representative or a government official shall in no case exempt a person {'tom

criminal responsibility under this Statute, nor shall it, in and of itselK
constitute a ground for reduction of sentence.
2.

Immunities or special procedural rules which may attach to the official

capacity of a persom whether under national or international law, shall not bar
the Tribunal from exercising its jurisdiction over such a person.

Article 8
Statutes 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 for

crimes det]ned in articles 3 and 4 is extended by 15 years.

Article 9
Individual criminal responsibility
A person who commits a crime within the jurisdiction of the Tribunal shal! be
individually responsible a3d liable fkr punishment in accordance with this Statute.
Article 10
Concurrent jurisdiction
1.

The Tribunal and national courts sha!l have concurrent jurisdiction over
persons responsible for crimes connected with the downing of Malaysia

Airlines flight MH17 on 17 July 2014.

2.

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

3.

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

Arlicle I I
Ne bis in idem
Except as provided in this Statute no person shall be tried before the Tribunal
with respect to conduct that formed the basis of crimes for which the person
has been convicted or acquitted by the Tribunal.
2.

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.

3.

No person who has been tried by another court for conduct referred to in

article 1(2) shall be tried by the Tribunal with respect to the same conduct
unless the proceedings in the other court:

6/23

S/2@ 5/5(

a)

Were fcr the purpose of shieJding the person concerned flom crimirml

lesposibiUty for crimes within the jLHdsdiction of the Tribunal: or

Otherwise were not conducted
or
in
accordalsce with the norms o1[ due process recognized by imernational
law asd were conducted in a manner which, in the circumstances, was
iconsistem 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@e
Tribunal shall not be a ba to prosecution or punishmerm

Sectior H
Pro,0,dsiors appcaWc to crkaes defiaed Article 2
Artide 3
di,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 is

criminally responsible:

b}

Orders, solicits or induces rise commission of sods a crime which in fact

OCCt.HS OF iS attempted:

c)

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:

d)

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 criminal
purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the 'Fribulml; o

Be made in the knowUedge of the intention of the group to commit

the crime:

e)

Attempts to commit such a cNme by takimZ actions that commences its

execution by means of a s@astantial step, but the crime does not occur
because of circumstances
of the person's intentions,
HoweveL a person who abandons @e effort lo commit the crime or
otberise prevents the completion of the crime shall not be liable %r
punishment 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 14
Responsibility of commanders and other superim's

in addition to other grounds of crimina] responsibility under this Statute, in relation

to war crimes:

a)

A military commander or person effectively acting as a military

commander shall be criminally responsible for crimes within tte
jurisdiction of the Tribunal committed by forces mder his or her
effective command and control or effective authority and control as the
case may be, as a result of his or her failure to exercise control properly
over such (brces. where:
That military commander or person either knew or, owing to the
circumstances at the time, should have known that the l:krces were
committing or about to commit such crimes: and
That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress
their commission or to submit the matter to the competent
authorities for investigation and prosecution.

b)

With respect to superior and subordinate relationships not described in

paragraph (a). a superior shall be criminally responsible for crimes

within the jurisdiction of the Tribunal committed by subordinates under
his 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%rmation
which cJearly indicated, that the subordinates were committing or
about 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 measures

wittin his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.

Article 15
Grounds for excluding criminal responsibility for war crimes

In addition to other grounds for excluding crhninal responsibility provided for in

this Statute, a person shall not be criminally responsible for a war crime if, at the
time of that person's conduct:

a)

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

capacity to appreciate the unlawfulness or nature of his or her conduct, or
capacity 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 a

result of the intoxication, he or she as ]ikeiy to engage in co3ducl

constituting acrme within the jurisdiction of rise Tribunal:

c}

The person acts reasonably o defend l-Amsef or hersetfo another perso/s

or, 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 for
acconsp]is}3ing a military mssiom against an imminent and unlawful use
of force ha a mamser proport%nate to the degree of danaer to the person
or rise othel person or property protected. The fact that the person was
involved in a defcnsive operation conducted by forces shalI not is itself
constitute a roend for excluding criminaI responsibility under this

d)

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

of" the Tribuna has been caused b}. duress resulthg 13"ore a flsreat of
imminen death or ofcontinuig or imminent serious bodily harm against
tlsat person or anoder person, and tle person acts necessarily arid
reasonal:Ay to avoid t/sis lhreaL provided that the person does not istesd
to cause a reater harm than the one sought to be avoided. Such a tlsreat
may either be:
i)

Made by other persois: or

ii)

Constiluted by other circumstances beyond thaf person's control.

Article t6
Mistake of fad or mistake of law
A mistake of fact shall be a ground %r excluding criminal responsibility %r a
war crime only if it negates the mental element reqtAred by 1he crime,
2.

A mistake of taw as to vhefler a particular type of conduct is a war crime

shall not be a round for excludi]g criminaJ responsibility.

Article 17
Superior orders ad preseriptio of law
The *.act that a war crime has been committed by, a person pursuant to an order off a
government or of a superior, whether military ot civilian, shall not relieve that

person off criminal responsibility unless:

The person as under a tegal obligation to obe} orders of the
government or the superior in question:

(b) Fhe person did not know thai the order was unlawfll: and
The order was not manifestly tmlawfll,

9/23

S/2015/562

Section IV
Provisions applicable to crimes defined in articles 3 and 4
Article 18
Provisions applicable to crimes defined in article 3
With respect to crimes defined in article 3. the Tribunal shall apply section 13 of the
Aviation Offences Act 1984 of Malaysim and Chapters IV (General Exceptions),
V (Abetment) and VA (Criminal Conspiracy) of the Penal Code of Malaysia and
other provisions of the substantive criminal law of Malaysia considered relevant by
the Tribunal in the context of the specific criminal proceedings, and compatible with
this Statute and internationally recognised norms and standards.

Article 19
Provisions 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 of
Ukraine and other provisions of the substantive criminal law of Ukraine considered
relevant by the Tribunal in the context o{" the speci{?c criminal proceedings, and
compatible with the Statute and internationally recognised norms and standards.

Section V
Organization of the Tribunal
Article 20
Organs 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 21
Composition 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 in
the 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.

The Plesiden{ of the Tribmm may, ir the inlerests of justice, assigrl an

ahernalejudge 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

A{kb 22
Qtmiih'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 their

espective Slates for appoimmem to the highest judicial offices The),' shalt be
irdependent in the peformasce of their fusctions arid shall not accept or seek
i]!strt!ctiO13S ]*Om a%y>(*ovensmetst or a iv., other source.
2,

Every tsomilsee %r ffe positiol ofjtdge of the Tribmml shall have established
compete<e in crimMal taw and procedure, raking into accoum {he need t'o
the Tribmml to appb' imenmtioml lay,. as >.eII as the domestic laws of"
Mataysia and Ukrair< ad shalI peferably have retevam experietce, whe{he
as judge, prosecutor advocate or it, other simiIar capacity., i-n crimirm}

3,

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

Ar{kb 23
Appohtme{ ofjadges
At the invitation of the Secretary-General of the United Natioas Slates may

omi,mte cadidaes %r he position of judge of the Tribunal

The Secretory-Get, era[ shall appoint judges, as and whets the fmsctiordng of{he
Tribunal so requires. Appointmems are made upor} the recommeisda{io of a

selections paneJ he or s!e has established after indicatisg his or her imentiois
to "{he Security Comscil. The selections paneI shall be composed of two judges..
curremly shting o or rethed from an imermtional crimmat tribu3al, ad a
represemative of 1he Secretary-GeseraI
No two judges ol"de same mtionatity shall be appointed.
4.

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

A r{kqe 24
Powers of the Preside of the Tr[bua
The Presidem of {he Tribmml shaft be responsible %r essurisg the efficiecy
ad effectiveness of the Triburm!.

h addhio to his orler iudiciat functions the Presidem of theTribtmal shali

represem de Tribunal.
.),

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

11123

S/2{) 15/562
Article 25
Tile Prosecutor
1.

The Prosecutor shall be responsible iror investigations, taking ito account the

investigation by the Joint Investigation 'ream referred to in letter S/2014/903

dated 16 December 2014 (Joint Investigation Team). and l'or the prosecution of
persons responsible lk)r the crimes falling within the jurisdiction of the
Tribunal.
2.

The Prosecutor shal! act independently as a separate organ of the Tribunal tie
or 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 other
quanif'ied staff as may be required. With regard to the composition of the staff
the Prosecutor shall take into account the need to liaise effectively with the
next ofkh of victims,

,4.

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

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

5.

The Prosecutor shall be of high moral character and possess the highest level
of competence and experience in the conduct of investigations and
prosecutions of criminal cases. The Prosecutor shall serve tr a five-year term

and be eligible for reappointment. The terms and conditions of service of the
Prosecutor shall be those of an Under-Secretary-General of the United
Nations.
6.

The staff of the Office of the Prosecutor shall be appointed by the SecretaryGeneral on the recommendation of the Prosecutor.

Article 26
The Registry
!.

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

2.

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

3.

The Registrar shaH be appointed by the Secretary-General after consultation

with the President of tile Tribunal. He or she shall serve for a five-year term

and be eligible for reappointment. The terms and conditions of service of the
Registrar shall be those of an Assistant Secretary-General of tile United
Nations.
4.

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

recommendation of the Registrar.

5.

12/23

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 before
the Tribuna!, as wel! as a system of legal aid for representation of indigent or
partially indigent accused bere the Tribunal.

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 the
Prosecutor'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 28
Res of Proeedtre am;d Evidence

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

Section V
nvestgation atd proseetor
Ar{iee 29
Joit nvestigatio Team
The P'osecutor sisal[ receive and co;sider evidence collected by the Joint
Dvestigation Team.

Article 30
vestgatio ad preparatiot of idietme{
The Prosecutor shall initiate investigations propri( ,,,,(.#, or on {}e basis of
reformation obtained flom any somce, particularly from governments United
Natio;ls oea]ss Mteovefnmen{a!($ a]d nor>overnmentaI{) orga]izaions, as
secessary and appropriate, uddng imo account fl-e investigation conducted by
the ,toint Investigation Team The Prosecutor shall assess the information
received 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 or

arrangemert in accordace with its respective coml?eteBce or mandate:

d>

Agree sot to disclose, at any stage of the proceedings documents or

information 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)

3,

Take necessary measures, or request that necessary measures be taken, to

ensure tile confidentiality of inJk>rmation, the protection of ally person or
the preservation of evidence.

Upon a determination that a prima'jicie case exists, the Prosecutor shall

prepare an indictment containing a concise statement of the facts and the crime
or crimes with which the accused is charged under this Statute. The indictment
shall be transmitted to the Pre-Trial Judge.

Artide 31
Review of the indictment
1.

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 Prosecutor

he or she shall confirm the indictment. If not so satis}]ed the hdictment shaJJ
be dismissed.
2.

Upon confirma!,ion of an indictmet, the Pre-Trial Judge may. at the request of

the Prosecutor. issue such orders and warrants for the arrest, detention.
surrender or transfer of persons, and any other orders as may be required fbr

1he conduct oithe trial

Section VII
Rights of the accused and other persons
Article 32
Rights 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 confess

guilt:

b)

Shall not be subjected to any, form of coercion, duress or threat, to torture

or to any other brm of cruel inhuman or degrading treatment or
punishment:

c)

Shall. if questioned in a language other than a language the person fuJty

understands and speaks, have. free of ally COSt, the assistance of a
competent 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 be

deprived of his or her liberty except on such grounds and in accordance
with such procedures as are established in this Statute.
2.

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 either
by It]e Prosecutor, or by national authorities pursuant to a request made by the

Tribunal, that person shall also have the following rights of which he or she
shah be infnrmed prior to being questioned:

a)

To be informed, prior to being questioned, that there are grounds to

believe that he or she has committed a crime within the jurisdiction of

the Tribunal:

!4/23

S/2015/562

b)

To remains silenL without such silelsce befrg a co]sideatol ir llie

determilsation ofguiIt or i!socelsce

c)

To have iegaB assistace of the persors choosigo or if the perset does

not have legal assistance, to have tegai assistace assirled 1o !im o he
in any case where the itterests of justice so equire. asd without payme,at
by the person il any stch case if tlse person does -ot have sufficie;st
meass to pay for it: and

d)

To be questioned in the presence of cousseI unless the persor has

vokmtaily waived Isis or her right to cousse[

AIMe 33
Rights 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 to
convict the accused, the Tribunal must be colsvisced of the guiIt of the accused
beyoisd reasolsabJe dosbL
2.

hi the determinathm of aiy charge, the accused shall be emitled to a pubtic

hearing, havisg regard to the provisioss of this Stattte to a fair [searig
colsducted 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 of

the charoe_ in a larmuaae wlsich the accused futly undestalsds arid

b)

To have adequate time and facilities %r the pleparation of the defence

ad to commus[cate fleely sith colmse! of the accused's choosing in
colf'idence

c)

To be tried without undue delay:

d)

Witlsout prejudice to article 38, to be presem at the trial, lo cow, duct the
defece in perso or through Iega assistance of flie accused's choosbsg
Io be i,fformed, if the accused does not have legal assistace, of this right
asd to have Jegal assistance assigned by the TribtmaI in any case shere
the [merests of justice so require, asd without payme,st if rise .accused
acks sufficient means to pay %r it:
To examine, or [save examined, the witnesses against him or iser arid to
obtain the attendance and examhatios of witnesses on Ms or her behalf
u,sder the same cor, ditios as witnesses against him or her The accused
shall also be e,stitled to raise defesces and to preset other evidence

admissible trader this Statute:

To have. fiee of asy cost. the assistace of a competest inteqsreter and

such traslatios as are necessary 1o meet the equirements of fairness it"
any of the poceedhsgs of or docmssems presented to the Tribunal are not
ils a anguage which the accused fuily msderstands asd speaks;
Not to be compelJed to testif}/ or 1o confess guilt and to remains siiesL
wit[sour such s[/esce beisg a cossideration i the determiatior of guilt
or 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 the
Prosecutor'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, or

which may affect the credibility of prosecution evidence. I[n case of doubt as to
the application of this paragraph, the Tribunal shall decide.
Article 34
Protection of witnesses
['be Tribunal shah take appropriate measures to protect the safety, physical
and psychological well-being, dignity and privacy of witnesses. In so doing,
the Tribunal shall have regard to all relevant factors, inchding age, gender and
heath, and the nature of the crime. The Prosecutor shall take such measures
particularly during the investigation and prosecution of such crimes. These

measures shal not be prejudicial to or {nconsistent with the rights of the

accused and a fair and impartia! triat.
2.

As an exception to the principle of public hearitags provided for i article

36(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 conducted
prior to the commencement of the trial, withhold such evidence or information
and instead submit, a summary thereof. Such measures shall be exercised in a

manner which is not prejudicial to or inconsistent with the rights of the

accused and a fair and impartial trial,

Artiek 35
Confidential information
A State may make an application for necessary measures to be taken in respect of
the protection of is servants or agents ad the protection of confidential or sensitive
information.

Section VIII
Conduct of proceedings
Article 36
Commencement and conduct of trial proceedings

The Trial Chamber shall ensure that a trial is fair and expeditious and that
proceedings are conducted in accordance with the Rules of Procedure and

Evidence, with full respect for the rights of the accused and due regard for the
protection of witnesses.

16/23

S/2015/562

2.

A person agairst whom an indictment has bee confirmed shaIlo pursuant o an

oder or an arres warrant of the Tribunal,, be taken ito custody, immediaely
informed of the cbages against him and transferred to the ]'ribmal.

The Trial Chamber shall read fle indictmett, satis],' itseiflhat the nights of the
accused are respecle& confirm 1hal tle accused understa]ds fl'e indiclment
and isslruct the accused to enter a plea ]!e Trial Chamber shai risen set the
date for trial.
4.

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

Ar{kie 37
Powers of the Chambers

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

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

A Chamber may receive rise evidence of a witness orally or where the imerests
of 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 may

take judicial otice of flem.

6.

Evidence obtailed by means of a violadon of this Slatute or irtlernationally

recognized 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 would
seriously damage the hvegrity of the proceedings.

7 When deciding or the relevance or admissibiiily of evidence collected by a

State fle Chamber shall not rule o the application oflbe State's national lay<
8.

in cases isot oflserwise provided %r in rise Rules of Procedure and Evidence, a

Chamber shall

rules of evidence that will best favour a hir

determiatio of the matter before it and are colsonant with the spiril of fle
Statule and the gelerat principles of law.

Ar{ide 38
Trias @ abse,tia
The ]ribunai may corduct trial, proceedings i the absence of the accused, if
he or she:
a}

Has tsot beet handed over to the Tribuna by fle State authorities
concerned; ot

t7/23

S/2015/562

b)

Has absconded or otherwise cannot be %und and all reasonable steps

have been taken to secure his or her appearance before the Tribunal and

to inl\rm him or her of the charges confirmed by the Tribunal

,

When hearings are conducted in the absence of the accused, the Tribunal shall
ensure that:

a)

The accused has been notified, or served with the indictment, or notice

has otherwise been given of the indictment through publication in the

media or communication to the State of residence or nationality:

b)

The accused has designated a defence counsel of his or her own

choosing, to be remunerated either by the accused or if the accused is

proved to be indigent, by the Tribunal:

c)

Whenever the accused refuses or faiJs to appoint a defence counsel, such

counsel has been assigned by the Tribunal with a view to ensuring f`ull
representation of the interests and rights of the accused.
3.

hi case of conviction h als'Htia, the accused shal! have the right to be retried
in his or her presence befkre the Tribunal unless he or she accepts the

judgment or had waived expressly and unequivocally his or her right to be

present at the trial.

Article 39
Plea agreement
1.

The Prosecutor and the Defence may agree that. upon the accused entering a
plea of guilty to the indictment or to one or more counts of the indictment, the

Prosecutor shah do one or more of the following before the Trial Chamber:
a) apply to amend the indictment accordingly:
b) submit that a specific sentence or sentencing range is appropriate;
c)

2.

not oppose a request by the accused for a particular sentence or

sentencing range.

The Trial Chamber shall not be bound by any agreement speciiied in

paragraph 1 but shall duny consider it, taking into account the importance of an
efficient and expeditious crimhlal procedure.

Article 40
Offences against the administration of justice
!,

The Tribunal shall have jurisdiction over the following offences against its
administration of justice when committed intentionally:
a) Giving t;alse testimony when under an obligation to teJl the truth:
b) Presenting evidence that the party knows is false or tkrged:
c)

Corruptly influencing a witness, obstructing or interfering with the

attendance or testimony of a witness, retaliating against a witness for

giving testimony or destroying, tampering with or interf`ering with the

collection of evidence:

18/23

ql2(H 51562

or corruptly irftsencirg an official of the

TribunaU br the ptrpose of folcing or persuadirg d-e official not to
peR}rm, or to perforrn improperly his or her dulies:

e)

Retaiialirg against an official of the Tribunal on accoum of duties

perf'ormed by dmt or another oITicial:
Soliciting* or accepting a bribe as an official of{he 7ribmm} in connection

wiff his or her official duties

The Tribunat shall have jurisdiction over offences agahss the administration of
justice commilted by naturaI persons and legal person.<
The principles and procedures governing the Tribunais exercise oF jurisdiction
over offsnces under this aticle sha[! be those povided fc, r in the Rules of
Proced/re and Evidence
Its Je event of conviction, le Tribuna[ may impose a term ofimprisonmem
not exceeding fbe years, or a fine in accordance witl the Rles of Procedure
and Evidence. or both.

Article 41
The Tria! Chamber% judgmen sbal be based on its evaluation of the evidence
and the entire proceedings. The jdgment shall not exceed the facts and
circumstances described in the charges and any amendmems to the charges.
fhe Tribunal may base its judgmem only on evidence submit'ted and discussed
before it at the tr{al.

The judges sha[ attempt to achieve unasimity in their iudgmem liting which
the decision sha[I be Iaken by a majority of the judges.

3.

The de[iberaors of the Trial Chamber shall remain secret.

4.

The judgment shall be in writing and shal! contain a full alsd reasoned
statement of the Trial Chamber% findings o "the evidence and concksions.

The Trial Chamber shall issue one judgment When here is no urmnimib< the
Trial Chamber% judgmem shatl contain Je vies of the majority and the
rninority The judgment or a summary thereof shall be delivered in open cour

Ar{ieb 42
Parkipa{br of frhe ext of kb of' k4ims
The Tribunal shall permit the t}ext of kin of victims to presem their views and
concerns at the sentencing stage off fle proceedings, in a manner that is; not

prejudicial to or inconsistent with the rights of the accused and a fair and impartial
trial, and i accordance with the Rules ofiProcedure and Evidence.

The Trial Chamber shall hrpose upon a convicted person imprisomsem- for a
specified number of years which may ot exceed a maximum of 30 years or

for life when justified by the extreme gravity of the crime and the individuai
circumstances of the convicted person n

the terms of

%2 3

S/2(}15/562

inprisonmeiI f'or the crimes provided for in this Statute, the Trial Chamber
shall have recourse to international practice regarding prison sentences and,
where appropriate, to the practice of" the national courts of Ukraine or
Malaysia.
2=

111 imposin,, semence, the Trial Chamber should take into account such factors

as the gravity of the offence and the hldividual circumstances of the convicted
person.
3,

In imposing a sentence of imprisonment, the Tribunal shall deduct the time, if

any. previously spent in detention in accordance with an order of the Tribunal.
The Tribunal may deduct any time otherwise spent in detention in connection
with conduct underlying the crime.

4,

When a person has been convicted of more than one crime, the Tribunal shall
pronounce a sentence for each crime and a joint sentence specifying the tolal

period of imprisonment. This period shall be no less than the highest

individual sentence pronomced and shall not exceed 30 years imprisonment or
a sentence of life inprisonment in conformity with paragraph I.

Article 44
Compensation to next of kin of victims
1.

The Tribunal may make an order directly against a convicted person

specifying compensation to next of kin of victims. In its order the Tribunal

shall determine the scope and extent of any damage, loss and injury in respect

of next of kin of victims and shall state the principles on which it is acting,
taking into account any other compensation available.
2.

Nothing in this article shall be interpreted as prejudicing the rights of next of

kin of victims under national or imernationat law.

Article 45
Appellate proceedings
!. The Appeals Chamber shall hear appeals lom persons convicted by the Trial
Chamber o1" from the Prosecutor on the following grounds:
a)

an error on a question of law invalidating the decision: or

b)

an error of {'act which has occasioned a miscarriage of justice.

2.

A sentence may be appealed, in accordance with the Rules of Procedure and

Evidence, by the Prosecutor or the convicted person on the ground of
disproportion between the crime and the sentence.

3.

The Appeals Chamber may affirm, reverse or revise the decisions taken by the
Trial Chamber.

4.

Article 41 applies mzaa:is mz:ta,Tdis, as appropriate.

Article 46
Review proceedings
Where a new fact has been discovered that was not known at the time of the

proceedings before the Trial Chamber or the Appeals Chamber and which

20/23

S/2{H 5/562

could have been a docisive 'actor in reaching the decision tIe convided
penson or the Prosecutor may submit o the Tribunal an appIicutio fbr review
o the iudgmerit.

An apNica{iot ttor review shat! be submkted to the Appeals Chambei, The

Appeals Chamber may rojed the appHcatior if it considers ii to be unt\,tmded.
I;4"it determines that the application is meritorious it rrmy as appropriate:

a}

Reconvene @e THai ChambeK

b)

Retain .jurisdiction over the matter.

Article 41 applies mi.v mundiv as appropriate

id[ele 47
Edb'eeme{ of seterH:es

Imprisonment shall be served in a Slate designated by the Tribunal from a list of

States that Dave i,dicated to the Security Comwil theh Aillingness to accept
co,vlcted persons. Such imprisonment shall be in accordance ,ith the applicable
law of" the State concerned, at@ sbai/ be consistent with
international standards, sub.iect to the supervision o1" @e Tribunal.

Adiele 48
Pardo o eommtatior of selerces

/ pLrsuat to the applicable taw of the State in which the convicted person is
imprisoned, he or she is eligibIe for pardon or commutation of sentence, de State
concerned shall notif2}/ be Tribunal according/). The President of the Tribunal. in
coBsultation with the .ludges. shall decide the matter on de basis of the interests oF
.}ustice and tDe general principles of law

Article 49
Trarsfer of eorvded persoHs po eomplelior of se;tenee
Following @e completion ofhe sentence, a person who is not a national of the State
of" enforcement may. in accordance with the law of @e State of" enf'ocement, be
transferred to a State that is obliged to receive him or her. or to another State >lich
agrees to receive him or her, taking into account aru ",ishes of" the person 1o be
trans'rred to that State, unless the State of enforcemem au@orizes the person to
remain in its terNtory.

Seedon IX
Ooooperado and jdieial assistaee
Article 50
o-operatiot ad jdkqal assis{aee
States s}all co-operate wkh the Tribunal h the investigation and prosecution
of persons accused of havh3g committed crimes within the jurisdiction of" the
TNburlal.
2=

States shall comply without urtdue delay with any lequest for assistarce or an
oder issued by the Tribuml, iBchdhsgo but not limited to:

2V23

S/2(!l 5/562
a) the identification and location of" persons;
b) the taking of testimony and the production of evidence:
c)

the service of documents:

d)

the arrest or detention of persons:

e)

the surrender or the transfer of the accused to the Tribuna!.

Article 51
Proleclion of lalioaal security iatbrmation
l,

This article applies in any case where the disclosure of the information or
documents of a State would, in the opinion of that State, prejudice its national
security interests. This article shall also apply when a person who has been
requested to give hlforrnation or evidence has refused to do so or has referred

the matter to the State on the ground that disclosure would preiudice the
national security interests of a State and the State concerned confirms that it is
of the opinion that disclosure would prejudice its national security interests.
.

Nothing in this article shall preiudice the requirements of confidentiality

applicable under other articles of this Statute.

3,

If a State learns that in{'ormation or documents of the State are being, or are

likely to be, disclosed at any stage of the proceedings, and it is of the opinion
that disclosure would prejudice its national security interests, that State slmll
have the right to intervene in order to obtain resolution of the issue in
accordance witt this article.
.

IL in the opinion of a State, disclosure of in%rmation would prejudice its

national security interests, all reasonable steps will be taken by the State,
acting in conjunction with tte Prosecutor. file defence or the Pre-Trial Judge or
Trial Chamber. as the case may be, to seek to resolve the matter by cooperative
means. Such steps may include:

(a)

Modification or clarification of the request:

(b)

A determination by the Tribunal regarding the relevance of the

information or evidence sought, or a determination as to whether the
evidence, though relevant, could be or has been obtained from a source
other than the requested State:

(c)

Obtaining the in%rmation or evidence from a different source or in a

different form: or

(d)

Agreement on conditions under which the assistance could be provided

including, among other things, providing summaries or redactions,
limitations on disclosure use of in camcra or ex parlc proceedings, or
other protective measures permissible under the Statute and the Rules of
Procedure and Evidence.

5.

Once all reasonable steps have been taken to resolve the matter through
cooperative means, and if the State considers ttat there are no means or
conditions under which the information or documents could be provided or

disclosed without prejudice to its national security interests, it shall so notify

the Prosecutor or the Tribunal of the specific reasons for its decision, unless a

22/23

S12(} 51562

specific descriptiols of lile easo;ls woutd itself secessarily result in such

plqitdice to the State's natiolal sectwity interests.
TheeafleL if the 'Fribtma/ determies that the evideice is relevam and
necessaT, for the establishment of die gtlilt o inrocence of the accused and
tile State denies the nequest for assistance in whole or in l')at,, the DibunaJ may
make such inference in the triat of tile accused as to the eistence of
nonexistence of a fad,, as may be appropriate in die circumstances.

Ardck 52
Thirdq}arty iffo-mado o doeumets
if a State is requested by the Tribsna! to provide a document or information in is
custody, possession or control, ,aMch was discIosed to it hi confidence by a Stat<
intergovernmenta/ organization or international o'ganizationo file State shall seek tile
conseli o[" the originalor to disclose that document or irlkyrmatiom The State shaJl
eiflter consent to disclosure of die hs%rmadon or doctmsent or undertake to resolve
the issue of" disclosure with the Tribunal. v, ithout pr@udice to the provisions of
article 5 1.

Section X
Ph4eges and mmmides, seat asd expe - ses
Adicle 53
Privileges ad mmities of {he TFibtHa
The Convention on the Privifeges and lmmulities of tile United Nations of
13 February' 1946 shall apply to the '['ribulaL the judges, the PIosecutor and
isis or her staff\ and the Registrar and his o her staff.
2.

The judges, the P'oseculor and the Registrar shall enjoy tile }rivieges and
immunities, exemptions and faciIities accorded to
envoys, in
accordance sith international law.

The staff of the Prosecutor and of the Registrar shall enjoy the }rivieges and
immunities accorded to officials of" the United Nations under articles V and
V[1 of the Convenlion referred to in paragl'aph I.

Other persons including tile accused, required at the seat of the Tribunal shall
be accorded such treatment as is necessary %r the proper fundioting of the
Tribunal.

Adiee 54
Seat of the Tribtaa
The Tdbunat shaII have its scat in the Netherlands
Artiek 55
Expe-ses of the Tba
The expenses ofifile Tribuval shall be borse by vohmtar}' contributions from States

23/23