Author: Karel De Meester

Updated: 30 June 2016

Article 53(1)(c)

[425] (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice
While the first two subparagraphs of Article 53 (1) encompass requirements which should be satisfied for the Prosecutor to proceed with an investigation, subparagraph (c) encompasses considerations which may lead the Prosecutor not to proceed with the investigation of a situation. Hence, this subparagraph does not require the Prosecutor to determine that the investigation is in the interests of justice in order to proceed with an investigation (Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, par. 63). Unlike Article 53(1)(a) and (b), which require the application of exacting legal requirements, Article 53(1)(c) ICC Statute leaves discretion with the Prosecutor to open an investigation (Situation on the Registred Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC PT. Ch. I, ICC-01/13, 16 July 2015, para. 14). The most problematic feature of subparagraph (c) is that the term ‘interests of justice’ has been left undefined. It is unclear as to whether the drafters envisaged a narrower conception of justice (as referring only to ‘criminal justice’) or a broader one (including ‘restorative justice’ interests). While this lack of clarity leaves considerable discretion with the Prosecutor, this discretion is not unchecked. The Prosecutor should inform the Pre-Trial Chamber if a decision to not initiate investigations or prosecutions was solely gauged on the ‘interests of justice’. Furthermore, arbitrariness is avoided by the condition of ‘substantial reasons’, which requires the Prosecutor to produce convincing reasons not to open an investigation. The Prosecutor labelled this concept “one of the most complex aspects of the Treaty” (OTP, Policy Paper on the Interests of Justice, ICC-OTP-2007, September 2007, p. 2). It raises difficult issues, such as whether the reliance on alternative justice mechanisms qualifies as ‘unwillingness’ in the sense of Article 17 ICC Statute.
   The Prosecution’s understanding of the ‘interests of justice’ concept is to be found in its ‘Policy Paper on the Interests of Justice’ (OTP, Policy Paper on the Interests of Justice, ICC-OTP-2007, September 2007). The Prosecution considers the interests of justice to be a “course of last resort” (ibid., p. 9). The paper emphasises the exceptional nature of the ‘interests of justice’ criterion but does not engage in a detailed discussion of the factors that underlie it. Nevertheless, it sets out the four main considerations underlying the OTP’s interpretation. Firstly, (i) the paper stresses the exceptional nature of the ‘interests of justice’ criterion and sets out a general presumption in favour of investigations and prosecutions. This implies that there is no precondition that an investigation is in the interests of justice. Besides, (ii) criteria are to be guided by the object and purpose of the ICC Statute (prevention of serious crimes of concern to the international community through ending impunity) and (iii) a distinction should be drawn between ‘interests of justice’ and ‘interests of peace’. Lastly, (iv) the Prosecution is under a duty to notify the Pre-Trial Chamber of any decision not to investigate or prosecute in the interests of justice (ibid., p. 1). The OTP policy paper does not detail all of the factors to be considered when a situation arises, provided that “each situation is different” (ibid., pp. 1, 9).
   The OTP’s policy paper goes some way in clarifying the meaning of some of the other terms used in Article 53 (1)(c) ICC Statute. With regard to the understanding of the ‘gravity of the crime’ factor, the paper refers (at the situations stage) to the same considerations as with regard to Article 53 (1)(b) and 17 (1)(d) ICC Statute (to know the scale of the crimes, the nature of the crimes, the manner of their commission and their impact) (ibid., p. 5). This overlap is understandable, insofar that the reference was seemingly only inserted to satisfy the concern of delegations “that the interests underlying the complementarity principle sufficiently permeate the Statute” (Bergsmo and Kruger, 2008, p. 1071; Webb, 2005, p. 327).
   Nevertheless, the inclusion of gravity considerations into Article 53 (1)(b) would not make much sense if the criterion would be identical to the gravity requirement found in Article 53 (1)(c) ICC Statute. The wording of paragraph (c) ‘gravity of the crime’ suggests that its meaning should be different from subparagraph (b). So far, however, the jurisprudence has not addressed the distinction between these two notions.
   As far as the ‘interests of victims’ are concerned, the OTP’s policy paper notes that victims have the interest ‘to see justice done’ but acknowledges that other considerations, such as the safety of witnesses, should be measured in (OTP, Policy Paper on the Interests of Justice, ICC-OTP-2007, September 2007, p. 5). Hence, while this factor will normally weigh in favour of investigation or prosecution, this will not always be the case.

Cross-references:
Rules 104 and 105

Author: Karel De Meester

Updated: 30 June 2016

Article 53(1) in fine

[426] If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.
It follows from the last subparagraph of Article 53(1) that in case of a decision not to proceed, solely on the basis that continuing with an investigation is not in the interests of justice, the Prosecutor should inform the Chamber of the reasons thereof. He or she shall inform the Pre-Trial Chamber in writing and promptly after taking that decision (Rule 105(4) ICC RPE).

Author: Karel De Meester

Updated: 30 June 2016

Article 53(2)

[427] 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:
The second paragraph of Article 53 concerns the situation where the Prosecutor, on the basis of information and evidence gathered during the investigation, decides whether or not there is a ‘sufficient basis’ to continue with a prosecution. The evaluation under Article 53(2) resembles the evaluation under Article 53 (1). Like Article 53 (1), the test for prosecution consists of three prongs. It follows from Regulation 29(5) of the Regulations of the OTP that in selecting potential cases for prosecution within a situation, the Prosecution will mutatis mutandis apply the same steps as for the selection of situations and will analyse issues of jurisdiction, admissibility (including gravity) and the interests of justice. This is not to say that there are no differences between the two paragraphs. Overall, the parameters which are found in paragraph (2) are stricter than those for the commencement of an investigation. At this stage, the contours of the likely cases will have been shaped further. The threshold of ‘a sufficient basis for a prosecution’ is stricter than the ‘reasonable basis to proceed’ threshold in Article 53(1). The threshold differs from the ‘reasonable basis’ test in Article 53(1) ICC Statute, insofar that it applies at a different stage. It follows from the travaux préparatoires that such different formulation was a deliberate choice (United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, Rome, U.N. Doc. A/CONF.183/13 (Vol. III), 15 June - 17 July 1998, p. 292: “in Article 54, the words "reasonable basis" and "sufficient basis" are used intentionally in different paragraphs”). The threshold has not yet been further defined in the jurisprudence. The negative formulation of the standard under Article 53(2) (‘If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution’) betrays that it is presumed that one or more prosecutions will follow from an investigation into a situation.

Cross-references:
Regulation 38

Author: Karel De Meester

Updated: 30 June 2016

Article 53(2)(a)

[428] (a) There is not a sufficient legal or factual basis to seek a warrant or summons under Article 58
Rather than requiring a ‘reasonable basis to believe’, Article 53(2)(a) ICC Statute refers to a stricter ‘sufficient basis to seek a warrant or summons under Article 58’ as the threshold for proceeding with a prosecution. It is recalled that the standard for the issuance of a warrant of arrest or a summons to appear, ‘reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court’, has been equated by the Court’s case law with the ‘reasonable suspicion’ standard, which can be traced back to Article 5(1)(c) ECHR (Prosecutor v. Lubanga, ICC PT. Ch. I, ICC-01/04-01/06, 10 February 2006, par. 12 (annexed to Prosecutor v. Lubanga, ICC PT. Ch. I, ICC-01/04-01/06-8, 24 February 2006)).

Author: Karel De Meester

Updated: 30 June 2016

Article 53(2)(b)

[429] (b) The case is inadmissible under Article 17
Likewise, the consideration of admissibility under Article 53(2)(a) is more specific in nature than under Article 53(1)(b) (‘the case is or would be admissible’). Pre-Trial Chamber II confirmed that while the admissibility check at the situation stage encompasses ‘potential cases’, “the test is more specific when it comes to an admissibility determination at the ‘case’ stage” (Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC PT. Ch. II, ICC-01/09-01/11-101, 30 May 2011, para. 54; Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC PT. Ch. II, ICC-01/09-02/11-96, 30 May 2011, para. 50). Nevertheless, although Article 53(2) is concerned with specific cases, it follows from the Court’s case law that the ‘case’ stage only “starts with an application by the Prosecutor under Article 58 of the Statute for the issuance of a warrant of arrest or summons to appear, where one or more suspects has or have been identified” (ibid., para. 50; Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC PT. Ch. II, ICC-01/09-01/11-101, 30 May 2011, para. 54). That said, it is not clear why a case only exists with the ‘Article 58 stage’ of proceedings. It is recalled that Pre-Trial Chamber I defined a ‘case’ in Lubanga as including “specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects” (Situation in the DRC, ICC PT. Ch. I, ICC-01/04-101, 17 January 2006, para. 65; Prosecutor v. Lubanga, ICC PT. Ch. I, ICC-01/04-01/06-20-Anx2, PT.Ch. I, 10 February 2006, para. 21). Individuals will most likely already be the focus of investigations before the issuance of a warrant of arrest or a summons to appear (Safferling, 2012, p. 94 (arguing that the situation becomes a case somewhere between the identification of individuals and the decision to prosecute a case); Stegmiller, 2011, pp. 119 – 120, 419). Because of this apparent inconsistency, it has been suggested to introduce an additional distinction between ‘cases in a narrower sense’ and ‘cases in a broader sense’. This entails that a case sensu stricto only exists after the issuance of a warrant or summons. However, a case considered in the broader sense (or ‘case hypothesis’) exists already earlier during investigations (ibid., p. 419).
With regard to the admissibility determination at the ‘case’ stage, the Appeals Chamber determined that a case ‘being investigated’ must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court (Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC A. Ch., ICC-01/09-02/11-274, 30 August 2011, para. 39; Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC A. Ch., ICC-01/09-01/11-307, 30 August 2011, para. 40). The test was first adopted by Pre-Trial Chamber I in the Lubanga case (ICC, Prosecutor v. Lubanga, ICC PT. Ch., ICC-01/04-01/06-20-Anx2, 10 February 2006, para. 37; see also Prosecutor v. Harun and Kushayb, ICC PT. Ch. I, ICC-02-05-01/07, 27 April 2007, para. 24 – 25). While, for the reasons explained above, it remains uncertain whether the admissibility determination at the ‘case’ stage also applies at the Article 53(2) stage, the test will in any case be stricter than under Article 53(1)(b).

Author: Karel De Meester

Updated: 30 June 2016

Article 53(2)(c)

[430] (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;
Finally, also the formulation of the ‘interests of justice’ requirement differs slightly from the formulation in Article 53(1)(c). In line with Article 53(1), discretion regarding what cases to prosecute mainly enters through the consideration of this requirement (See e.g. Turone, 2002, p. 1173). The ‘interests of justice’ criterion in Article 53 (2) (c) is formulated broader than Article 53(1)(c). From the formulation ‘taking into consideration all circumstances’ clearly follows the non-exhaustive nature of the enumeration of factors to be considered. Criteria expressly listed are: (1) the gravity of the crime, (2) the interests of victims, (3) the age or the infirmity of the alleged perpetrator and (4) his or her role in the alleged crime. These two latter criteria, which refer to the particular circumstances of the accused, are not included under Article 53(1)(c) given that, at that stage, the accused will often not be known yet. With regard to these ‘particular circumstances of the accused’ (Article 53(2)(c) ICC Statute), the OTP’s strategy is to focus on those bearing the greatest degree of responsibility, and to consider factors including “the alleged status or hierarchical level of the accused or alleged implication in particularly serious or notorious crimes”, or “the significance of the role of the accused in the overall commission of the crimes and the degree of the accused’s involvement” (OTP, Policy Paper on the Interests of Justice, ICC-OTP-2007, September 2007, p. 7). In some instances however, these ‘particular circumstances of the accused’ will prevent the accused from being prosecuted; for example, if the accused were to be terminally ill or if a suspect is the victim of serious human rights abuses (ibid., p. 7). Furthermore, depending on the facts of the case or the situation under consideration, the Prosecutor’s strategy is to also consider (i) other justice mechanisms and (ii) peace processes (ibid., pp. 7-9).

Cross-references:
Rule 106

Author: Karel De Meester

Updated: 30 June 2016

Article 53(3)

[431] 3. (a) At the request of the State making a referral under Article 14 or the Security Council under Article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.
(b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.
Subparagraph (3) includes an important check, in the form of judicial control, over prosecutorial discretion. Two scenarios are included. Firstly, (a) in case of a referral, the Pre-Trial Chamber may review the Prosecutor’s decision to not proceed with an investigation or prosecution. The Pre-Trial Chamber may do so upon request by the referring State or the Security Council within 90 days following notification of the decision (Rule 107(1) ICC RPE). On this basis, Pre-Trial Chamber I reviewed the Prosecutor's decision not to initiate an investigation in the situation with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip (Situation on the Registred Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC PT. Ch. I, ICC-01/13, 16 July 2015). The Pre-Trial Chamber clarified that its power under Article 53(3)(a) differs fundamentally from the competence it possesses pursuant to Article 15 ICC Statute - which serves as a check on the powers of an independent prosecutor – in that it presupposes the existence of a disagreement between the Prosecutor and the referring entity. Hence, the review is limited to the parameters of the disagreement and does not imply a review de novo of the Prosecutor’s assessment pursuant to Article 53(1)(a) ICC Statute (ibid., para. 9 - 10). Secondly, if a decision not to proceed is solely based on the interests of justice, the Pre-Trial Chamber may itself review a decision to not proceed within 180 days following notification (Rule 109 ICC RPE).
   This review mechanism presupposes that the referring State or the Security Council (53(3)(a)) or the Pre-Trial Chamber (53(3)(b)) be informed of any prosecutorial decision taken to not investigate or to not prosecute. In this respect, a duty of notification has been included in Rules 105 and 106 ICC RPE respectively. It is in the discretionary nature of this review obligation (‘the Pre-Trial Chamber may review’) that potentially lays its most important limitation. No obligation is incumbent on the Pre-Trial Chamber to act upon a request. To meaningfully exercise its task, the Pre-Trial Chamber may request the Prosecutor to transmit the necessary information or documents in his or her possession or the summaries thereof. In case the Pre-Trial Chamber decides to exercise its review function upon a request by the referring State or the Security Council (Article 53(3)(a)), this power is provided for under Rule 107 (2) and (3) ICC RPE. If the Prosecutor exercises its power to proprio motu review a decision by the Prosecutor not to proceed, Regulation 48(1) of the Regulations of the Court encompasses the Pre-Trial Chamber’s power to ‘request the Prosecutor to provide specific or additional information or documents in his or her possession, or summaries thereof, that the Pre-Trial Chamber considers necessary in order to exercise the functions and responsibilities set forth in Article 53(3)(b)'. However, the existence of such a power, in the absence of any express decision not to proceed, has occasionally been contested by the Prosecutor. In the Uganda situation, Pre-Trial Chamber II convened a status conference in order to seek further information from the Prosecutor confirming that the Prosecution did not intend to further investigate past crimes and that the investigation was nearing completion (Situation in Uganda, ICC PT. Ch. II, ICC-02/04-01/05-68, 2 December 2005, para. 8-9). The Prosecution subsequently denied that a decision not to prosecute further crimes had been taken (Situation in Uganda, ICC PT. Ch. II, ICC-02/04-01/05-76, 11 January 2006, para. 8). Whenever the Pre-Trial Chamber requests additional information from the Prosecutor, it should take measures to protect the documents and the safety of the victims, witnesses and family members (Rule 107(3) ICC RPE and Regulation 48(2) of the Regulations of the Court).
   In the scenario of a request for review by a State or by the Security Council, the Pre-Trial Chamber may either confirm the decision by the Prosecutor or request the reconsideration of that determination, an obligation which the Prosecutor should fulfil as soon as possible. The Pre-Trial Chamber will request the Prosecutor to reconsider the decision “if it concludes that the validity of the decision is materially affected by an error, whether it is an error of procedure, an error of law, or an error of fact” (Situation on the Registred Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC PT. Ch. I, ICC-01/13, 16 July 2015, para. 12). Nothing prevents the Prosecutor from reaching the same conclusion upon reconsideration. While Article 53(3)(a) only speaks of referrals, nothing seems to prevent the information provider (other than a State Party or the Security Council) from filing a motion to the Chamber prospecting the reasons for which a judicial review on its own initiative could be desirable and practicable (Turone, 2002, p. 1158).
   If a negative decision is solely based on Article 53(1)(c) or Article 53(2)(c) the Prosecution’s decision may only become effective if the Pre-Trial Chamber confirms it. It follows that the Pre-Trial Chamber’s revision may lead to a judicial order to investigate or prosecute (‘shall’) (Rule 110(2) ICC RPE). Such a possibility is known to some civil law jurisdictions. However, the term ‘investigation on judicial command’ only makes sense in case of a notitia criminis referred by another source. Besides, the possibility of an investigation on judicial command may be problematic insofar that nothing prevents the Prosecutor from conducting a “perfunctory and superficial” investigation (Schabas, 2007, p. 245).
   Some commentators have suggested there exists a duty to review the Prosecutor’s decision (“In order to be valid such decisions must be confirmed by the PTC”) (Bergsmo and Kruger, 2008, p. 1075). Others have interpreted this provision as implying that the decision not to proceed with an investigation or prosecution only becomes effective if the Pre-Trial Chamber reviews the Prosecutor’s decision (Razesberger, 2006, p. 108; Wouters et al., 2008, pp. 297, 302). However, a textual interpretation suggests that judicial review is not a prerequisite for the Prosecutor’s decision to be effective in case a decision not to proceed is solely based on the ‘interests of justice’. Logically, the second sentence of paragraph (b) of Article 53(3) ICC Statute (‘[i]n such a case’) refers to the situation outlined in the previous sentence, and leaves discretion to the Pre-Trial Chamber whether or not to review such a decision. Overall, however, the structure of Article 53(3) suggests that closer scrutiny is provided for in case of a decision not to investigate or prosecute, solely based on the interests of justice.
   In the Situation in the DRC, the Prosecutor submitted that no decision not to proceed against Mr. Bemba on the basis of ‘the interests of justice’ with respect to crimes allegedly committed in Ituri had been taken. Hence, Pre-Trial Chamber I concluded that there was no basis for it to exercise its review powers under Article 53(3)(b) (Situation in the DRC, ICC PT. Ch. I, Decision on the request of the legal representative of victims VPRS 3 and VPRS 6 to review an alleged decision of the Prosecutor not to proceed, ICC-01/04-582, 25 October 2010, p. 4).

Cross-references:
1. Rules 107, 108, 109 and 110
2. Regulation 38

Author: Karel De Meester

Updated: 30 June 2016

Article 53(4)

[432] 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.
Pursuant to final subparagraph Article 53(4), the Prosecutor possesses the discretionary power to review a decision not to proceed. The consequence of this provision is that, based on ‘new facts or information’, a referral may ‘at any time’ be reactivated. For that purpose, the Prosecutor will first re-activate the preliminary examination. For example, the ICC Prosecutor has re-opened the preliminary examination in the situation in Iraq on the basis of new information. This entails that the Prosecutor will reconsider, in light of the new information, whether the criteria under Article 53(1) ICC Statute for initiating an investigation are met (OTP Press Release: Prosecutor of the International Criminal Court, Fatou Bensouda, re-opens the preliminary examination of the situation in Iraq, 13 May 2014).

Cross-references:
Rule 92

Doctrine

Morten Bergsmo/Pieter Kruger, "Article 53", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1068-1076.
Karel De Meester et al., "Investigation, Coercive Measures, Arrest and Surrender", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 171-380, 182.
Margaret M. deGuzman, "Gravity and the Legitimacy of the International Criminal Court", Fordham International Law Journal, vol. 32, 2009, pp. 1403, 1432.
Silvia A. Fernández de Gurmendi, "The Role of the International Prosecutor", in Roy S. Lee, (Ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999, p. 182.
Geert-Jan Alexander Knoops, "Challenging the Legitimacy of Initiating Contemporary International Criminal Proceedings: Rethinking Prosecutorial Discretionary Powers from a Legal, Ethical and Political Perspective", Criminal Law Forum, vol. 15, 2005, p. 377.
Héctor Olásolo, "The Prosecutor of the ICC before the Initiation of Investigations: a Quasi-Judicial or Political Body?", International Criminal Law Review, vol. 3, 2003, p. 132.
Florian Razesberger , The International Criminal Court: The Principle of Complementarity, Peter Lang, Frankfurt am Main, 2006, p. 108.
Christopher Safferling, International Criminal Procedure, Oxford University Press, Oxford, 2012, p. 94.
William A. Schabas, An Introduction to the International Criminal Court, Third Edition, Cambridge University Press, Cambridge, 2007, p. 245.
Carsten Stahn, "Judicial Review of Prosecutorial Discretion: Five Years on", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Koninklijke Brill, Leiden, 2009, pp. 247-279; 249, 257.
Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Duncker & Humblot GmbH, Berlin, 2011, pp. 119-120; 253, 332, 419.
Ignaz Stegmiller, "The Pre-Investigation Stage of the ICTY and the ICC Compared", in Thomas Kreussmann (Ed.), ICTY: Towards a Fair Trial?, Neuer Wissenschaftlicher Verlag, Wien - Graz, 2008, pp. 311-340.
Giuliano Turone, "Powers and Duties of the Prosecutor", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1137-1180; 1158, 1173.
Manuel J. Ventura, "The ‘Reasonable Basis to Proceed’ Threshold in the Kenya and Côte d’Ivoire Proprio Motu Investigation Decisions: The International Criminal Court’s Lowest Evidentiary Standard?", The Law and Practice of International Courts and Tribunals, vol. 12, 2013, p. 67.
Philippa Webb, "The ICC Prosecutor’s Discretion not to Proceed in the 'Interests of Justice'”, Criminal Law Quarterly, vol. 50, 2005, p. 327.
Jan Wouters et al., "The International Criminal Court’s Office of the Prosecutor: Navigating between Independence and Accountability?", International Criminal Law Review, vol. 8, 2008, pp. 297, 302.

Author: Karel De Meester

Updated: 30 June 2016

Article 54

[433] Duties and powers of the Prosecutor with respect to investigations
General Remarks
Article 54 is the general provision detailing the duties and powers of the Prosecutor in the conduct of investigations. These duties and powers are relevant to the investigation ‘proper’, which follows the preliminary examination and the initiation of the investigation under Article 53(1) ICC Statute. The duties incumbent on the Prosecutor are outlined in the first paragraph of Article 54 (‘The Prosecutor shall’), whereas the powers are outlined in paragraphs 2 and 3 (‘The Prosecutor may’).

Author: Karel De Meester

Updated: 30 June 2016

Article 54(1)(a)

[434] 1. The Prosecutor shall:
(a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally;
The first subparagraph of Article 54 posits the central objective of the Prosecutor’s investigative efforts, namely ‘to establish the truth’. Therefore, and notwithstanding the more adversarial design of proceedings before the Court, the Prosecutor should not solely collect evidence with the aim of securing a conviction. Moreover, it follows from the first subparagraph of Article 54(1) that all investigative activities should be directed towards the identification of evidence that can eventually be presented in open court (Prosecutor v. Lubanga Dyilo, ICC A. Ch., ICC-01/04-01/06-1486 (OA 13), 21 October 2008, para. 41).
   In placing an obligation on the Prosecutor to ‘investigate incriminating and exonerating circumstances equally’, the ICC Statute departs from how the Prosecutor’s role is conceived at the ad hoc tribunals. This principle of objectivity entails that the Prosecutor is expected to act as an ‘officer of justice’, rather than as a partisan actor. Although the jurisprudence of the ad hoc tribunals, the SCSL or the STL has also occasionally referred to the Prosecutor’s role in terms of an ‘organ of justice’, this falls short of an active duty incumbent on the Prosecutor to go out and gather exonerating evidence, over and above the disclosure obligations that pertain to (potentially) exonerating information and evidence in the Prosecution’s possession (compare Prosecutor v. Kupreškić et al., ICTY T. Ch. II, 21 September 1998, p. 3; Prosecutor v. Barayagwiza, ICTR A. Ch., Separate Opinion of Judge Shahabuddeen, paras. 67-68; Prosecutor v. Sesay, SCSL President, 20 February 2006, para. 30; (Case No. CH/PTJ/2009/06), STL PT. J., Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack against Prime Minister Rafiq Hariri and Others, 29 April 2009, para. 25). This principle of objectivity is typically associated with civil law criminal justice systems. It was included in the Statute “to build a bridge between the adversarial common law approach to the role of the Prosecutor and the role of the Investigating Judge in certain civil law systems” (Bergsmo and Kruger, 2008, p. 1078). It has also been incorporated in Article 49 (b) and (c) of the Code of Conduct for the Office of the Prosecutor.
   The Prosecution has understood its duty to investigate into potentially exonerating information and evidence to be a ‘continuous’ and ‘simultaneous’ process. Therefore, the search for such information or evidence is not the task of a separate investigative team. In the event that the Prosecutor encounters potentially exonerating information by questioning witnesses, the Prosecution will actively pursue such leads and try to identify new witnesses and evidence (Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, 01/04-01/07-T-81, 25 November 2009, pp. 16-17, 34). The principle of objectivity may not always be easy to reconcile with the more adversarial nature of proceedings before the Court. A certain tension exists between the role of the Prosecutor in pursuing criminal conduct on the one hand, and to act as an officer of justice on the other hand. The difficulties for the Prosecutor to effectively realise a non-partisan attitude in the conduct of the investigation came to the front in a number of cases before the Court. In Mbarushimana, for example, the Prosecution was reprimanded by Pre-Trial Chamber II, which found the confrontational questioning methods used by some investigators to be inappropriate in light of their duty of objectivity and held that such techniques may significantly weaken the probative value of evidence so obtained (Prosecutor v. Mbarushimana, ICC PT. Ch. II, Decision on the confirmation of charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 51). More precisely, the Pre-Trial Chamber held that: “[t]he reader of the transcripts of interviews [of insider witnesses] is repeatedly left with the impression that the investigator is so attached to his or her theory or assumption that he or she does not refrain from putting questions in leading terms and from showing resentment, impatience or disappointment whenever the witness replies in terms which are not entirely in line with his or her expectations. Suggesting that the witness may not be “really remembering exactly what was said”, complaining about having “to milk out” from the witness details which are of relevance to the investigation, lamenting that the witness does not “really understand what is important” to the investigators in the case, or hinting at the fact that the witness may be “trying to cover” for the suspect, seem hardly reconcilable with a professional and impartial technique of witness questioning” (ibid., para. 51). Reference may also be made to the reliance, in the Prosecutor’s investigation into the situation in the DRC, on an intermediary who previously worked for the Congolese intelligence services and who was assisted by at least one other person who, at the time being, was employed by the Congolese intelligence services. The intermediary (‘P-0316’) testified that he had always remained loyal to his government (Prosecutor v. Lubanga, ICC T. Ch. I, ICC-01/04-01/06-2842, 14 March 2012, para. 367). The Trial Chamber raised its concern “that the prosecution used an individual as an intermediary with such close ties to the government that had originally referred the situation in the DRC to the Court” (ibid., para. 368).
   Another feature often associated with a Prosecutor bound by a principle of objectivity, to know the possibility for the Defence to request the Prosecutor to conduct certain investigative actions, is not provided for under the ICC Statute. However, it seems that the Prosecution is willing to entertain such requests (Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, 01/04-01/07-T-81, 25 November 2009, p. 72).
   In the Lubanga case, the Appeals Chamber clarified that the obligation ‘to establish the truth’ is not limited to the period of time prior to the confirmation of charges (Prosecutor v. Lubanga, ICC A. Ch., ICC-01/04-01/06-568 (OA 3), 13 October 2006, para. 52). In Kenyatta, Trial Chamber V interpreted (Judge Chile Eboe-Osuji dissenting on this point) the prosecutorial duties to ‘establish the truth’ and to ‘extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’ under Article 54(1)(a) as imposing an obligation to properly investigate the case against the accused prior to confirmation. These obligations entail that “[t]he Prosecutor is not responsible for establishing the truth only at the trial stage by presenting a complete evidentiary record, but is also expected to present a reliable version of events at the confirmation hearing”. Therefore, “[t]he Prosecutor should not seek to have the charges against a suspect confirmed before having conducted a full and thorough investigation in order to have a sufficient overview of the evidence available and the theory of the case” (Prosecutor v. Uhuru Muigai Kenyatta, ICC T. Ch. V, ICC-01/09-02/11-728, 26 April 2013, para. 119). In casu, the Trial Chamber was concerned about “the considerable volume of evidence collected by the Prosecution post-confirmation” (ibid., para. 118). According to the Trial Chamber, the possibility to continue investigations post-confirmation “is not an unlimited prerogative” (ibid., para. 119). This is in line with the holding of the Appeals Chamber in the Mbarushimana case that the Prosecutor should largely have completed the investigations prior to the confirmation hearing (Prosecutor v. Mbarushimana, ICC A. Ch., ICC-01/04-01/10-514 (OA 4), 30 May 2012, para. 44; consider also Prosecutor v. Lubanga, ICC A. Ch., ICC-01/04-01/06-568 (OA 3), 13 October 2006, para. 54: “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing”). While this does not prohibit the Prosecutor from conducting investigations post-confirmation in exceptional circumstances, for example when it concerns evidence the Prosecutor could not have obtained prior to confirmation “with reasonable diligence”, the Prosecution should not continue with gathering evidence it could reasonably have been expected to have collected prior to confirmation (Prosecutor v. Uhuru Muigai Kenyatta, ICC T. Ch. V, ICC-01/09-02/11-728, 26 April 2013, para. 121). Moreover, post confirmation hearing investigations should be finished as soon as possible (Prosecutor v. Abakaer Nourain and Jerbo Jamus, ICC T. Ch. IV, ICC-02/05-03/09-158, 6 June 2011, para. 13).
   The underlying problem is the silence of the ICC Statute on the temporal limitation of the investigation phase. There is no requirement in the Statute for the Prosecutor to have all investigations concluded before the confirmation of charges. The risks inherent in allowing the Prosecutor to continue with investigations post-confirmation were explained by Judge Kaul in his dissenting opinion to the Decision on the Confirmation of Charges in Muthaura, Muigai Kenyatta and Hussein Ali. He referred to “the possibility, if not the risk, that [the] limited permission of post-confirmation investigations in practice might be too broadly interpreted by the Prosecutor, possibly as some kind of license to investigate whenever, even after confirmation, thus enabling the Prosecutor also to allow a phased approach for the gathering of evidence” (Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC, PT. Ch. II, ICC-01/09-02/11-382-Red, 23 January 2012, Dissenting Opinion by Judge Hans-Peter Kaul, para. 56; Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC PT. Ch. II, ICC-01/09-01/11-373, 23 January 2012, Dissenting Opinion by Judge Hans-Peter Kaul, para. 51).

Author: Karel De Meester

Updated: 30 June 2016

Article 54(1)(b)

[435] (b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in Article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and
Subparagraph (b) of the first paragraph provides the Prosecutor with the authority to determine the measures he or she considers ‘appropriate’. Clearly, this provision is to be read together with the Prosecutor’s obligation ‘to establish the truth’ which is found under subparagraph (a) (Bergsmo and Kruger, 2008, p. 1078). Unlike subparagraph (a), subparagraph (b) concerns both the ‘investigation’ and the ‘prosecution’. The second part of the sentence expressly charges the Prosecutor with respecting the interests and personal circumstances of victims and witnesses. Several of such personal circumstances are included, such as age, gender, and the nature of the crime. Reference is also made to sexual violence, gender violence and violence against children. Article 54(1)(b) is not to be interpreted as to require the prior consent of a parent or guardian for the testimony of a child (Prosecutor v. Katanga and Ngudjolo Chui, ICC PT. Ch. I, ICC-01/04-01/07-717, 30 September 2008, paras. 144 - 148).
The Prosecution’s understanding of its obligation to ensure ‘effective investigation and prosecution’ under Article 54(1)(b) is further detailed in Article 51 of the Prosecutor’s Code of Conduct.

Author: Karel De Meester

Updated: 30 June 2016

[444] (f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.
The final subparagraph of Article 54(3) sets forth the prosecutorial power to ‘[t]ake necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence’. The latter part of this sentence reflects the need to preserve evidence, which is also found in Rule 10 ICC RPE. This Rule details the Prosecutor’s responsibility for the retention, storage and security of information or evidence obtained in the course of investigations by his or her Office. The need to preserve evidence is also reflected by several other provisions of the ICC Statute, including Article 56 (on ‘unique investigative opportunities’ to gather evidence), Article 18(6) (on the possibility for the Prosecutor to request the Pre-Trial Chamber ‘on an exceptional basis’ to authorise it to take investigative steps when the Prosecutor has deferred an investigation or pending a preliminary ruling on admissibility), or Article 19(8) (on the necessity to preserve evidence pending a ruling on admissibility or on jurisdiction).
The power to take measures ‘to ensure the confidentiality of information’ is the corollary of the Prosecutor’s power to conclude confidentiality agreements pursuant to Article 54(3)(e) and ensures its efficacy. From Rule 81(3) ICC RPE, which deals with disclosure, it follows that in case steps to ensure the confidentiality of information have been taken pursuant to Article 54, this information will not be disclosed, except in accordance with Article 54. Moreover, according to the first part of Rule 81(4) the Chamber should, proprio motu or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with Article 54. Finally, as far as measures for the ‘the protection of any person’ are concerned, it is clear from the wording (‘any person’) that it aims at protecting “anyone put at risk by the investigations of the Prosecutor” (Prosecutor v. Katanga, ICC A. Ch., ICC-01/04-01/07-475, A. Ch., 13 May 2008, para. 44). In turn, this provision is complemented by the second part of the aforementioned Rule 81(4) ICC RPE, which authorises the Pre-Trial Chamber to restrict disclosure and take the necessary steps to protect the safety of witnesses and victims and members of their families. While this provision seems more restrictive than Article 54(3)(f), the Appeals Chamber held (Judge Pikis dissenting) that Rule 81(4) ICC PRE should, when read together with Article 54(3)(f), be understood as to also allow restrictions on disclosure for the protection of “other persons at risk on account of the activities of the Court” (ibid., paras. 55 – 56). Furthermore, the Appeals Chamber held (Judge Pikis and Judge Nsereko dissenting), that no prosecutorial power to preventively relocate witnesses can be deduced from Article 54(3)(f) ICC Statute in isolation. Rather should this provision be read in light of the Statute as a whole, which assigns the responsibility to provide protective measures to victims and witnesses specifically to the Victims and Witnesses United within the Registry (Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., ICC-01/04-01/07-776 (OA7), 26 November 2008, paras. 69 – 80). The Appeals Chamber added, obiter dictum, that it interprets Article 54(3)(f) (and Article 68(1)) as to ensure “that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to victims and witnesses”. These measures may include “meeting witnesses in discrete locations rather than in public and keeping their identities confidential” (ibid., para. 98).

Doctrine:

Morten Bergsmo/Pieter Kruger, "Article 54", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1077-1087.
Guariglia, Fabricio et al., "Article 57", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1128-1129.
Göran Sluiter, International Criminal Adjudication and the Collection of Evidence, Intersentia, Antwerp, 2002, p. 309.

Author: Karel De Meester

Updated: 30 June 2016

Article 55

[445] Rights of persons during an investigation
General remarks
Article 55 complements Article 67(1) on rights of the accused during the trial by already guaranteeing certain rights during investigation. While all rights contained in Article 67(1) apply only to accused, Article 55 is not limited to those suspected of having committed crimes, but also includes, in its paragraph (1), some rights granted to all persons during an investigation, i.e., particularly also to victims and witnesses [on rights of witnesses and suspects not expressly recognized in Article 55, see Hall, 1999, p. 734; Hall, 2008, pp. 1104-1105; and Zappalà, 2002, p. 1196].
   Article 55 binds not only organs of the Court, but also state authorities conducting investigative steps under their obligation to cooperate with the court – this is explicitly stated in the chapeau of paragraph (2), but must also be true for the rights under paragraph (1) if this provision is to be effective in deterring violations [Hall, 1999, p. 729; and Hall, 2008, p. 1093]. Additional procedural rules concerning questioning of suspects and others are contained in rules 111–113 of the Rules of Procedure and Evidence (RPE).
   As an example of the ICC practice, regarding the initial Darfur investigation, Pre-Trial Chamber III referred to individuals being interviewed in Khartoum under Article 55 of the ICC Statute. The initial cooperation received from the Government of Sudan was interrupted after arrest warrants were issued against President Al Bashir [Prosecutor v. Al Bashir, ICC PT. Ch. II, Prosecution’s request for a finding of non-compliance against the Republic of the Sudan in the case of The Prosecutor v Omar Hassan Ahmad AL BASHIR pursuant to Article 87 (7) of the Rome Statute, ICC-02/05-01/09-219, 19 December 2014, para. 23].
   In Blé Goudé, the defence did not argue that alleged violations were a violation of the rights of the suspect under Article 55 or a breach of other rights which may be attributed to the ICC. Accordingly, it was determined that “absent any involvement of the Court, chambers cannot proceed to make determinations of violations of the rights of a suspect while detained on the territory of a State and, therefore, such violations may not be invoked in order to halt proceedings before this Court” [Prosecutor v. Blé Goudé, ICC PT. Ch. I, Decision on Second Defence Request for State Party Cooperation, ICC-02/11-02/11-85, 17 June 2014, para. 12]. Not every violation of Article 55 would per se cause that the ICC be required to decline to exercise its jurisdiction but only “violations that would amount, by themselves or in combination with other circumstances, to an abuse of process” [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the "Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 an d 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC- 02/11-01/11-129)", ICC-02/11-01/11-212, 15 August 2012, para. 93]. If the alleged infringement is not a mere breach of Article 55 but is in itself extremely significant, it may warrant a permanent stay of proceedings [ibid., paras. 93-94].
   The ICC’s practice has mainly so far indicated the reluctance of the ICC to act as a supervisor of national legislation and practice, which involves not only human rights of the defendant but also the principle of complementarity [see Sluiter, 2009, p. 474]. Paying attention to some alleged flawed interpretation and application of two provisions fundamental for the protection of human rights in the pre-trial phase, namely, Articles 21(3) and 59 of the ICC Statute, it has been suggested that the ICC should “strengthen its grip on national activities which are an indispensable and inextricable part of the ICC proceedings” [ibid., p. 475].

Preparatory works:
The text proposed by the Working Group at the 1993 session of the International Law Commission, which contained a single paragraph on the suspect’s rights, was adopted in the Commission’s final version in 1994. In the Preparatory Committee, the most important issues were related to expansion of the guarantees proposed by the International Law Commission. In turn, during the Rome Conference, the provisions concerning the suspect’s rights became a single Article as they were separated from the omnibus provision on investigation and the text was substantially reworked. A Working Paper, which was distributed during the first week of the Rome Conference, changed the title of the provision. This provision contained two paragraphs each with several subparagraphs and, thus, resembled the final text of Article 55-excepted the inversed order of the two paragraphs. The final text adopted by the Working Group and then the Committee of the Whole was substantially reworked by the Drafting Committee that changed both the title and the order of the main paragraphs [see Schabas, 2010, pp. 684-685].

Cross-references:
Article 67(1), Rules 111–113

Author: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 55(1)

[446] 1. In respect of an investigation under this Statute, a person:
(a) 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 form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any 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.
Article 55(1) contains certain rights granted to all persons during an investigation. As stated above, it binds not only organs of the Court, but also state authorities cooperating with the court. This safeguards procedural uniformity and should be broadly interpreted to include interviewers of peacekeeping operations and international organizations [see Karel de Meester et al., 2013, p. 23; and Hall, 2008, p. 1097]. Thus, the RPE and the case-law suggest that the rights of all persons should be respected independently from who is conducting the investigation. Accordingly, Rule 111(2) of the RPE requires that “[w]hen the Prosecutor or national authorities question a person, due regard shall be given to Article 55.” In turn, in Lubanga, the Trial Chamber determined that a witness’s right to privacy is an internationally recognized human right applicable to investigations undertaken by national authorities [Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 29 January 2007, paras. 62-90. See also Alamuddin, 2010, pp. 235-236].
   With regard to the scope of application of Article 55(1), Pre-Trial Chamber I interpreted the expression applicable “[i]n respect of an investigation under this Statute” as encompassing “any investigative steps that are taken either by the Prosecutor or by national authorities at his or her behest” and, thus, an investigation conducted by an entity other than the Prosecutor and not related to the proceedings at the ICC “does not trigger the rights under Article 55 of the Statute” [Prosecutor v. Gbagbo, ICC PT. Ch. I, Decision on the "Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 an d 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC- 02/11-01/11-129)", ICC-02/11-01/11-212, 15 August 2012, para. 96]. In Gbagbo, it was stated that Article 55(1) was inapplicable as violations thereof were committed neither by the Prosecutor nor by the Ivorian authorities on behalf of the Prosecutor or any ICC organ. There was no relevant evidence indicating that the adoption of measures by the Ivorian authorities was on behalf of the ICC Prosecutor and, thus, the defence allegations were found to be purely speculative in nature [ibid., paras. 97-98].
   There is no express provision that persons have to be informed of their rights under Article 55(1), such information is, however, probably required in the interest of fairness [see Hall, 1999, p. 729; and Hall, 2008, p. 1093]. Indeed, in practice, non-suspects are routinely informed of their rights by the ICC investigators [ICC Office of the Prosecutor (OTP) Regulations, regulation 40; Prosecutor v. Katanga and Ngudjolo Chui, ICC OTP, Prosecution's Observations regarding Admission for the Confirmation Hearing of the Transcripts of Interview of Deceased Witness 12 pursuant to Articles 61 and 69 of the Statute, ICC-01/04-01/07-336, 20 March 2008, para. 21. See also Alamuddin, 2010, p. 234]. Additional procedural rules concerning questionings are contained in rules 111–113.
   Article 55(1)(a) contains the right against self-incrimination, based on Article 14(3)(g) of the ICCPR. Contrary to the equivalent right to silence of suspects (Article Article 55(1)(b)) and accused (Article 67(1)(g)), Article 55(1) does not contain a right to silence, showing that, e.g., witnesses may not generally refuse to answer questions if the answer is not (potentially) self-incriminating. When evaluating whether the right against self-incrimination was violated, the European Court of Human Rights (ECtHR) has considered the following factors: i) nature and degree of coercion employed to obtain the evidence; ii) the weight of the public interest in the specific investigation and punishment of the crime; iii) the existence of any relevant procedural safeguards; and iv) the use given to any material so obtained [Jalloh v. Germany, (Application No. 548100/00), Judgment, 11 July 2007, para. 105. See also Schabas, 2010, pp. 686-687].
   Article 55(1)(b) contains the prohibition of torture and other forms of coercive treatment. The prohibition of “duress” particularly may not be unlimited – forcing a witness to testify before the court or before national authorities may well put that person in duress, especially if he or she fears repercussions from supporters of the accused, nonetheless it is hard to imagine that the court would find such an obligation to be in violation of Article 55 [cf. Hall, 1999, pp. 729-730; and Hall, 2008, p. 1094]. The main aim of this provision is seemingly to protect individuals during an investigation conducted by state authorities who assist the ICC Prosecutor’s investigation [see Hall, 1999, p. 730; and Hall, 2008, p. 1094].
    Paragraph (1)(c) of Article 55 contains the right to translation and interpretation. The wording of this provision, including the manners in which it goes beyond human rights provisions, is largely identical to Article 67(1)(f) and for details see commentary thereto. At this point, it is however mentioned that the Appeals Chamber considered that the word “fully” refers to the intent to “raise the standard of understanding to higher than plain understanding”, which consists in a level higher “than simply a language the accused understands or speaks” [Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled “Decision on the Defence Request Concerning Languages”, ICC-01/04-01/07-522, 27 May 2008, paras. 56 and 57]. Thus, translation into a person’s native language is not required as far as he/she fully understands the language being employed [see Hall, 2008, p. 1095].
   Finally, paragraph (1)(d) sets limits to acceptable deprivations of liberty in connection with Court proceedings. It largely mirrors the language of Article 9(1) of the ICCPR. The fact that it not only refers to arrest or detention, but also to deprivation of liberty generally, shows that also limited restrictions on freedom of movement, such as, e.g., house arrest or the duty to attend court proceedings, must be in conformity with the Statute [for a criticism of the unclear wording “on such grounds and in accordance with such procedures”, see Zappalà, 2002, pp. 1197–1198]. The prohibition in the first part of this paragraph is independent of the one contained in the second part and this paragraph should be jointly read with Article 85(1) which reads as follows: “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation” [see also Hall, 2008, p. 1096]. Thus, there “should be some mechanism of redress in case of violations”. [Zappalà, 2010, p. 140]. In Bemba, the Appeals Chamber recalled that every person “has the right to effectively contest the deprivation of liberty” [Prosecutor v. Bemba, A. Ch., Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”, ICC-01/05-01/08-323, 16 December 2008, para. 31].

Cross-references:
Articles 67(1) and 85(1), Rule 111, OTP Regulation 40

Author: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 55(2)

[447] 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed 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 Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 55(2) contains certain rights granted to suspects, i.e., persons of whom “there are grounds to believe that [they have] committed a crime within the jurisdiction of the Court”, being questioned by the prosecution or by national authorities cooperating with the Court [the term suspect is not used in the Statute, see Zappalà, 2002, pp. 1195–1196 and 1200]. The provision in principle applies to those suspected of having committed crimes referenced in Article 5, rather than offences under Article 70, as shown by the reference to a “crime” as well as to state cooperation under part 9 of the Statute [cf. Article 70(2) on cooperation in proceedings concerning Article 70-offences]. However, it is foreseeable that the court will find that most or all of these rights also apply to Article 70-suspects under general international law. Indeed, as seen below, e.g., the ICC found that the right to legal aid (Article 55(1)(c)) applies to both crimes and offences [Prosecutor v. Bemba et al., ICC T. Ch. VII, Decision on the Defence applications for judicial review of the decision of the Registrar on the allocation of resources during the trial phase, ICC-01/05-01/13-955, 21 May 2015, para. 35].
   The application of Article 55(2) constitutes the most remarkable distinction between the suspect and a witness as it provides the former with certain specific rights such as the right to be informed of being a suspect, the right to remain silent, the right to have legal assistance and be questioned in presence of his/her counsel [see De Meester et al., 2013, p. 233].
   With regard to the steps adopted by the ICC organs to put Article 55(2) into practice, Ntaganda may be mentioned as an example. As part of the investigation, the ICC Prosecution met persons who had rights under Article 55(2) which include the right to have the interviews audio and/or video recorded. Then, the Prosecutor prepared transcripts of these interviews, which were time-intensive and generally ran on average up to 10-15 hours each. Even though the disclosure obligation solely concerns the original form of the interview (the audio-video recording), the Prosecutor prepared and disclosed the interview transcript as an assistance mechanism to review the material [Prosecutor v. Ntaganda, ICC PT Ch. II, Prosecution’s Urgent Request to Postpone the Date of the Confirmation Hearing, ICC-01/04-02/06-65, 23 May 2013, para. 18].
   Those individuals who are subject to a warrant of arrest or a summons to appear, not yet surrendered to the ICC, “enjoy rights guaranteed elsewhere in the Statute, such as the rights relating to investigations (Article 55(2))” [Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Defence Request for an Order to Preserve the Impartiality of the Proceedings, ICC-01/04-01/10-51, 31 January 2011, para. 8, footnote 15].
   Paragraph (2)(a) grants the person the right to be informed prior to questioning of his or her status as a suspect. Such information is necessary in order to allow the person to adequately exercise the other rights under Article 55(2) which attach to this status. The “grounds to believe” is an objective test which facilitates its enforcement [see Schabas, 2010, p. 688]. Under regulation 41(2) of the Regulations of the OTP, should information conveyed during the interview of a witness raise grounds to believe that the witness in question has committed a crime(s) within the ICC jurisdiction, he/she shall immediately be informed of his/her rights under Article 55(2). In the ICC Prosecutor’s practice, “screening interviews” precede interviews and aim inter alia to establish whether the interviewee is a suspect [Prosecutor v. Katanga and Ngudjolo Chui, ICC T. Ch. II, Transcripts, ICC-01/04-01/07-T-81, 25 November 2009, p. 11. See also De Meester et al., 2013, p. 233]. Concerning how a confirmation hearing in absentia may potentially affect Article 55(2)(a), former ICC Judge Ekaterina Trendafilova has considered it as not conflicting with the “right to be properly informed of the charge”, which “is made clear by a number of provisions” [Trendafilova, 2009, p. 456].
   Paragraphs (2)(b) and (2)(c), whose wording is materially identical to those of Article 67(1)(d) and (g), grant suspects the rights to silence and to legal assistance. For details, see commentary to Article 67(1)(d) and (g). At this point, however, some precisions are given. First, although paragraph (2)(b) contains no explicit requirement that the suspect or the accused should be warned that his/her statement may be used as evidence in trial, rules 74 and 75 of the RPE regulate the witness’s right not to incriminate himself or certain family members [see Hall, 2008, pp. 1098-1099]. Indeed, the OTP’s practice has consisted in a “policy of informing all persons questioned-including under Article 55(2)-that their evidence may be used in subsequent proceedings” [Prosecutor v. Katanga and Ngudjolo Chui, ICC OTP, Prosecution's Observations regarding Admission for the Confirmation Hearing of the Transcripts of Interview of Deceased Witness 12 pursuant to Articles 61 and 69 of the Statute, ICC-01/04-01/07-336, 20 March 2008, para. 21]. This approach has been later regulated under the Regulations of the OTP [regulation 40(f). See also Karel de Meester et al., 2013, p. 234]. Second, concerning paragraph (2)(c), the Registrar is required to provide assistance to persons to whom Article 55(2)(c) applies in obtaining legal counsel assistance and legal advice (rule 20(c)). Third, Trial Chamber VII found no distinction between the offences under Article 70 (offences against the administration of justice) and the crimes under Article 5 (genocide, crimes against humanity, war crimes and crime of aggression) concerning the entitlement to legal aid as Article 55(2)(c) “contemplates legal aid ‘[w]here there are grounds to believe that a person has committed a crime within the jurisdiction of the Court.’” [Prosecutor v. Bemba et al., ICC T. Ch. VII, Decision on the Defence applications for judicial review of the decision of the Registrar on the allocation of resources during the trial phase, ICC-01/05-01/13-955, 21 May 2015, para. 35].
   Paragraph (2)(d) complements paragraph (2)(c) by laying down that suspects must be questioned in the presence of counsel unless they have waived this right (while the exception refers to suspects having “waived their right to counsel”, it must probably also be read to cover suspects who have retained the assistance of counsel, but who consent to being questioned in the absence of said counsel). Contrary to the rules applicable to the ad hoc Tribunals, Article 55(2)(d) does not explicitly refer to cases where the suspect first waives the right to counsel and later withdraws this waiver; it would seem that the general rule contained in the provision also covers such cases and thus requires that questioning only continue in the presence of counsel following such withdrawal [Hall, 1999, p. 734; and Hall, 2008, p. 1103]. Under Article 55(2), questioning of a person must be audio or video recorded and the recording shall be transcribed and then given to the person concerned. According to the chapeau, suspects must be informed of these rights prior to being questioned. Rules 112 and 113 of the RPE contain additional procedural rules concerning questioning of suspects, including the possibility of a medical examination of the suspect [see, for further details, Hall, 2008, pp. 1103-1104].
   In Bemba, Pre-Trial Chamber III found that an interview for determining the suspect’s identity does not probably fall within the scope of Article 55(2)(d) as were Article 55(2)(d) be applicable, the claimed “unlawful absence of the counsel would only entail a potential exclusion pursuant to Article 69 (7) of the Statute of evidence obtained in the interview” [Prosecutor v. Bemba, ICC PT. Ch. III, Decision concerning the public version of the “Decision on application for interim Release” of 20 August 2008, ICC-01/05-01/08-80, 26 August 2008, para. 45]. The Appeals Chamber in Banda and Jerbo determined that the ICC Prosecutor cannot be requested, under Rule 112 (recording of questioning in particular cases), to produce organized and signed statements of a witness’s interview. In accordance with Article 55(2), Rule 112 provides for that interviews of persons about whom the ICC Prosecutor has ground to believe committed a crime within the ICC jurisdiction shall be audio or video recorded [Prosecutor v. Banda and Jerbo, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled “Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation", ICC-02/05-03/09-295, 17 February 2012, paras. 26-28].

Cross-references:
Article 67(1) and 70; Rules 21, 22, 112 and 113; Regulation 73; OTP Regulation 41(2)

Doctrine:

Amal Alamuddin, "Collection of Evidence", in Karim Khan et al. (Eds.), Principles of Evidence in International Criminal Justice, Oxford University Press, Oxford, 2010, pp. 231-305.
Christopher K. Hall, "Article 55 – Rights of Persons During an Investigation", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, C.H. Nomos, Baden Baden, 1999, pp. 722-734.
Christopher K. Hall, "Article 55 – Rights of Persons During an Investigation", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden Baden, 2008, pp. 1089-1105.
Karel de Meester et al., "Investigation, Coercive Measures, Arrest and Surrender", Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 177-380.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
Göran Sluiter, "Human Rights Protection in the ICC Pre-trial Phase", in Carsten Stan/ Göran Sluiter et al. (Eds.), The Emerging Practice of the International Criminal Court, Brill/Martinus Nijhoff, Leiden, 2009, pp. 459-475.
Ekaterina Trendafilova, "Fairness and Expeditiousness in the International Criminal Court’s Pre-trial Proceedings", in Carsten Stan/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Brill/Martinus Nijhoff, Leiden, 2009, pp. 441-457.
Salvatore Zappalà, "The Rights of Persons During an Investigation", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1181-1203.
Salvatore Zappalà, "The Rights of the Accused", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1319-1354.
Salvatore Zappalà, "The Rights of Victims v. the Rights of the Accused", Journal of International Criminal Justice, vol. 8, no. 1, 2010, pp. 137-164.

Author: Juan Pablo Pérez-León-Acevedo and Björn Elberling

Updated: 30 June 2016

Article 56

[448] Role of the Pre-Trial Chamber in relation to a unique investigative opportunity
General Remarks
Article 56 represents an exception from the general rule that evidence must be presented at trial. This provision allows collection of evidence under the oversight of the Pre-Trial Chamber which later is made available at trial. The rationale is that some evidence cannot be fully reproduced at trial, for example mass-grave exhumation.
The purpose of the provision is to counter potential prejudice to the accused that may result from the particular nature of ICC proceedings. An accused may have difficulties to collect evidence in the country where the alleged crimes where committed when detained by the Court. Article 56 allows judicial intervention at the investigative stage.

Author: Mark Klamberg

Updated: 30 June 2016

[453] 3. (a) Where the Prosecutor has not sought measures pursuant to this Article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor's failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative.

(b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.
In case the Prosecution has failed to request measures under Article 56, the Pre-Trial Chamber is empowered to take such measureres on its own intitiative or at the request of the defence (pursuant to Article 57(3)(b).
Pre-Trial Chamber II suggests that pursuant to Article 56(3)(a) and Article 57(3)(c), "the Chamber may even preserve evidence in favour of the defence" (Kony et al., Decision on Prosecutor's applications for leave to appeal dated 15th day of March 2006 and to suspend or stay consideration of leave to appeal dated the 11th day of May 2006, ICC-02/04-01/05-90, 10 July 2006, para. 35. This is a measures that goes beyond "take measures to preserve evidence". Guarglia and Hocmayr argue that Article 56(3), on its face, does not empower the Chamber to take evidence itself.
Regulation 48 provides that the Pre-Trial Chamber may request the Prosecutor to provide specific or additional information or documents in his or her possession, or summaries thereof, that the Pre-Trial Chamber considers necessary in order to exercise the functions and responsibilities set forth in Article 56(3)(a).

Cross-references:
Regulation 48

Author: Mark Klamberg

Updated: 30 June 2016

Article 56(4)

[454] 4. The admissibility of evidence preserved or collected for trial pursuant to this Article, or the record thereof, shall be governed at trial by Article 69, and given such weight as determined by the Trial Chamber.
The use of Article 56 neither afford any weight to evidence or guarantee admissibility of the evidence. This is left for the determination of the Trial Chamber.

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 690-694.
Fabricio Guarglia/Gudrun Hochmayr, "Article 56 - Role of the Pre-Trial Chamber in Relation to a Unqiue Investigative Opportunity", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008.

Article 57(3)(c)

[460] (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information;
Paragraph (c) empowers the Pre-Trial Chamber to enforce a number of other provisions in the Rome Statute and the Rules of Procedure and Evidence, including the protection and privacy of victims and witnesses (Article 68), the preservation of evidence (Article 18(6), the protection of persons who have been arrested or appeared in response to a summons (Rules 117-120), protection of national security information (Article 72). There are a number of decisions where Article 57(3)(c) have been invoked.
   In Prosecutor v. Kony et al., Decision on "Request to access documents and material", and to hold a hearing in camera and ex parte, ICC-02/04-01/05-152, 7 February 2007, PTC II, inter alia, rejected the OPCV's request to have access to the index of the record of the situation and of the case. In Prosecutor v. Kony et al., Decision to convene a status conference on matters related to safety and security in Uganda, ICC-02/04-01/05-64, 25 November 2005, PTC II decided to to hold a status conference by way of a hearing in closed session. In Prosecutor v. Lubanga, Decision Concerning the Reclassification of the Redacted Versions of Documents ICC-01/04-01/06-32-US-Exp and ICC-01/04-01/06-32-Conf-AnxC as Public, ICC-01/04-01/06-80, 19 April 2006, PTC I decided to reclassify certain documents as public.
    In Prosecutor v. Lubanga, Decision on the Defence Request for Unrestricted Access to the Entire File of the Situation in the Democratic Republic of the Congo, ICC-01/04-01/06-103, 17 May 2006, PTC I rejected the Defence Request unrestricted access to the entire file of the situation in the Democratic Republic of the Congo.
    In Prosecutor v. Lubanga, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, 24 February 2006, PTC I decided, inter alia, that Mr. Thomas Lubanga Dyilo shall have access to redacted index of the record and to any public document contained therein.
    In the Democratic Republic of the Congo, Decision on the Requests of the OPCV, ICC-01/04-418, 10 December 2007, the OPCV requested "(i) access to the index of the Situation record, which lists the confidential, ex parte, and under seal documents in the Situation record; (ii) the right to thereafter request any documents which the Principal Counsel believes are necessary for the fulfilment of her mandate, and (iii) two confidential documents filed in the record of the Situation in the DRC". The Single Judge rejected the request in its entirety.

Cross-reference:
<link typo3 cmn-knowledge-hub klamberg-commentary regulations-of-the-court>Regulation 48

Author: Mark Klamberg

Updated: 30 June 2016

Article 57(3)(d)

[461] (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9.
Pursuant to paragraph (d) the prosecutor may through a request trigger the power of the Pre-Trial Chamber to authorize the prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State. This enables investigations when dealing with a “failed State” and includes on-site investigations. The requirement on prior consultation and restrictions to non-coercive measures set in Article 99(4) does not apply to investigations authorized by the Pre-Trial Chamber.

Cross-references:
1. <link typo3 cmn-knowledge-hub klamberg-commentary rules-of-procedure-and-evidence>Rule 115
2. <link typo3 cmn-knowledge-hub klamberg-commentary regulations-of-the-court>Regulation 38

Author: Mark Klamberg

Updated: 30 June 2016

Article 57(3)(e)

[462] (e) Where a warrant of arrest or a summons has been issued under Article 58, and having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to Article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.
The purpose of this provision is to ensure the right of reparations of the victims (Article 75) and the applicability of forfeiture (Article 77(2)(b)). States Parties have an obligation under Article 93(1)(k) to comply with requests by the Court to provide assistance in relation the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture.

Cross-references:
<link typo3 cmn-knowledge-hub klamberg-commentary rules-of-procedure-and-evidence>Rule 99

Doctrine:

Håkan Friman, in Roy S. Lee, (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 509-512.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 695-701.
Fabricio Guarglia/Kenneth Harris/Gudrun Hochmayr, "Article 57 - Functions and powers of the Pre-Trial Chamber", in Otto Triffterer, (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1117-1131.
Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 208, 254.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58

[463] Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
General Remarks
Article 58 concerns warrant of arrest or a summons to appear vis-à-vis the suspect which corresponds to the "indictment" in common law jurisdictions. It applies to persons who are "suspected", but not yet "accused" to have committed a crime under the jurisdiction of the Court. The status of "accused" is reserved to the stage where the Pre-Trial Chamber has confirmed the charges. The provision does not apply to offences against the administration of justice under Article 70 or witnesses.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(1)

[464] 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:
The application of an arrest warrant occurs at the start of the investigation of a case. In Situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 44, the Pre-Trial Chamber stated that a "case" starts after the issuance of an arrest warrant or a summons to appear pursuant to Article 58 of the Statute.
If the requirements of paragraph 1 is fulfilled, the Pre-Trial Chamber is obliged to issue the warrant of arrest, there is no discretion.
Article 58 does not preclude the use of sealed arrest warrants in order to increase the chances of being able to arrest suspects. In Situation in Uganda, Decision to Hold a Hearing on the Request under Rule 176 made in the Prosecutor's Application for Warrants of Arrest Under Article 58, ICC-02/04-10, 9 June 2005, PTC II decided to hold a hearing regarding the Prosecutor's request for the transmission of warrants of arrest and requests for arrest and surrender, in closed session to be attended only by the Prosecutor and his representatives. In Prosecutor v. Kony et al., ICC PT. Ch. II, Decision on the Prosecutor's Urgent Application dated 26 September 2005, ICC-02/04-01/05-27, 27 September 2005, PTC II decided, inter alia, authorized the Prosecutor, on a confidential basis and in situations where the Prosecutor deems it necessary to disclose information relating to the warrant of arrest In Situation in Kenya, ICC PT. Ch. II, Decision on the "Application for Leave to Participate in the Proceedings before the Pre-Trial Chamber relating to the Prosecutor's Application under Article 58(7)", ICC-01/09-42, 11 February 2011, para. 23, the Pre-Trial Chamber found that since the proceedings under Article 58 of the Statute are to be conducted with the exclusive participation of the Prosecutor, the person named in the Prosecutor's application pursuant to Article 58 of the Statute is not entitled to submit observations in these proceedings. The application submitted by Mohammed Hussein Ali requesting leave to participate in the proceedings related to the Prosecutor's application under Article 58 was thus rejected.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(1)(a)

[465] (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and
The threshold "reasonable grounds" is the least demanding evidentiary requirement used in the Rome Statute.
    In Bemba, the Pre-Trial Chamber observed “that, under Article 21(3) of the Statute, the expression ‘reasonable grounds to believe’ must be interpreted in a manner consistent with internationally recognized human rights”. Thus, in interpreting and applying this concept, the Chamber was specifically guided by the “reasonable suspicion” standard under Article 5(1)(c) of the ECHR, which, as interpreted by the ECtHR, “requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence”. The Chamber was also guided by the jurisprudence of the Inter-American Court of Human Rights (“IACHR”) on the fundamental right to liberty, as enshrined in Article 7 of the American Convention on Human Rights, Prosecutor v. Jean-Pierre Bemba Gombo, ICC PT. Ch. III, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, 10 June 2008, para. 24.
   In al-Bashir the majority of the Pre-Trial Chamber declined to issue an arrest warrant in relation to the counts concerning genocide. The background to the case is that the alleged crimes were committed as part of a counter-insurgency campaign launched by the Government of Sudan (GoS). The majority of the Pre-Trial Chamber stated that the “reasonable grounds” standard would be met (and a warrant would be issued) if the evidence provided by the prosecutor “show[s] that the only reasonable conclusion to be drawn therefrom is the existence of reasonable grounds to believe in the existence” of the perpetrator’s dolus specialis/ specific intent to destroy in whole or in part the protected groups. Prosecutor v. Al Bashir, ICC PT. Ch. I, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para. 158. Considering that the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Pre-Trial Chamber rejected the prosecutor’s application in relation to genocide because the evidentiary standard provided for in Article 58 of the Statute was not met (paras. 153-159).
    To require the prosecutor to show that it is the only reasonable conclusion in order to have an arrest warrant issued would arguably be the wrong standard of proof to use because it amounts to the higher “beyond reasonable doubt” standard. The partly dissenting Judge Ušacka noted that “[t]he Statute proscribes progressively higher evidentiary thresholds which must be met at each stage of the proceedings” and that at the arrest warrant/summons stage the Pre-Trial Chamber need only be "satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court. She held that “the Prosecution need not demonstrate … an inference [of genocidal intent] is the only reasonable one at the arrest warrant stage” She was satisfied that there was reasonable grounds to issue an arrest warrant on the basis of the existence of reasonable grounds to believe that Omar Al Bashir has committed the crime of genocide. (Separate and Partly Dissenting Opinion of Judge Anita Ušacka, ICC-02/05-01/09-3, paras. 8, 27-34, 84 and 105).
   The Appeals Chamber accordingly reversed the decision of the Pre-Trial Chamber because it had applied an erroneous standard of proof. In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounted to requiring the prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence was the existence of genocidal intent, then it could not be said that such a finding established merely “reasonable grounds to believe”. The Pre-Trial Chamber was directed to decide anew, on the basis of the correct standard of proof, whether a warrant of arrest in respect of the crime of genocide should be issued. Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC A. Ch., Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", ICC-02/05-01/09, 3 February 2010, paras. 33 and 41.
   Following the Appeals Chamber, the Pre-Trial Chamber stated in Prosecutor v. Mudacumura, Decision on the Prosecutor's Application under Article 58, ICC-01/04-01/12-1-Red-tFRA, 13 July 2012, para. 19, that "The evidence need only establish a reasonable conclusion that the person committed a crime within the jurisdiction of the Court, and it is not required that this be the only reasonable conclusion that can be drawn from the evidence".

Author: Mark Klamberg

Updated: 30 June 2016

[474] 7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain:
(a) The name of the person and any other relevant identifying information;
(b) The specified date on which the person is to appear;
(c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and
(d) A concise statement of the facts which are alleged to constitute the crime.
As an alternative to a warrant of arrest, a suspect may be summoned to appear. The Rome Statute does not specify what is required in the Prosecutor's application for summons. Presumably it is the same as in an application for warrant of arrest, with the exception that there is no need to specify the reasons why an arrest is necessary.
In Situation in Darfur, Sudan, Prosecutor's Application under Article 58 (7), 27 February 2007, the Prosecutor requested that summons to appear be issued. In Prosecutor v. Harun and Kushayb, Decision on the Prosecution Application under Article 58(7) of the Statute, 27 April 2007, paragraph 125, PTC I was not satisfied that that the requirements of Article 58(7) of the Statute were met and instead it issued arrest warrants. In Prosecutor v. Banda and Jerbo, Second Decision on the Prosecutor's Application under Article 58, the Pre-Trial Chamber issued summons to appear. In Abu Garda, the Prosecutor applied for a warrant of arrest, but changed his position when the suspcect agreed to surrender voluntarily. In Abu Garda, the Pre-Trial Chamber stated that it was "satisfied that that there are reasonable grounds to believe that a summons to appear is sufficient to ensure the appearance of Abu Garda before the Court within the meaning of Article 58(7) of the Statute" (Prosecutor v. Abu Garda, ICC PT. Ch. I, Decision on the Prosecutor's application under Article 58, 7 May 2009, para. 37). However, the Pre-Trial Chamber reserved "its right to review this finding either propio motu or at the request of the Prosecutor, however, particularly if the suspect fails to appear on the date specified in the summons or fails to comply with the orders contained in the summons to appear issued by the Chamber". (para. 38).

Cross-references:
Rules 119, 121, 122, 123,

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 702-714.
Fabricio Guarglia/Kenneth Harris/Gudrun Hochmayr, "Article 58 - Issuance by the Pre-Trial Chamber of a Warrant of Arrest or a Summons to Appear", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1133-1145.
Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 136-139.

Author: Mark Klamberg

Updated: 30 June 2016

[482] 7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.
Paragraph 7 declares that the arrested person shall be delivered to the Court as soon as possible.

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 715-720.
Christopher K. Hall, “Article 59: Arrest Proceedings in the Custodial State”, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers´ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1147-1158.
Karel De Meester, “Article 59: Arrest proceedings in the custodial State”, in Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Annotated, Larcier, Ghent, 2013, pp. 247-252.

Author: Mark Klamberg

Updated: 30 June 2016

Article 60

[483] Initial proceedings before the Court
General Remarks
Article 60 concerns the initial proceedings before the Court, including pre-trial release and detention. Human rights law creates a presumption that the suspect should be released pending trial, see Article 9(3) of the International Covenant on Civil and Political Rights. However, in international criminal proceedings the general rule is rather that accused are detained throughout the proceedings. There are no provisions in the ICTY and ICTR statutes on pre-trial release. This may be justified by the seriousness of the crimes in international criminal proceedings.
However, in Bemba, the Pre-Trial Chamber clarified that that deprivation of liberty should be an exception and not a rule is a fundamental principle, a corollary of the presumption of inocence provided in Article 66 of the Statute and the guiding principle upon which the review should be based, Prosecutor. v. Bemba, ICC PT. Ch., Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa, 14 August 2009, paras. 36-37.

Author: Mark Klamberg

Updated: 30 June 2016

Article 60(1)

[484] 1. Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial.
Regardless of how a suspect was brought to the Court, the Pre-Trial Chamber must satisfy itself the person is informed of the charges against him or her and his or her rights. This is consistent with human rights law which provides that an arrested or detained person"shall be brought promptly before a judge or other office authorized by law to exercise judicial power" see ICCPR Article 9(3).
   At this stage the Pre-Trial Chamber is required to notify the person the charges and accusations made under Article 58.
   The Pre-Trial Chamber may authorize that initial appearance is made in public, see Prosecutor v. Lubanga, ICC PT. Ch. I, Order Scheduling the First Appearance of Mr Thomas Lubanga Dyilo, 17 March 2006, PTC I decided to hold a public hearing.
   As indicated above, the scope and purpose of the initial appearance is limited to informing the suspect of the charges against him or her and his or her rights. Thus, the Single Judge ruled in Ruto et. al that victims' intervention at this stage is not appropriate, see Prosecutor v. Ruto et. al, ICC PT. Ch., Decision on the Motion by Legal Representative of Victim Applicants to Participate in Initial Appearance Proceedings, 30 March 2011, para. 6, the Single Judge held the view that victims' intervention at the stage of initial appearance is not appropriate. See also Prosecutor v. Ruto et. al, ICC PT. Ch., Decision on the Conduct of the Proceedings Following the Application of the Government of Kenya Pursuant to Article 19 of the Rome Statute, 4 April 2011 para. 11, where the Pre-Trial Chamber held the view that to consider issues related to Article 19 proceedings during the initial appearance hearing would certainly go beyond the scope of an initial appearance hearing as defined by the Statute and Rules thereto.

Cross-references:
Regulation 51

Author: Mark Klamberg

Updated: 30 June 2016

[488] 5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released.
Paragraph 5 allows the Pre-Trial Chamber to issue a warrant of arrest to secure the presence of a person who has been released.

Doctrine:

William A Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 721-731.
Karim A.A Khan, "Article 60 - Initial Proceedings before the Court", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008. pp. 1159-1169.

Author: Mark Klamberg

Updated: 30 June 2016

Article 61

[489] Confirmation of the charges before trial
General remarks
Unique feature of the International Criminal Court
The holding of a confirmation hearing before the opening of the trial is a unique feature of the Court. No other international criminal tribunal contemplates this proceeding. Before other international criminal tribunals, the Prosecutor submits an indictment to a judge, who decides ex parte whether to confirm it and if so, issues an arrest warrant. The trial eventually follows on the confirmed indictment, after the remaining pre-trial proceedings have been completed. By contrast, at the Court a hearing pursuant to Article 61 of the Statute is held before three judges to confirm the charges against the person concerned, after a warrant of arrest or a summons to appear under Article 58 of the Statute has been issued ex parte. The person concerned may challenge those charges during the confirmation hearing and, if successful, prevent the opening of a trial against him or her. Article 61 marks the boundaries between the pre-trial and trial stages before the Court.

Purpose of the confirmation hearing
The purpose of the confirmation hearing is not to find the truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued, but to confirm the charges on which the Prosecutor intends to seek trial. The word “confirm” means to “make valid by formal authoritative assent; to ratify, sanction”. Accordingly, the Pre-Trial Chamber validates the charges as formulated by the prosecution by determining whether the evidence presented is sufficient to commit said person for trial, and, in the event that the charges are confirmed, it demarcates the subject-matter of the case, designs the legal and factual framework for the subsequent trial proceedings and facilitates the preparation for trial [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, para. 14; Kenyatta and Muthaura, ICC T. Ch. V, 28 December 2012, para. 18; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, para. 25]. In short, the confirmation of charges hearing exists to separate those cases and charges which should go to trial from those which should not. It serves to ensure the efficiency of judicial proceedings and to protect the rights of persons by ensuring that cases and charges go to trial only when justified by sufficient evidence [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, paras. 39 and 47].
   The confirmation hearing is therefore not a “trial before the trial” or a “mini-trial”, but a procedure designed to protect the suspect against unfounded accusations and to ensure judicial economy [Prosecutor v. Lubanga, ICC PT. Ch. I, 29 January 2007, para. 37; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 5-6; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, paras. 63-64; Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 28; Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 39; Prosecutor v. Banda and Jerbo, ICC PT. Ch. I, 8 March 2011, para. 31; Prosecutor v. Muthaura et al., Decision on the Schedule for the Confirmation of Charges Hearing, 13 September 2011, para. 8; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 41; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 40; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 52].
   Moreover, the confirmation hearing is not intended to revisit the “reasonable grounds to believe” determination for the issuance of a warrant of arrest or to assess the manner in which the Prosecutor has conducted the investigation [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 55-56; Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 48]. The confirmation hearing is only meant to assess the sufficiency of the results of the investigation to proceed to trial [Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 48; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, paras. 51-53; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, paras. 63-65], regardless of whether the suspect agrees to consider as proven the facts alleged by the Prosecutor [Prosecutor v. Banda and Jerbo, ICC PT. Ch. I, 8 March 2011, para. 46].
   The Court has ruled that confirmation hearings are justified by the need to provide for the early dismissal of cases lacking a substantive evidentiary basis [Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, Separate opinion of Judge Cuno Tarfusser, para. 4] and to identify clearly and in detail the facts of those cases deserving a trial [Prosecutor v. Lubanga, A. Ch., 8 December 2009, para. 90, fn. 163].

Sequence of the confirmation hearing
Article 61 of the Statute describes the sequence of events in relation to the confirmation of the charges. The proceedings leading to the confirmation of charges hearing pursuant to Article 61(7) of the Statute commence with the initial appearance of the suspect [Prosecutor v. Gaddafi and Al-Senussi, ICC PT. Ch. I, 30 July 2013, para. 34]. Thereafter, pursuant to Article 61(3)(a) of the Statute, the Prosecutor must provide the suspect with a copy of the document containing the charges within a reasonable time before the confirmation hearing. Article 61(4) of the Statute clarifies that the provision of the document containing the charges alone does not limit the Prosecutor’s flexibility with respect to the charges brought. Before the confirmation hearing, the Prosecutor may continue his investigation, amend or withdraw charges without the permission of the Pre-Trial Chamber. This flexibility of the Prosecutor is more limited after the confirmation of the charges with respect to the amendment, addition or withdrawal of charges. The Pre-Trial Chamber may confirm, decline to confirm or request the Prosecution to consider amending its charges (Article 61(7) of the Statute), but it may not add or modify the charges, which is the responsibility of the Prosecution [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, para. 4; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, para. 7]. If further investigations lead the Prosecutor to reassess his theory about the suspect’s liability for the crimes charged, he may seek, within the limits of Article 61(9) of the Statute, an amendment or withdrawal of the charges, as necessary. The amendment of the charges after their confirmation is only possible with the permission of the Pre-Trial Chamber. In order to add additional charges or substitute charges with more serious charges, a new confirmation hearing must be held. Withdrawal of charges after the commencement of the trial is only possible with the permission of the Trial Chamber [Prosecutor v. Lubanga, ICC A. Ch., 13 October 2006, paras. 53 and 56].

Preparatory works
The drafters of the Statute did not import the ICTY/ICTR procedures. The drafters of Article 61 specifically rejected the idea of an indictment procedure which had appeared in earlier drafts of the Statute and replaced it with a new confirmation of charges hearing, which constituted part of a new “single, straightforward procedural approach, acceptable to delegations representing different national legal systems”. The confirmation of an indictment at the ICTY/ICTR is an ex parte procedure, conducted in the absence of the defence by one judge. The confirmation of charges hearing, in comparison, was deliberately established as a hearing before a Pre-Trial Chamber of three judges at which the person charged has the right to be present and to contest the evidence and following which the Pre-Trial Chamber must assess the evidence. This process requires the Pre-Trial Chamber to go beyond looking at the Prosecutor’s allegations “on their face” as is done in confirming an indictment at the ICTY/ICTR [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 43].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(1)

[490] 1. Subject to the provisions of paragraph 2, within a reasonable time after the person’s surrender or voluntary appearance before the Court the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.
The presence of the suspect at the confirmation of charges hearing is envisaged in Article 61(1) of the Statute, which provides that the hearing “shall be held in the presence of the Prosecutor and the person charged” unless one of the conditions set forth in paragraph 2 of that provision is met [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 12 March 2013, para. 29]. Some judges have emphasized the importance of the personal attendance of suspect at the confirmation of charges hearing, expecting the suspect’s presence throughout the sessions, unless exceptional circumstances arise [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 13 February 2013, para. 9].
The Court does not provide the person named in the Prosecutor’s application under Article 58 with any procedural instrument before the Pre-Trial Chamber allowing him or her to challenge the evidence presented by the Prosecutor other than, if and when the issuance of a warrant of arrest or a summons to appear has set in motion the process leading to the confirmation hearing, through the procedural remedies expressly provided for and within the context and for the purposes of the hearing on the confirmation of charges pursuant to Article 61(1) of the Statute [Situation in Kenya, ICC PT. Ch. II, 11 February 2011, para. 19].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(2)

[491] 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has:
(a) Waived his or her right to be present; or
(b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held.

In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice.
Article 61(2) deals with a hearing to confirm charges against a person who has not yet become an accused person. In that scenario, the Statute contemplates that the proceedings may be held in his absence, if the person so chooses, considering that no judicial decision would as yet have confirmed as realistic the probability that he has a case to answer. In the absence of such a judicial decision, there would have been no appreciable juridical link that tied the suspect to the Court and its processes in a substantial way. That context is different as compared to the trial of a person who is an accused person, by virtue of a decision of a Pre-Trial Chamber following an appraisal of some evidence establishing substantial grounds to believe that the accused committed the crime charged [Prosecutor v. Ruto and Sang, ICC T. Ch. V(A), 18 June 2013, para. 60].
A person who wishes to waive the right to be present at the hearing must either decide to be present during the whole proceeding or may waive his right to be present throughout the entirety of the hearing [Prosecutor v. Ruto et. al, ICC PT. Ch. II, Decision on the "Defence Request pursuant to Rule 124(1) for Mr. William Ruto to Waive his Right to be Present for part of the Confirmation of charges Hearing", 29 August 2011, para. 12].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(3)

[492] 3. Within a reasonable time before the hearing, the person shall:
By contrast with the procedure before the ICTY and ICTR, the charging document is filed by the Prosecution with the Pre-Trial Chamber for the purpose of the confirmation hearing after the suspect has voluntarily appeared, or has been surrendered to the Court, except for those exceptional situations in which the confirmation hearing is held in absentia [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 25 June 2008, paras. 8-9]. The time limits of the Prosecution’s disclosure obligations under Article 61(3) of the Statute are elaborated on by rule 121(3), (4) and (5) of the Rules, which sets specific time limits (no later than 30 days and no later than 15 days before the date of the confirmation hearing) for the Prosecution to provide the document containing the charges and the list of evidence [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 92; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 10 March 2008, p. 6].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(3)(a)

[493] (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial;(v) and
Purpose of the document containing the charges
The document containing the charges is to be understood as the document which frames the confirmation hearing. This is the document which, in accordance with Article 67(1) of the Statute and rule 121 of the Rules, must establish in detail the nature, cause and content of the charges brought against the suspect and which forms the basis for preparation for the confirmation hearing [Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 90]. Accordingly, the Chambers have limited themselves to the charges specified in the Prosecutor’s document containing the charges, referring allegations concerning other crimes brought to the Chambers’ attention by third parties to the scope of the “situation” within which a given case has arisen [Prosecutor v. Lubanga, ICC PT. Ch. I, 26 September 2006]. Similarly, words such as “including but not limited to” have been found to be meaningless in the document containing the charges, noting that pursuant to Articles 61(3)(a) and 67(1)(a) of the Statute, rule 121(3) of the Rules and regulation 52 of the Regulations the suspect must be informed in detail of the facts underlying the charges against him or her before the commencement of the confirmation hearing, and that the Prosecution must know the scope of its case as well as the material facts underlying the charges that it seeks to prove, and must be in possession of the evidence necessary to prove those charges to the requisite level in advance of the confirmation hearing [Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, paras. 81-83; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 99].

Content of the document containing the charges
A “charge” is composed of the facts and circumstances underlying the alleged crime as well as of their legal characterisation [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 44; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 56]. Pursuant to Article 67(1)(a) of the Statute, the accused has the right to be informed “in detail” of the content of the charges. This enables him to meaningfully prepare his defence. The required level of specificity of the content of the charge depends on the specific circumstances of the case [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, para. 35]. Pursuant to regulation 52 of the Regulations of the Court, the document containing the charges must include a) the full name of the person and any other relevant identifying information; b) a statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court; and c) a legal characterisation of the facts to accord both with the crimes under Articles 6, 7 or 8 and the precise form of participation under Articles 25 and 28. Consequently, the Prosecution is under no obligation to articulate in the document containing the charges its legal understanding of the various modes of liability and the alleged crimes, and it may mention events which occurred before or during the commission of the acts or omission with which the suspect is charged, especially if that would be helpful in better understanding the context in which the conduct charged occurred [Prosecutor v. Lubanga, ICC PT. Ch. I, 29 January 2007, paras. 151-152;Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 25 June 2008, para. 21]. Moreover, the document containing the charges may not be exhaustive in all the information in support of the charges. However, it has to provide the Defence with a sufficiently clear picture of the facts underpinning the charges against the suspect and in particular in relation to the crimes, the dates and locations of their alleged commission [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 98]. The document containing the charges transmitted by the Prosecution is to be read in conjunction with the Prosecution’s list of evidence [Prosecutor v. Lubanga, ICC PT. Ch. I, 29 January 2007, para. 150; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 25 June 2008, para. 21].

Language of the document containing the charges
The Prosecution is usually ordered, for the purpose of its disclosure obligations to the Defence, to file its charging document in a language that the person fully understands and speaks, pursuant to Article 67(1)(a) of the Statute [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 10 March 2008, p. 6].

Role of the Pre-Trial Chamber
The Pre-Trial Chambers are in particular mandated to ensure the protection of the rights of the arrested person provided for in Articles 61(3) and 67 of the Statute and rule 121 of the Rules, including the right to have adequate time and facilities for the preparation of his or her defence and the right to be tried without undue delay [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 10 March 2008, p. 6]. The Pre-Trial Chambers have a general competence under Article 61(3) of the Statute to issue orders regarding disclosure of evidence for the purposes of the confirmation of charges hearing [Prosecutor v. Blé Goudé, ICC PT. Ch. I, 6 May 2014, para. 6].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(3)(b)

[494] (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.

The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.
Scope of evidence disclosed to the Defence
The Defence is not entitled to full access to the entire Prosecution file of the investigation of the situation and the case because Article 61(3), together with Articles 67(1)(a) and (b), 67(2), and Rules 76, 77 and 121(3) do not oblige the Prosecution to disclose to the Defence or to permit the Defence to inspect any material which the Prosecution does not intend to present at the confirmation hearing and which is neither potentially exculpatory nor material to Defence preparations for the confirmation hearing. These provisions regulate the extent, time, and manner in which the Defence can access some of the materials contained in the Prosecution record to adequately prepare for the confirmation hearing [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 7-15]. The intention of these provisions is that the Defence should be in a position to prepare adequately for the confirmation hearing as soon as practicable, including the decision on the scope of its defence and the selection of the evidence on which it intends to rely at the hearing [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 128]. In accordance with these provisions, the Prosecution is usually ordered, for the purpose of its disclosure obligations to the Defence, to file a list of evidence in the case, to disclose all evidence on which it intends to rely at the confirmation hearing, including potentially exculpatory materials, and to allow the system of pre-inspection and inspection to be put in place [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 10 March 2008, pp. 11-14].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(4)

[495] 4. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal.
Temporal limit for the Prosecution’s investigation
Article 61(4) of the Statute was initially found to provide that the Prosecution may continue its investigation until the start of the confirmation hearing and that, since the Prosecution was not expressly conferred the right to continue with its investigation after the confirmation hearing, said investigation must be completed by the time the confirmation hearing starts, barring exceptional circumstances that might justify later isolated acts of investigation [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 105 and 130-131; Prosecutor v. Lubanga, ICC PT. Ch. I, 19 May 2006, para. 39]. However, the Appeals Chamber later clarified that there is no temporal limit for the Prosecutor’s investigations. In fact, the Prosecutor’s flexibility with respect to the investigation that is acknowledged by Article 61(4) of the Statute remains unaffected by the confirmation of the charges, and the Prosecutor does not need to seek permission from the Pre-Trial Chamber to continue the investigation [Prosecutor v. Lubanga, ICC A. Ch., 13 October 2006, para. 53]. Ideally, although it is not a requirement of the Statute, it would be desirable for the investigation to be complete by the time of the confirmation hearing [Prosecutor v. Lubanga, ICC A. Ch., 13 October 2006, para. 54; Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 44]. This finding has been relied upon to inquire about the reasons behind the Prosecution’s apparent delays in conducting some investigations [Prosecutor v. Kenyatta and Muthaura, ICC PT. Ch. II, 29 January 2013, para. 9]. In other occasions, this finding has been found not to exclude the possibility that the Prosecution may conduct further investigation thereafter only in certain circumstances, namely if it shows that it is necessary in order to establish the truth or certain circumstances exist that justify doing so [Prosecutor v. Kenyatta, ICC PT. Ch. II, 22 March 2013, para. 36; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, para. 34]. In any event, the Court’s statutory documents do not oblige the Prosecutor to complete the entirety of her investigation at the beginning of the pre-trial proceedings [Prosecutor v. Ntaganda, ICC PT. Ch. II, 18 June 2013, para. 31].

No judicial authorisation required
Article 61(4) of the Statute clarifies that the provision of the document containing the charges alone does not limit the Prosecutor’s flexibility with respect to the charges brought. Before the confirmation hearing, the Prosecutor may continue the investigation, and amend or withdraw charges without the permission of the Pre-Trial Chamber [Prosecutor v. Lubanga, ICC A. Ch., 13 October 2006, para. 53; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 88].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(5)

[496] 5. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.
Difference between evidence and facts
In the view of the Appeals Chamber, the evidence put forward by the Prosecutor at the confirmation hearing to support a charge pursuant to Article 61(5) of the Statute must be distinguished from the factual allegations which support each of the legal elements of the crime(s) charged. In the confirmation process, the facts must be identified with sufficient clarity and detail, meeting the standard in Article 67(1)(a) of the Statute [Prosecutor v. Lubanga, ICC A. Ch., 08 December 2009, footnote 163; Prosecutor v. Lubanga, ICC T. Ch. I, 8 January 2010, paras. 29-30].

Incriminating evidence
By contrast, the Prosecution need not present at the confirmation of charges hearing all incriminating evidence that might be in its possession, particularly that on which the Prosecution states that it places lesser reliance [Prosecutor v. Lubanga, ICC PT. Ch. I, 19 May 2006, para. 34]. The limited purpose of the confirmation hearing is reflected in the fact that the Prosecutor may rely on documentary and summary evidence and need not call the witnesses who will testify at trial. The use of such summaries, even where the identities of witnesses are unknown to the defence and their underlying statements are not fully disclosed, is not necessarily prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. However, in such circumstances, the Pre-Trial Chamber will need to consider on a case-by-case basis, bearing in mind the character of the confirmation of charges hearing, whether and what steps may need to be taken to ensure that the use of such statements is consistent with the rights of the accused and a fair and impartial trial [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 47]. In fact, the Court has ruled on occasion that the limited scope of the confirmation hearing, and its object and purpose within the criminal procedure embraced by the Statute and the Rules, require from the Prosecution a particular effort to limit the number of witnesses on whom it intends to rely at the confirmation hearing to the very core witnesses, and in general the debate of the Prosecution evidence is required to be limited to analysing the core evidence supporting the charges against the suspect [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 78-79].

Potential witnesses
It is important to highlight that those individuals who have given a statement or have been interviewed by the Prosecution are regarded as potential witnesses due to the Prosecution’s choice not to rely on them for the purpose of the confirmation hearing. Consequently, their statements, interview notes and/or interview transcripts, whether in an unredacted, redacted or summary format, are not, in principle, part of the evidentiary debate held at the confirmation hearing, nor can be used to meet the evidentiary standard provided for in Article 61(2) of the Statute, unless the Defence decides to introduce them into evidence upon the inter partes disclosure by the Prosecution [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 100-101].

Use of summaries
Moreover, pursuant to Article 61(5) of the Statute, the Prosecution can rely on summaries of the statements, interview notes and interview transcripts of the relevant witnesses as long as the information provided by the witnesses is such that a summary of their statements, interview notes or interview transcripts will not identify them. The use of summaries is not only consistent with the limited scope, the object and the purpose of the confirmation hearing, but also satisfies the right of the suspects to have the confirmation hearing held within a reasonable time, without being prejudicial to or inconsistent with their other rights and with a fair and impartial trial, and, in the event that the charges are confirmed, it will also facilitate the preparation of the trial [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 137-138].

Probative value of documentary and summary evidence
The Appeals Chamber has ruled that the Pre-Trial Chamber can evaluate the credibility of witnesses without their in-person testimony and has recognised that rules regarding orality in the pre-trial phase are more relaxed than at trial [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 45]. However, the summaries of witnesses’ statements have a lesser probative value than unredacted parts of redacted statements, interview notes or interview transcripts; and the difference in probative value between a summary and the unredacted parts of heavily redacted statements, interview notes or interview transcripts is minimal [Prosecutor v. Lubanga, ICC PT. Ch. I, 5 October 2006, pp. 4 and 6; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 88-89]. Accordingly, the use of a summary by the Prosecution diminishes, as a general rule, the probative value of such evidence [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, para. 133]. As a consequence, the Prosecutor’s reliance on documentary or summary evidence in lieu of in-person testimony will limit the Pre-Trial Chamber’s ability to evaluate the credibility of witnesses. While it may evaluate their credibility, the Pre-Trial Chamber’s determinations will necessarily be presumptive, and it should take great care in finding that a witness is or is not credible. The Prosecutor’s reliance on summary evidence may also mean that the Pre-Trial Chamber will not be presented with all details of the evidence in the possession of the Prosecutor [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 48] [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 12 June 2014, para. 21; Prosecutor v. Blé Goudé, ICC T. Ch. I, 11 December 2014, para. 14]. Moreover, given the fact that the Defence shall not have access for the purpose of the confirmation hearing to redacted or unredacted versions of the relevant statements, interview notes and interview transcripts summaries by the Prosecution, the probative value of said summaries when relied upon by the Defence shall only be subject to the principle of free assessment of evidence provided for in Article 69 of the Statute and rule 63 of the Rules [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, para. 135].

Probative value of anonymous witnesses
Although anonymous witnesses’ statements and summaries thereof are permitted at the pre-trial stage, this evidence may be taken to have a lower probative value in order to counterbalance the disadvantage that it might cause to the Defence and have to be evaluated on a case-by-case basis, depending on whether the information contained therein is corroborated or supported by other evidence presented into the case file [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, paras. 159-160; Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 50; Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, paras. 49-52; Prosecutor v. Banda and Jerbo, ICC PT. Ch. I, 8 March 2011, para. 41; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 49; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 78; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 90]. Furthermore, anonymous hearsay contained in witness statements will be used only for the purposes of corroborating other evidence, while second degree and more remote anonymous hearsay contained in witness statements will be used with caution, even as a means of corroborating other evidence [Prosecutor v. Lubanga, ICC PT. Ch. I, 29 January 2007, paras. 101-106; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, paras. 118-120, 137-140; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 49; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 78; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 90].

Probative value of hearsay evidence
Hearsay from a known source will be analysed on a case by case basis, taking into account factors such as the consistency of the information itself and its consistency with the evidence as a whole, the reliability of the source and the possibility for the Defence to challenge the source [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, para. 141; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 49].

Use of summaries instead of redactions
In any event, the use by the Prosecution of summaries rather than redactions of the relevant statements, interview notes and interview transcripts is the appropriate procedural mechanism for the Prosecution to discharge its disclosure obligations because i) the redactions authorised at the confirmation hearing stage would, for the most part, be useless at the trial stage, and ii) the time required for the analysis and decision on requests for redactions would lead to a delay in the confirmation proceedings [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 106-110]. The Prosecution summaries must include all information of a potentially exculpatory nature or otherwise material for the Defence’s preparation of the confirmation hearing [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, para. 111], and need not be judicially approved if they only aim at complying with the Prosecution’s disclosure obligations under Article 67(2) and Rule 77 [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, paras. 113-114, 118].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(6)

[497] 6. At the hearing, the person may:
(a) Object to the charges;
(b) Challenge the evidence presented by the Prosecutor; and
(c) Present evidence.
Rights of the person charged
Article 61(6) of the Statute enshrines the rights of the person charged to challenge the evidence presented by the Prosecutor and to present his/her own evidence. If these rights are availed of, the evidence inevitably will be contested. For these rights to have any meaning, the Pre-Trial Chamber must evaluate the contested evidence and resolve any ambiguities, contradictions, inconsistencies or doubts as to credibility introduced by the contestation of the evidence [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 40]. In other words, the appropriate venue for discussing questions regarding the relevance of such factual allegations, and the relevance, admissibility and probative value of evidence is the confirmation of charges hearing which gives the Defence the opportunity to raise any apposite challenges and objections pursuant to Article 61(6) of the Statute [Prosecutor v. Blé Goudé, ICC PT. Ch. I, 11 September 2014, para. 8].

Scope of challenges available to the Defence
Pursuant to Article 61(6), the Defence enjoys a broad scope of action, since under this provision a suspect may contest at the confirmation hearing both matters of statutory interpretation and evidential aspects of the Prosecutor’s case [Prosecutor v. Ruto et al., ICC A. Ch., 24 May 2012, para. 27; Prosecutor v. Kenyatta and Muthaura, ICC A. Ch., 24 May 2012, para. 33].

Connection with disclosure and other defence rights
The effective exercise of the right to challenge the evidence depends on the disclosure “as soon as practicable” of any potentially exculpatory excerpts in the statements of witnesses on whose written or oral testimony the Prosecution intends to rely on at the confirmation hearing (Article 67(2) of the Statute). In turn, this right is also linked to the right of the person to have adequate time and facilities for the preparation of the defence and to communicate freely and in confidence with counsel of his or her own choice [Prosecutor v. Lubanga, ICC PT. Ch. I, 19 May 2006, para. 36].

Limitations in the challenges available to the Defence
It is an inherent consequence of protective measures under rule 81(4) of the Rules that in individually justified cases, the Defence’s ability to raise, and the Chamber’s ability to address in its decision, certain questions pertaining to the reliability of witnesses are limited [Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 94].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(7)

[498] 7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.
Purpose of the determination
According to Article 61(7) of the Statute, at the confirmation hearing the Pre-Trial Chamber must determine “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”. On this basis, the Pre-Trial Chamber is not a finder of truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued [Prosecutor v. Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 55]. However, the Pre-Trial Chamber is required to evaluate the evidence in order to make a determination as to the sufficiency of the evidence. Accordingly, the Pre-Trial Chamber must necessarily draw conclusions from the evidence where there are ambiguities, contradictions, inconsistencies or doubts as to credibility arising from the evidence and enjoys a general authority to assess the evidence pursuant to Articles 61(6) and 69(4), and rules 63(2) and 122(9) [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, paras. 39-41]. Moreover, the Pre-Trial Chamber may, pursuant to rule 58(2), consider jurisdictional issues at the confirmation hearing, deciding on them during its determination of whether the Prosecutor has submitted sufficient evidence to establish substantial grounds to believe that the charged crimes were committed [Prosecutor v. Ruto et al., ICC A. Ch., 24 May 2012, para. 28; Prosecutor v. Kenyatta and Muthaura, ICC A. Ch., 24 May 2012, para. 34].

Definition of the evidentiary standard
The limited purpose of the confirmation of charges proceedings is reflected in the fact that the Prosecutor must only produce sufficient evidence to establish substantial grounds to believe the person committed the crimes charged. The Pre-Trial Chamber need not be convinced beyond a reasonable doubt, and the Prosecutor need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe [Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 40; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 40; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 52; Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 47; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, para. 17]. Similarly, the prerequisites to issue of a warrant of arrest and to confirm the charges are different. Whereas the test for the issuance of a warrant of arrest under Article 58(1)(a) and (b) of the Statute is the presence of “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” coupled with the existence of grounds warranting detention, the higher standard for the confirmation of the charges is the existence of “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged” (Article 61(7) of the Statute) [Prosecutor v. Lubanga, ICC A. Ch., 13 June 2007, para. 14; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, para. 17; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 12 July 2013, para. 35]. This standard imposes a higher evidentiary threshold than the ICTY/ICTR’s lower “reasonable grounds” standard (Rule 98 bis of the ICTY Rules of Procedure and Evidence), which is used in the context of the issuance of a warrant of arrest under Article 58 of the Statute [Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 28; Prosecutor v. Al Bashir, ICC A. Ch., 3 February 2010, para. 30; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 40; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 52; Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 43; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, para. 17; Prosecutor v. Bemba et al., ICC PT. Ch. II, 11 November 2014, para. 25]. The standard in Article 61(7) of the Statute has therefore been defined as an “intermediate evidentiary threshold” [Prosecutor v. Ntaganda, ICC PT. Ch. II, 9 June 2014, para. 9].

Scope of application of the evidentiary standard
The evidentiary threshold under Article 61(7) applies to all facts and circumstances of the case and is the same for all factual allegations, whether they pertain to the individual crimes charged, contextual elements of the crimes or the criminal responsibility of the suspect [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, paras. 19-20]. By contrast, the scope of determination under Article 61(7) of the Statute does not relate to the manner in which the Prosecutor conducted his investigations, since under no circumstances will a failure on the part of the Prosecutor to properly investigate automatically justify a decision of the Chamber to decline to confirm the charges, without having examined the evidence presented [Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 48; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 51; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 63].

Application of the evidentiary standard by the Prosecution
In order to meet this evidentiary threshold (substantial grounds to believe), the Prosecution must offer “concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations” [Prosecutor v. Lubanga, ICC PT. Ch. I, Decison on the Confirmation of Charges, 29 January 2007, para. 39; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, Decision on the Confirmation of Charges, 30 September 2008, para. 65; Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 29; Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 37; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 40; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 40; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 52; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, para. 17; Prosecutor v. Ntaganda, ICC PT. Ch. II, 9 June 2014, para. 9; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 12 June 2014, para. 19; Prosecutor v. Bemba et al., ICC PT. Ch. II, 11 November 2014, para. 25; Prosecutor v. Blé Goudé, ICC T. Ch. I, 11 December 2014, para. 12]. At this stage the Prosecutor is requested to substantiate his allegations that the crimes charged were committed with as precise as possible data [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 103].

Application of the evidentiary standard by the Pre-Trial Chamber
When it comes to the Pre-Trial Chamber, the Chamber must “be thoroughly satisfied that the Prosecutor’s allegations are sufficiently strong to commit the person for trial” [Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC PT. Ch. I, 29 January 2007, para. 39; Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, para. 17; Prosecutor v. Ntaganda, ICC PT. Ch. II, 9 June 2014, para. 9; Prosecutor v. Bemba et al., ICC PT. Ch. II, 11 November 2014, para. 25]. It must also be noted that the Statute and the Rules of Procedure and Evidence do not grant the Pre-Trial Chamber the power to determine only the relevance or admissibility of evidence but not its weight. Indeed, no provision precludes the Chamber from evaluating the evidence as is required by Article 61(7) of the Statute or otherwise limits the Chamber’s authority to freely assess evidence [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 42]. In fact, in determining whether to confirm charges under Article 61 of the Statute, the Pre-Trial Chamber may evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses [Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, paras. 1 and 47; Prosecutor v. Ntaganda, ICC PT. Ch. II, 9 June 2014, para. 10]. Any other interpretation would carry the risk of cases proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish substantial grounds to believe the person committed the crimes charged. This is not to say that the Pre-Trial Chamber’s ability to evaluate the evidence is unlimited or that its function in evaluating the evidence is identical to that of the Trial Chamber [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, paras. 46-47]. A wholesale assessment as to the admissibility of each item of evidence at this stage would unjustifiably delay the proceedings and give rise to an inappropriate pre-determination of evidentiary matters which should be properly decided in light of the whole of the evidence presented at trial. Such an approach would be incompatible with the fair trial rights of the suspect guaranteed under Article 67 of the Statute, and in particular, the right to be tried without undue delay under Article 67(1)(c) of the Statute [Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 44]

Assessment of the admissibility of the evidence by the Pre-Trial Chamber
Accordingly, unless a party provides information which can reasonably cast doubt on the authenticity of items presented by the opposing party, such items must be considered authentic in the context of the confirmation hearing. This principle is equally applicable to challenges raised to the admissibility of evidence under Article 69(7) of the Statute [Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC PT. Ch. I, 29 January 2007, para. 97; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 59; Prosecutor v. Bemba et al., ICC PT. Ch. II, 11 November 2014, para. 14]. Moreover, even if it were to be accepted that there were procedural shortcomings in the investigative procedures complained of, article 69(7) of the Statute does not mandate automatic exclusion of evidence thus obtained. In each case, the striking of an appropriate balance between the Statute’s fundamental values is at the discretion of the Chamber and items of evidence obtained in violation of the Statute or internationally recognised human rights will be found to be inadmissible only in circumstances where a) the violation casts substantial doubt on the reliability of the evidence, or b) the admissibility of the evidence would be antithetical to and would seriously damage the integrity of the proceedings [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, 29 January 2007, para. 84; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 61]. Moreover, neither the Statute nor the Rules provide that a certain type of evidence is per se inadmissible. Depending on the circumstances, the Pre-Trial Chamber is vested with discretion or statutorily mandated to rule on the admissibility of the evidence pursuant to Articles 69(4) and (7) of the Statute, and rule 63(3) of the Rules [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 62; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 76].

Assessment of the relevance and probative value of the evidence by the Pre-Trial Chamber
In practical terms, the “substantial grounds to believe” standard must enable all the evidences admitted for the purposes of the confirmation hearing to be assessed as a whole [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, 29 January 2007, para. 39]. In this regard, items and documents included in the parties’ lists of evidence cease to be separate pieces of evidence presented by the parties and become evidence on the record. Consequently, permitting the parties to withdraw evidence initially included in their lists will prevent the Pre-Trial Chamber from being able to make their determinations under article 61(7) [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Confirmation of Charges, 29 January 2007, paras. 141-142].
   The Appeals Chamber has held that it is not required, as a matter of principle, to fully test the reliability of every piece of evidence relied upon by the Prosecutor for the purpose of the confirmation of charges hearing [Prosecutor v. Lubanga, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”, ICC A. Ch., 14 December 2006, para. 47; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 94]. The Pre-Trial Chamber enjoys discretion in this regard in line with the principle of free assessment of evidence, which is limited to determining, pursuant to Article 69(4) and (7) of the Statute, the admissibility, relevance and probative value of the evidence placed before it [Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, paras. 61-62; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, paras. 59-60; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 73-74]. Thus, in determining whether there are substantial grounds to believe that the suspect committed each of the crimes charged, the Chamber is not bound by the parties’ characterization of the evidence. Rather, the Chamber makes its own independent assessment of each piece of evidence. Moreover, the Chamber will assess the relevance and probative value of the evidence, regardless of its kind or which party relied upon it [Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 42; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 61; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 75].
   In assessing the relevance of the evidence, the Pre-Trial Chamber must establish the extent to which this evidence is rationally linked to the fact that it tends to prove or to disprove [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 66; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 79]. The determination of the probative value of a piece of evidence requires a qualitative assessment. Pursuant to the principle of free assessment of evidence enshrined in Article 69(4) of the Statute and rule 63(2) of the Rules, the Pre-Trial Chamber will give each piece of evidence the weight that it considers appropriate [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 67; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 80].
   The Pre-Trial Chambers take a case-by-case approach in assessing the relevance and probative value of each piece of evidence. In doing so, they are guided by various factors, such as the nature of the evidence, its credibility, reliability, and source as well as the context in which it was obtained and its nexus to the charges of the case or the alleged perpetrator. Indicia of reliability such as voluntariness, truthfulness, and trustworthiness are considered [Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 58; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 68; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 81]. Accordingly, inconsistencies do not lead to an automatic rejection of the particular piece of evidence and do not bar the Chamber from using it [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 86; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 92]. Likewise, the suspects or Defence witnesses who are allegedly implicated in one way or another in the crimes are not automatically considered unreliable and/or not credible nor is their evidence granted a lower probative value as a matter of principle. Rather, their final assessment and weight depend on a case-by-case basis [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, paras. 91-92]. Eventually, it is not the amount of evidence presented but its probative value that is essential for the Pre-Trial Chamber’s final determination on the charges presented by the Prosecutor [Prosecutor v. Bemba, ICC PT. Ch. II, 15 June 2009, para. 60; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 68; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 81].
   Moreover, some Chambers have found that they are guided in their assessment by the principle of in dubio pro reo as a component of the presumption of innocence, which as a general principle in criminal procedure applies, mutatis mutandis, to all stages of the proceedings, including the pre-trial stage [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 41; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 53]. By contrast, other Chambers have ruled that the principle of in dubio pro reo is not applicable to the assessment of the probative value of the evidence presented by the Prosecution at this stage of the proceedings [Prosecutor v. Abu Garda, ICC PT. Ch. I, 8 February 2010, para. 43].

Decision by the Pre-Trial Chamber
As a result of the evidentiary debate held at the confirmation hearing, the Pre-Trial Chamber must issue, pursuant to Article 61(7) of the Statute, a decision providing the reasons for the confirmation or not of the charges, and such a decision may be particularly detailed on the factual and legal basis for the confirmation of the charges, or some of them, contained in the Prosecution’s charging document [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 25 June 2008, para. 11].

Time of the decision
Pursuant to Article 61(7), the decision on confirmation of charges should be delivered within 60 days following the confirmation hearing. The 60-day time limit shall commence from the date the Defence final written submissions have been filed [Prosecutor v. Ruto et al., ICC PT. Ch. II, 26 October 2011, para. 9]. This time limit may be extended or reduced as set out in regulation 35 of the Regulations of the Court if exceptional circumstances so warrant and when the participants have been given an opportunity to be heard [Prosecutor v. Ruto et al., ICC PT. Ch. II, 26 October 2011, para. 10].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(7)(a)

[499] Based on its determination, the Pre-Trial Chamber shall:
(a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed;
Charges confirmed for trial
Article 61(7)(a) states that, where appropriate, the Pre‐Trial Chamber shall commit the person to a Trial Chamber for trial on the charges it has confirmed. Article 64(8)(a) of the Statute further states that at the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre‐Trial Chamber. Consequently, some Trial Chambers have found that the decision on the confirmation of the charges is the only document which can serve as a reference during trial proceedings and is the authoritative document for all trial proceedings [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 29 October 2009, para. 16; Prosecutor v. Bemba, ICC T. Ch. III, 21 June 2010, para. 37]. Nonetheless, when the confirmation decision does not provide a readily accessible statement of the facts that underlie each confirmed charge, the confirmed document containing the charges must be provided for the purposes of the trial [Prosecutor v. Bemba, ICC T. Ch. III, 21 June 2010, para. 30] or a summary of the changes confirmed prepared by the Prosecution [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 29 October 2009, paras. 12-13 and 17]. Moreover, the same Trial Chambers have suggested that an annex to the confirmation decision framed in this way by the relevant Pre-Trial Chamber, including footnotes with appropriate references to paragraphs of the confirmation decision, would be of very considerable assistance during the trial [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 29 October 2009, para. 31; Prosecutor v. Bemba, ICC T. Ch. III, 21 June 2010, para. 30]. In this regard, other Trial Chambers have ordered the Prosecution to articulate the confirmed charges in a clearer way [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, para. 4; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, para. 7] and, more importantly, have found that the confirmation decision cannot be expected to serve as the only authoritative statement of the charges for the trial. In their view, the description of the charges in the document containing the charges, amended to harmonise it with the findings made in the confirmation decision, rather than the confirmation decision itself, provides a sufficiently authoritative statement of the charges relevant to the trial proceedings. As a result, the Pre-Trial Chamber’s silence on relevant statements of fact made in the document containing the charges should not result in their removal from the post-confirmation document containing the charges [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, paras. 18-19; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 28 December 2012, paras. 21-22]. In this scenario, whenever the Prosecution refers to the charges confirmed against the accused, this should be by way of the exact language of the confirmation decision, and with specific reference to the relevant paragraph(s) [Prosecutor v. Bemba, ICC T. Ch. III, 21 June 2010, para. 37]. In any event, it must be noted that the Pre-Trial Chambers have streamlined the confirmed charges in their latest decisions [Prosecutor v. Bemba et al., ICC PT. Ch. II, 11 November 2014, pp. 47-55].

Binding character of the confirmed charges for the Trial Chamber
The “facts and circumstances” appearing in the confirmed charges, and in the confirmed charges alone, determine the factual ambit of the case for the purposes of the trial and circumscribe it by preventing the Trial Chamber from exceeding that factual ambit [Prosecutor v. Banda and Jerbo, ICC PT. Ch. I, 8 March 2011, para. 34; Prosecutor v. Mbarushimana, ICC PT. Ch. I, 16 December 2011, para. 81; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 44; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 56]. The “facts described in the charges” have been defined by the Appeals Chamber as those “factual allegations which support each of the legal elements of the crime charged” [Prosecutor v. Lubanga, ICC A. Ch., 8 December 2009, footnote 163]. These refer to the essential facts constituting the elements of the crimes charged and have been denominated “material facts and circumstances” by some Trial Chambers [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, para. 9; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, para. 12]. Furthermore, according to the Appeals Chamber, the facts described in the charges are to be distinguished from “the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (Article 61(5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision does not support the legal elements of the crime charged” [Prosecutor v. Lubanga, ICC A. Ch., 08 December 2009, footnote 163]. On this basis, all the facts and circumstances that are referred to in the document containing the charges or in the decision on the confirmation of charges but do not appear in the confirmed charge (“facts underlying the charges”) have no delimiting or constraining power as such on the Trial Chamber (“subsidiary facts”), such as facts that are referred to in the document containing the charges or in the decision on the confirmation of charges serving the purpose of demonstrating or supporting the material facts and providing background information [Prosecutor v. Banda and Jerbo, ICC PT. Ch. I, 8 March 2011, para. 36; Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 47; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 59]. However useful these “other” facts and circumstances might have been to the Pre-Trial Chamber in determining whether the Prosecution has presented evidence demonstrating a clear line of reasoning underpinning its specific allegations, and thus meeting the requisite standard of proof under Article 61(7) of the Statute, they are, in principle, to be considered only as background information or as indirect proof of the material facts, and as such, are deprived of any limiting power vis-à-vis the Trial Chamber pursuant to Article 74(2) of the Statute and regulation 55(1) of the Regulations [Prosecutor v. Banda and Jerbo, ICC PT. Ch. I, 8 March 2011, para. 37; Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, para. 10; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, para. 13]. Consequently, the Pre-Trial Chamber does not engage in an examination of each and every subsidiary fact which is mentioned in the document containing the charges and upon which the Prosecutor relies to prove the existence of one or more facts described in the charges [Prosecutor v. Ruto et al., ICC PT. Ch. II, 23 January 2012, para. 48; Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 60]. Consequently, any delimiting effect can only be ascribed to the facts and circumstances which underlie the confirmed charges and must be described therein, as opposed to the factual allegations which are presented by the Prosecutor with a view to demonstrating or supporting the existence of the material facts [Prosecutor v. Blé Goudé, ICC PT. Ch. I, 11 September 2014, para. 6]. Moreover, in conducting the trial and rendering its final decision, the Trial Chamber cannot exceed the facts and circumstances described in the charges confirmed by the Pre-Trial Chamber and framed in any eventual document containing the charges, but is not bound by the Pre-Trial Chamber’s evidentiary assessments or its interpretation of the relevant provisions of the Statute [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, para. 107].

Binding character of the confirmed charges for the parties and participants
Parties and participants in a case are expected to prepare on the basis of the charges as confirmed which shape the subject-matter of the case, and thus, to take into consideration the evidence that is only relevant to the charges confirmed [Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, para. 40]. The charges as confirmed by the Pre-Trial Chamber (eventually set out in a subsequently updated document containing the charges) serve as the basis for the trial, and not the information contained in the Prosecution’s pre-trial brief [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, paras. 107 and 109]. Likewise, the temporal scope set out in the confirmation decision is binding vis-à-vis the Prosecution because the charges are to be formulated by the Prosecution in the document containing the charges, but as confirmed by the confirmation decision [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, para. 28]. Similarly, regarding the geographic scope of the charges, the use of the term “including” by the Prosecution suggests that the locations specified by the Prosecution are exemplary and not exhaustive and might therefore have an impact on expanding the parameters of the case confirmed by the Pre-Trial Chamber [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, paras. 32-33]. In this regard, whereas the Prosecution is not necessarily required to rely on entirely the same evidence at trial as it did at the confirmation of charges stage, it cannot seek to rely at trial on facts and circumstances going beyond the confirmed charges [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, para. 107].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(7)(b)

[500] (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence;
Effects of a decision not to confirm the charges
If in the exercise of its filtering function the Pre-Trial Chamber decides not to confirm the charges, this decision ends the prosecution of the suspect, thus avoiding superfluous proceedings as any warrant of arrest and other restrictive measures cease to have effect in accordance with Article 61(10) of the Statute [Prosecutor v. Bemba, ICC PT. Ch. III, 31 July 2008, para. 15]. If the Pre-Trial Chamber has confirmed some allegations but dismissed others based on the lack of sufficient evidence establishing substantial grounds to believe, within the meaning of Article 61(7) of the Statute, the Prosecution should not include the discarded allegations in its subsequent, if any, formulation of the confirmed charges [Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 28 December 2012, para. 75].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(7)(c)(i)

[501] (c) Adjourn the hearing and request the Prosecutor to consider:
(i) Providing further evidence or conducting further investigation with respect to a particular charge
Request for further evidence
The Pre-Trial Chamber may elect to adjourn the hearing on the confirmation of charges rather than making a final determination on the merits pursuant to Article 61(7) of the Statute where the Prosecutor’s evidence, viewed as a whole, although apparently insufficient, does not appear to be so lacking in relevance and probative value that it leaves the Chamber with no choice but to decline to confirm the charges, i.e. where the Prosecutor’s evidence in relation to the charges is inadequate, but remains a degree of suspicion in relation to the alleged commission of crimes and the Chamber does not exclude that the Prosecutor might be able to present or collect further evidence in relation to the alleged crimes [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 3 June 2013, paras. 15 and 37]. In these scenarios, Article 61(7) of the Statute limits the intervention of the Pre-Trial Chamber to the possibility of requesting the Prosecution to consider the opportunity to provide additional evidence, whereas Article 69(3) of the Statute gives the competent Chamber “the authority to request the submission of all evidence that it considers necessary for the determination of the truth”. Article 69(3) of the Statute is not applicable during the pre-trial proceedings conducted before the Pre-Trial Chamber because i) the Pre-Trial Chamber is not a truth-finder, and ii) according to the literal interpretation of Article 69(3) of the Statute, its application is subject to consideration of the competent Chamber that evidence other than that introduced by the Prosecution and the Defence is “necessary for the determination of the truth” [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, para. 110]. Similarly, pursuant to the Appeals Chamber, where the Pre-Trial Chamber finds the evidence insufficient because of its summary or documentary nature, the Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 48].

Effects of adjournment
A decision adjourning the confirmation hearing under Article 61(7)(c) of the Statute is not a decision declining to confirm the charges under Article 61(7)(b) of the Statute. Pursuant to Article 61(10) of the Statute, the result of declining to confirm the charges is that the arrest warrant would cease to have effect, but no such provision exists with respect to adjournment of the hearing under Article 61(7)(c). Therefore, a decision to adjourn the confirmation hearing under Article 61(7)(c) does not represent a final disposal of the merits of the case by the Pre-Trial Chamber, but is an intermediate procedural step, and has no effect on the previous finding in relation to the warrant of arrest that there are reasonable grounds to believe that the suspect committed a crime within the jurisdiction of the Court. The fact that the available evidence does not meet the evidentiary threshold for Article 67(1) does not mean there was insufficient evidence for the purposes of issuing an arrest warrant under Article 58(1)(a) of the Statute [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 12 July 2013, paras. 34-35].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(7)(c)(ii)

[502] (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.
Different crimes
The Pre-Trial Chamber may, on the basis of the confirmation hearing, decide whether to confirm the charges or invite the Prosecutor to consider amending a charge if the Chamber is of the view that the evidence establishes a different crime [Prosecutor v. Lubanga, ICC PT. Ch. I, 24 May 2007, footnote 36]. In this regard, the confirmation of the charges is possible without adjourning the proceedings and giving the Defence the right to be heard where the legal characterisation of the conflict as of an international nature has already been mentioned in the decision on the arrest warrant, the Defence itself has raised the issue of the international character of the conflict at the confirmation hearing, and all participants have had the opportunity to present their observations on the matter [Prosecutor v. Lubanga, ICC PT. Ch. I, 24 May 2007, para. 43].

Amendment of the charges
However, the Pre-Trial Chamber is not vested with the authority to modify the charges brought by the Prosecutor against a suspect. According to Article 61(7) of the Statute, the Pre-Trial Chamber shall, on the basis of the confirmation of charges hearing, “determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”. On the basis of such determination, the Pre-Trial Chamber shall then either confirm those charges or decline confirmation thereof. Accordingly, the Pre-Trial Chamber does not have the power either to confirm a charge that is not specified by the Prosecutor or to clarify that the charge includes acts in addition to those specified by the Prosecutor as being included in the charge [Prosecutor v. Ruto et al., ICC PT. Ch. II, 19 August 2011, para. 7]. On the contrary, when the evidence appears to establish a different crime, pursuant to Article 61(7)(c)(ii) the Pre-Trial Chamber may request the Prosecution to consider amending a charge. Importantly, it is the Prosecution which would then amend such a charge, not the Pre-Trial Chamber [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, para. 15; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 28 December 2012, para. 19].

Request to amend the charges
At most, Article 61(7)(c)(ii) of the Statute permits the Pre-Trial Chamber, on the basis of the confirmation of charges hearing, to adjourn the hearing and request the Prosecutor to consider “[a]mending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court”. Only the presence of the requirements provided for by the said provision may trigger, at the appropriate stage of the pre-trial proceedings, the Chamber’s request to the Prosecutor to modify the charges. Such a request must be made on the basis of the confirmation of charges hearing and in light of the evidence submitted. [Prosecutor v. Ruto et al., ICC PT. Ch. II, 19 August 2011, paras. 8-9]. Moreover, Article 61(7)(c)(ii) of the Statute allows the Chamber to request the Prosecutor, on the basis of the hearing, to consider amending a charge i.e. to modify the legal characterization of facts underpinning the charges. Conversely, consistent with the principle of prosecutorial discretion, the Chamber is not vested with the authority to request the Prosecutor to consider adding a new charge, i.e. to expand the factual ambit of the charges as originally presented [Prosecutor v. Kenyatta et al., ICC PT. Ch. II, 23 January 2012, para. 285]. In this regard, "a complete and in-depth analysis of all the evidence" is unwarranted during the limited examination under Article 61(7)(c)(ii) (Prosecutor v. Bemba, ICC PT. Ch. III, 3 March 2009, para.17). It suffices that "the evidence submitted appears to establish a different crime within the jurisdiction of the Court" (Prosecutor v. Bemba, ICC PT. Ch. III, 3 March 2009, para. 1) with the idea that "[t]he notion of a 'different crime' pursuant to Article 61(7)(c)(ii) of the Statute relates both to the crimes as defined in Articles 6, 7 and 8 of the Statute as well as to the mode of liability as referred to in Articles 25 and 28 of the Statute. The crimes and the mode of liability correlate to each other. Depending on the mode of participation as set out in Articles 25 and 28 of the Statute, the material (objective) elements of the crime are shaped differently" (Prosecutor v. Bemba, ICC PT. Ch. III, 3 March 2009, para. 26.

Effects of adjournment
A decision adjourning the confirmation hearing under Article 61(7)(c) of the Statute is not a decision declining to confirm the charges under Article 61(7)(b) of the Statute. Pursuant to Article 61(10) of the Statute, the result of declining to confirm the charges is that the arrest warrant would cease to have effect, but no such provision exists with respect to adjournment of the hearing under Article 61(7)(c). Therefore, a decision to adjourn the confirmation hearing under Article 61(7)(c) does not represent a final disposal of the merits of the case by the Pre-Trial Chamber, but is an intermediate procedural step, and has no effect on the previous finding in relation to the warrant of arrest that there are reasonable grounds to believe that the suspect committed a crime within the jurisdiction of the Court. The fact that the available evidence does not meet the evidentiary threshold for Article 67(1) does not mean there was insufficient evidence for the purposes of issuing an arrest warrant under Article 58(1)(a) of the Statute [Prosecutor v. L. Gbagbo, ICC PT. Ch. I, 12 July 2013, paras. 34-35].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(8)

[503] 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence.
Subsequent request after completion of investigation
The Pre-Trial Chamber can properly evaluate the evidence submitted by the parties even if it lacks the full evidence because the Prosecution has not completed the investigation. Eventually, if the evidence is found to be insufficient, Article 61(8) of the Statute provides that the Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence [Prosecutor v. Mbarushimana, ICC A. Ch., 30 May 2012, para. 44].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(9) - amendment of the charges after confirmation

[504] 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this Article to confirm those charges must be held.
Amended version of the confirmed charges
In the event that the charges are confirmed, nothing in the Statute and the Rules of Procedure and Evidence prevents the filing in the pre-trial proceedings before the Trial Chamber of an amended charging document in which the underlined facts and their legal characterisation are adjusted in light of the Pre-Trial Chamber’s decision confirming the charges [Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, 25 June 2008, para. 12].

Legal recharacterisation of the charges by the Trial Chamber
By contrast, new facts and circumstances not described in the charges may only be added under the procedure of Article 61(9) of the Statute, since the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial. This is consistent with the fact that it is the Prosecutor who, pursuant to Article 54(1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to Article 61(1) and (3) of the Statute, proffers charges against suspects [Prosecutor v. Lubanga, ICC A. Ch., 8 December 2009, para. 94]. Accordingly, to give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute [Prosecutor v. Lubanga, ICC A. Ch., 8 December 2009, para. 94]. At most, the Trial Chamber may, pursuant to regulation 55 of the Regulations of the Court, change the legal characterisation of the facts confirmed by the Pre-Trial Chamber [Prosecutor v. Lubanga, ICC A. Ch., 8 December 2009, paras. 96-97]. In fact, the terms of the provision under Article 61(9) of the Statute do not exclude the possibility that a Trial Chamber modifies the legal characterisation of the facts on its own motion once the trial has commenced because Article 61(9) of the Statute and regulation 55 of the Regulations of the Court address different powers of different entities at different stages of the procedure, and the two provisions are therefore not inherently incompatible [Prosecutor v. Lubanga, ICC A. Ch., 8 December 2009, para. 77; Prosecutor v. Lubanga, ICC T. Ch. I, 8 January 2010, para. 9; Prosecutor v. Ruto and Sang, ICC A. Ch., 13 December 2013, para. 30].

Binding character of the charges for the Trial Chamber
Nonetheless, the Trial Chamber has no authority to ignore, strike down or declare null and void the charges as confirmed by the Pre-Trial Chamber. The power to frame the charges lies at the heart of the Pre-Trial Chamber’s functions, as set out in Article 61 of the Statute. By Article 61(9), after the charges have been confirmed, control over them remains with the Pre-Trial Chamber until the commencement of the trial, since post-confirmation and “before the trial has begun”, the Prosecutor may, with the permission of the Pre-Trial Chamber and on notice to the accused, amend the charges [Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC T. Ch. I, 13 December 2007, para. 39]. Although the Trial Chamber is not bound by decisions of the Pre-Trial Chamber on evidential or procedural issues, the Trial Chamber has not been given a power to review the only decision of the Pre-Trial Chamber that is definitely binding on the Trial Chamber, namely the decision on the confirmation of charges [Prosecutor v. Lubanga, ICC T. Ch. I, 13 December 2007, paras. 43-44]. The only power which the Trial Chamber has during the stage before the trial has begun, which does not involve altering the wording or the substance of the charges in any way, is to rule on any application for joinder or severance of the charges against more than one accused [Prosecutor v. Lubanga, ICC T. Ch. I, 13 December 2007, para. 41]. However, the binding character of the confirmed charges on the Trial Chamber is limited to the “facts and circumstances described in the charges” or “material facts and circumstances”. By contrast, other information and evidence of the case contained in the document containing the charges may be subject to change as the trial evolves, subject to sufficient notice being provided. In any given case, whether a particular fact or circumstance is one of the “facts and circumstances described in the charges” will depend on the nature of the prosecution’s allegations. By way of example, in the case of a factual allegation pertaining to a simple criminal act or omission, the “facts and circumstances” would include, as a minimum, i) the person or persons who engaged in the conduct, ii) the nature of the conduct, iii) the time, place and manner in which the conduct took place and iv) the results of the conduct, such as how it affected other persons including victims [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, paras. 10-11; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, paras. 13-14].

Moment when the trial starts
No definition is provided in the Statute or the Rules of Procedure and Evidence as to when the trial is considered to have begun and the drafters of the Statute, who deliberately adopted a hybrid procedure which borrows from different legal cultures and systems, intended the “commencement of the trial” to mean both the start of the proceedings before the Trial Chamber (“trial proceedings”) and the commencement of hearings on the merits (“trial” or “hearing”), depending on the provision to be applied and the context in which it was to be applied [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 16 June 2009, para. 41]. For instance, addressing challenges under Article 19 of the Statute, some Trial Chambers have found that the trial commences as soon as the decision on the confirmation of charges is filed [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 16 June 2009, paras. 49 and 57], whereas other Trial Chambers, addressing requests to amend the charges under Article 61(9), have relied on the language of Article 61(11) to conclude that the commencement of the trial means the true opening of the trial when the opening statements, if any, are made prior to the calling of witnesses [Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC T. Ch. I, 13 December 2007, para. 39]. Similarly, the Pre-Trial Chambers have considered requests for amendment of the charges submitted in the course of preparation for the actual commencement of the trial before the Trial Chamber to have been made “before the trial has [actually] begun” in accordance with Article 61(9) of the Statute, and consequently to fall within their competence [Prosecutor v. Kenyatta, ICC PT. Ch. II, 22 March 2013, para. 21; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, paras. 28-29].
At the time of writing, the Appeals Chamber has still not clarified the meaning of the expression “before the trial has begun” for the purpose of amending the charges under Article 61(9). At most, it has found that the wording of Article 61(9) of the Statute prescribes that an amendment of the charges is no longer possible “after the trial has begun” and, in order to apply this provision, irrespective of the precise moment at which the trial begins within the meaning of Article 61 (9) of the Statute, it has considered the time of the opening statements [Prosecutor v. Ruto and Sang, ICC A. Ch., 13 December 2013, para. 27]. Moreover, the Appeals Chamber has found that the wording of Article 61 (9) of the Statute (“the Prosecutor may with the permission of the Pre-Trial Chamber [...] amend the charges”) indicates that not only the request to amend the charges has to be filed before the commencement of the trial, but also that the entire process of amending the charges must be completed by that time, including the granting of permission for the amendment by the Pre-Trial Chamber because at the beginning of the trial, its parameters must be clear. Once the trial has commenced, it is no longer possible to amend or to add to the charges, irrespective of when the Prosecutor filed her request to amend the charges [Prosecutor v. Ruto and Sang, ICC A. Ch., 13 December 2013, paras. 29 and 31]. If the Prosecutor identifies a need to seek an amendment of the charges shortly before the scheduled start of a trial, she may ask for a postponement of the trial until the amendment process, including any potential appeal in that regard, is concluded [Prosecutor v. Ruto and Sang, ICC A. Ch., 13 December 2013, para. 31]. The only modification possible under the Court’s legal framework once the trial has commenced is a change to the legal characterisation of the facts pursuant to regulation 55 of the Regulations of the Court [Prosecutor v. Ruto and Sang, ICC A. Ch., 13 December 2013, para. 27].

Required application by the Prosecution
After the charges have been confirmed and before the trial has begun, only the Prosecution may amend the charges [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, para. 4; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, para. 7; Prosecutor v. Ruto and Sang, ICC T. Ch. V, 28 December 2012, para. 15; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 28 December 2012, para. 19]. The wording of Article 61(9) of the Statute allows the Prosecutor to request permission to amend the charges up until the actual commencement of the trial, provided that a request to this effect is properly “supported and justified” [Prosecutor v. Kenyatta, ICC PT. Ch. II, 22 March 2013, para. 21; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, para. 31].

Required permission by the Pre-Trial Chamber
Pursuant to Article 61(9) of the Statute, the Prosecutor may amend the charges after their confirmation only with the permission of the Pre-Trial Chamber. The Chamber’s permission is a conditio sine qua non for any amendment of the charges at this stage, as dictated by the Statute. In order to add additional charges or substitute charges with more serious charges, a new confirmation hearing must be held [Prosecutor v. Lubanga, ICC A. Ch., 13 October 2006, para. 53; Prosecutor v. Kenyatta, ICC PT. Ch. II, 22 March 2013, para. 19; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, para. 31]. In relation to the power of the Trial Chamber to amend or alter the charges confirmed by the Pre-Trial Chamber, a joint reading of Article 61(9) and Article 61(11) demonstrates that during the preparation phase of the trial any application to amend the charges must be made to the Pre-Trial Chamber [Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC T. Ch. I, 13 December 2007, para. 40]. Granting permission pursuant to Article 61(9) of the Statute to amend the charges confirmed entails consideration of the Prosecutor’s request and an evaluation of other relevant information which the Pre-Trial Chamber could seek if necessary for the purposes of its final decision [Prosecutor v. Kenyatta, ICC PT. Ch. II, 22 March 2013, para. 21; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, para. 32]. In arriving at a proper and balanced decision on a request to amend the charges, the Chamber must take into consideration the diverse factors affecting the case sub judice, including whether granting permission to amend will negatively affect other competing interests, such as the fairness and expeditiousness of the proceedings, which would result in causing prejudice to the rights of the accused to be informed promptly of the nature, cause and content of the charges, to have adequate time and facilities for the preparation of the defence and to be tried without undue delay [Prosecutor v. Kenyatta, ICC PT. Ch. II, 22 March 2013, paras. 21-22; Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 16 August 2013, paras. 32 and 42]. The consideration of relevant factors when entertaining any Article 61(9) request follows from the wording of Article 61(9) of the Statute. This provision allows the Prosecutor to proceed amending the charges post-confirmation only upon having received the “permission of the Pre-Trial Chamber” to do so. Whether to grant permission to amend the charges confirmed should be taken upon an assessment of all relevant circumstances. To say otherwise would mean that the word “permission” in the text of Article 61(9) has no added value [Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 6 September 2013, para. 33].

Required additional hearing
If a request for amendment of the charges is rejected, it is not necessary to explore further the two procedural venues provided in Article 61(9) of the Statute namely, whether the charges may be amended by the Prosecutor or whether a hearing to confirm those charges must be held [Prosecutor v. Ruto and Sang, ICC PT. Ch. II, 6 September 2013, para. 35].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(9) - withdrawal of the charges after confirmation

[505] After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges.
Moment when the trial starts
No definition is provided in the Statute or the Rules of Procedure and Evidence as to when the trial is considered to have begun and the drafters of the Statute, who deliberately adopted a hybrid procedure which borrows from different legal cultures and systems, intended the “commencement of the trial” to mean both the start of the proceedings before the Trial Chamber (“trial proceedings”) and the commencement of hearings on the merits (“trial” or “hearing”), depending on the provision to be applied and the context in which it was to be applied [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 16 June 2009, para. 41]. For instance, addressing challenges under Article 19 of the Statute, some Trial Chambers have found that the trial commences as soon as the decision on the confirmation of charges is filed [Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, 16 June 2009, paras. 49 and 57], whereas other Trial Chambers, addressing requests to amend the charges under Article 61(9), have relied on the language of Article 61(11) to conclude that the commencement of the trial means the true opening of the trial when the opening statements, if any, are made prior to the calling of witnesses [Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC T. Ch. I, 13 December 2007, para. 39]. The latter interpretation has been endorsed to understand the reference to the commencement of trial included in Article 61(9) of the Statute for the withdrawal of charges [Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 18 March 2013, footnote 16].

Required permission by the Trial Chamber
After the commencement of the trial, it is only the Prosecution that can withdraw the charges [Prosecutor v. Ruto and Sang, ICC T. Ch. V, 20 November 2012, para. 4; Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 20 November 2012, para. 7]. Withdrawal of charges after the commencement of the trial is only possible with the permission of the Trial Chamber [Prosecutor v. Lubanga, ICC A. Ch., 13 October 2006, para. 53]. Consequently, after the trial has begun, the two additional powers given to the Trial Chamber under the Rome Statute framework in relation to the charges are to grant or reject an application by the prosecution to withdraw the charges and to modify the legal characterization of the facts under Regulation 55 [Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC T. Ch. I, 13 December 2007, para. 42]. In deciding whether to grant or not a request by the Prosecution to withdraw the charges, the Trial Chamber assesses the Prosecution’s submissions on whether the evidence supports the charges against the accused, and the latter’s attitude towards the request for withdrawal of charges [Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 18 March 2013, para. 11].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(10)

[506] 10. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor.
Termination of the proceedings
Upon ratification of the decision declining to confirm the charges by the Appeals Chamber, where request for leave to appeal has been granted, the decision not to confirm the charges becomes final, and subject to Article 61(8) of the Statute, proceedings related to the case at hand come to an end. Nonetheless, if there remain procedural matters pertaining to the case, triggered in the course of the proceedings, they cannot be left unresolved without judicial intervention from the Chamber, which has been seized of that case [Prosecutor v. Mbarushimana, ICC PT. Ch. II, 3 September 2012, para. 7]. Similarly, the permission of the Trial Chamber to withdraw the charges brings about that i) the arrest or conditions imposed on the accused cease to have effect, although protective measures ordered in respect of victims and witnesses continue after the proceedings have been concluded and the classification of documents as ‘‘ex parte” or “confidential” remains in place until otherwise ordered by the Chamber, and ii) all pending requests or applications by the accused become moot [Prosecutor v. Kenyatta and Muthaura, ICC T. Ch. V, 18 March 2013, paras. 12-13].

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Article 61(11)

[507] 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.
The Trial Chamber takes over
Once the charges are confirmed against a person and having the Pre-Trial Chamber ruled on any leave to appeal the decision confirming the charges, the Pre-Trial Chamber is no longer seized of any matter in the case. Pursuant to Article 61(11) of the Statute, the Trial Chamber shall be responsible for the conduct of subsequent proceedings and may exercise any relevant functions of the Pre-Trial Chamber which is relevant and capable of application in those proceedings [Prosecutor v. Lubanga, Decision on the application for additional means under regulation 83(3) of the Regulations of the Court and on the applications to intervene as amici curiae under rule 103 of the Rules of Procedure and Evidence, ICC PT. Ch. I, 5 June 2007, pp. 3-4].

The Pre-Trial Chamber continues to have authority
As an exception, Article 61(11) qualifies the authority of the Trial Chamber when giving it responsibility for the conduct of the “subsequent proceedings” after the confirmation of the charges, by making it, inter alia, subject to “paragraph 9” which extends the authority of the Pre-Trial Chamber over the charges until the trial has begun [Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC T. Ch. I, 13 December 2007, para. 40].

Functions of Pre-Trial Chambers exercised by Trial Chambers
Once the trial has begun, the Trial Chamber may exercise some functions of the Pre-Trial Chamber pursuant to Article 61(11) of the Statute, such as i) interim release reviews pursuant to Article 60 of the Statute [Prosecutor v. L. Gbagbo, ICC T. Ch. I, 11 November 2014, para. 31(d)], ii) requests for cooperation by an accused person pursuant to Article 59(3)(b) of the Statute [Katanga and Ngudjolo, ICC T. Ch. II, 6 December 2010, footnote 9; Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, 1 July 2011, para. 6; Prosecutor v. Banda and Jerbo, ICC T. Ch. IV, 12 September 2013, para. 3], and iii) requests for provisional release by an accused person pursuant to Article 60(3) of the Statute [Prosecutor v. Bemba, ICC T. Ch. III, 16 August 2011, paras. 45-47].

Referral of the confirmation decision to the Pre-Trial Chamber
Moreover, the Trial Chamber may refer to the Pre-Trial Chamber the validity of the confirmation decision as a “preliminary issue” for the Trial Chamber pursuant to Article 64(4) of the Statute [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, para. 84]. However, in assessing whether the referral of the decision on confirmation of charges to the Pre-Trial Chamber is necessary, the Trial Chamber should not place itself in the position of the Pre-Trial Chamber when it comes to the consideration of the credibility of witnesses and assessment of the evidence presented at the confirmation hearing, and it should not determine that the confirmation decision is invalid merely on the basis that it would have assessed the evidence differently. It is only if it is self-evident that no reasonable Pre-Trial Chamber could have come to the same conclusion in light of subsequent developments that the Trial Chamber could consider a referral of the confirmation decision to the Pre-Trial Chamber [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, paras. 85-86]. It is more efficient, expeditious and appropriate for the Trial Chamber to address the post-confirmation developments and challenges as to the sufficiency of the evidence against the accused and evaluate their impact on the Prosecution’s case during the course of the trial rather than refer the case to the Pre-Trial Chamber for a “fresh” confirmation process, which can only be based on changes in the charges (as opposed to the evidence) between the confirmation of charges and the trial stages [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, para. 111]. In any event, a request for referral of a confirmation decision under Article 64(4) of the Statute is impermissible if it amounts to an attempt to have the Trial Chamber effectively entertain an appeal of the confirmation decision because the Trial Chamber has no appellate jurisdiction over decisions of the Pre-Trial Chamber nor is the proper body to decide on a reconsideration of the evidence and credibility assessments as performed by the Pre-Trial Chamber [Prosecutor v. Kenyatta, ICC T. Ch. V, 26 April 2013, paras. 99-100, 104].

No power to appoint a single judge
It must also be noted that the Court has clarified that although by Article 61(11) of the Statute the Trial Chamber may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in the proceedings, it is impossible to read into this provision a power by which the Trial Chamber may appoint one of the three judges to act as a single judge [Prosecutor v. Lubanga, ICC T. Ch. I, 22 May 2008, para. 14(a)].

Cross-references:
1. Article 64(4)
2. Rules 76, 77, 78, 92(3), 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131 and 185
3. Regulations 52 and 53

Doctrine:

Fabricio Guariglia, "Investigation and Prosecution", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer, The Hague, 1999, pp. 227-237.
Kuniji Shibahara, "Article 61: Confirmation of the Charges Before Trial", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Nomos Verlagsgesellschaft, Baden-Baden, 1999, pp. 783-792.
Michele Marchesiello, Proceedings Before the Pre-Trial Chambers, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1243-1246.
Kuniji Shibahara/William A. Schabas, "Article 61: Confirmation of the Charges Before Trial", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1171-1181.
Leïla Bourguiba, "Article 61: Confirmation des charges avant le procès", in Julian Fernandez/Xavier Pacreau (Eds.), Statut de Rome de la Cour pénale international: Commentaire Article par Article, Pedone, Paris, 2012, pp. 1385/1412.
Enrique Carnero Rojo, "Rome Statute of the International Criminal Court – Article 61: Confirmation of the Charges Before Trial", in Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, pp. 258-273.
Håkan Friman et al., "Charges", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, pp. 397-436.

Author: Enrique Carnero Rojo

Updated: 30 June 2016

Commentary continued - Part 6

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Article 53

Article 53(1)

Article 53(1)(a) - reasonable basis to believe

Article 53(1)(a) - a crime within the jurisdiction of the Court

Article 53(1)(a) - has been or is being committed

Article 53(1)(b)

Article 53(1)(c)

Article 53(1) in fine

Article 53(2)

Article 53(2)(a)

Article 53(2)(b)

Article 53(2)(c)

Article 53(3)

Article 53(4)

Article 54

Article 54(1)(a)

Article 54(1)(b)

Article 54(1)(c)

Article 54(2)

Article 54(3)

Article 54(3)(a)

Article 54(3)(b)

Article 54(3)(c)

Article 54(3)(d)

Article 54(3)(e)

Article 54(3)(f)

Article 55

Article 55(1)

Article 55(2)

Article 56

Article 56(1)(a)

Article 56(1)(b)

Article 56(1)(c)

Article 56(2)

Article 56(3)

Article 56(4)

Article 57

Article 57(1)

Article 57(2)

Article 57(3)(a)

Article 57(3)(b)

Article 57(3)(c)

Article 57(3)(d)

Article 57(3)(e)

Article 58

Article 58(1)

Article 58(1)(a)

Article 58(1)(b)(i)

Article 58(1)(b)(ii)

Article 58(1)(b)(iii)

Article 58(2)

Article 58(3)

Article 58(4)

Article 58(5)

Article 58(6)

Article 58(7)

Article 59

Article 59(1)

Article 59(2)

Article 59(3)

Article 59(4)

Article 59(5)

Article 59(6)

Article 59(7)

Article 60

Article 60(1)

Article 60(2)

Article 60(3)

Article 60(4)

Article 60(5)

Article 61

Article 61(1)

Article 61(2)

Article 61(3)

Article 61(3)(a)

Article 61(3)(b)

Article 61(4)