Previous comments - Part 4

Article 53

[419] Initiation of an investigation
General Remarks
Article 53 ICC Statute becomes relevant once a situation has been triggered, be it on the basis of a referral by the Security Council or a State Party, or on the basis of the proprio motu powers of the Prosecutor. While the title suggests otherwise, Article 53 ICC Statute is not only relevant to the ‘initiation of the investigation’, but also governs the Prosecutor’s decision not to proceed with a prosecution. Furthermore, it provides for the possibility of judicial review of a prosecutorial decision not to proceed and authorises the Prosecutor to review decisions whether to initiate an investigation or prosecution, on the basis of new facts or information.
   It seems to follow from the wording of the first sentence of Article 53 that a principle of legality (Legalitätsprinzip) is incumbent on the ICC Prosecutor (‘shall […] initiate an investigation’). This provision seems to be drafted in mandatory terms, ruling out any arbitrary decision making by the Prosecutor regarding the appropriateness of an investigation (consider e.g. Bergsmo and Kruger, 2008, p. 1068). However, the ICC’s procedural design does not offer a conclusive answer to the question whether the Prosecutor is to be guided by a principle of legality or by a principle of opportunity. Rather does the principle that guides the Prosecutor depend on the factors the Prosecutor should consider in deciding whether or not to initiate investigations into a certain situation or in deciding whether or not to prosecute a certain case (Olásolo, 2003, p. 132; Knoops, 2005, p. 377). The ICC Statute provides for at least some discretion and the Prosecutor is not under an obligation to investigate and prosecute all crimes within the Court’s jurisdiction (Carsten, 2009, pp. 249 and 257). Such discretion can, for example, be found in Article 13 ICC Statute: ‘The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if…’
   Provided that Article 53(1) sets forth the factors the Prosecutor should consider in deciding whether or not to open an investigation, it follows that the investigation ‘proper’ is preceded by a ‘pre-investigation phase’, which serves the purpose of determining whether or not to proceed with an investigation. Likewise, the existence of a phase immediately preceding the investigation proper follows from the existence, under Article 53(1)  of a minimum threshold for the commencement of the investigation proper, as will be discussed below. Furthermore, Article 15 (1) (2) (3) and (6) as well as Rules 48 and 104 ICC RPE confirm the existence of such phase. Meanwhile, only Article 15 (6) explicitly refers to the existence of a ‘preliminary examination’. The preliminary examination commences once the dormant jurisdiction of the Court is triggered and irrespective of the manner in which the jurisdiction of the Court is triggered: either on the basis of information received on crimes or upon a referral (consider e.g. ICC, Policy Paper on Preliminary Examinations, 2013, para. 35, 73). Therefore, while the ICC Statute uses the term ‘preliminary examination’ only if the Prosecutor proceeds on the basis of his or her proprio motu powers, a formal investigation does also not follow automatically in case of a referral. In all instances, the Prosecutor should assess the seriousness of the information received (Rule 104(1) ICC RPE, Article 15(2) ICC Statute). Moreover, irrespective of the triggering mechanism, in assessing whether to proceed with an investigation, the Prosecutor considers the same factors (Article 15(3) ICC Statute juncto Rule 48 ICC RPE and Article 53(1) ICC Statute; ICC, Policy Paper on Preliminary Examinations, 2013, para. 76). What differs is the procedural presumption (De Meester, Karel et al., 2013, p. 182). With regard to referrals, it follows from the ICC Statute that the Prosecutor ‘shall […] initiate an investigation unless he or she determines that there is no reasonable basis to proceed’. Judicial review by the Pre-Trial Chamber is limited to a determination not to proceed, not of an affirmative decision to proceed (Article 53(1) ICC Statute chapeau and in fine). Hence, in such a case, there is a strong presumption in favour of the finding of a ‘reasonable basis’, thereby limiting prosecutorial discretion in case of a referral. In contrast, when the Prosecutor assesses information received, the starting point is that there will be no initiation of the investigation: The Prosecutor needs authorisation by the Pre-Trial Chamber to proceed with an investigation (Article 15(3) ICC Statute). It emerges that irrespective of the triggering mechanism, the pre-investigative phase is –at least in theory- almost identical (Situation in the Republic of Cote d’Ivoire, ICC PT. Ch. III, ICC-02/11-15-Corr, 5 October 2011, para. 24).
   Neither the Statute nor the RPE regulate in detail the method for the conduct of the preliminary examination. However, Rule 104(2) ICC RPE, which details the evaluation of information by the Prosecutor under Article 53(1), provides the Prosecutor with some limited investigative powers (as does Article 15(2) ICC Statute). The Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organisations, or other reliable sources and he or she may receive written or oral testimony at the seat of the Court. It is stipulated that the procedural rules on the recording of the questioning during the investigation apply mutatis mutandis (Rules 47104(2)111 and 112 ICC RPE). Other investigative powers are not mentioned and are only at the Prosecutor’s disposal after the start of the investigation proper. Furthermore, no time frame has been included in the ICC Statute for the conduct of the preliminary examination. Nevertheless, Pre-Trial Chamber III held that a ‘reasonable time’ criterion applies to the preliminary examination of a situation pursuant to Article 53 (1) ICC Statute and Rule 104 ICC RPE (Situation in the Central African Republic, ICC PT. Ch. III, ICC-01/05-6, 30 November 2006, p. 4). This criterion derives from Rule 105 (1) ICC RPE, according to which the Prosecutor should ‘promptly’ inform in writing the State which referred the situation, when deciding not to commence an investigation. However, “the timing and length of preliminary examination activities will necessarily vary based on the situation.” For example, since the preliminary examination process with regard to the situation in Columbia included the monitoring of national proceedings, the preliminary examination process will necessarily be longer. Consequently, some flexibility should be built into the timeframe (OTP, Policy Paper on Preliminary Examinations, 2013, para. 89).

Author: Karel De Meester

Updated: 30 June 2016

Article 53(1)

[420] 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute.
‘reasonable basis to proceed’
It follows from the wording of the chapeau of Article 53 that the threshold to start an investigation is the presence of a ‘reasonable basis to proceed’. The same threshold is to be found in Article 15 (3), (4) and (6) ICC Statute and in Rule 48 ICC RPE, with regard to proprio motu investigations. A contextual interpretation clarifies that similar considerations underlie the ‘reasonable basis to proceed’ standard in Articles 15 and 53. More precisely, it follows from Rule 48 ICC RPE that in determining whether there exists a ‘reasonable basis to proceed’ under Article 15(3) ICC Statute, ‘the Prosecutor shall consider the factors set out in Article 53, paragraph 1 (a) to (c)’.
   This was acknowledged by Pre-Trial Chamber II, when it held that it would be illogical to dissociate the ‘reasonable basis to proceed’ standard in Article 15(3) and Article 53(1) (with respect to the Prosecutor) from the threshold provided for under Article 15(4) ICC Statute (with respect to the Pre-Trial Chamber) (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, para. 21). The Pre-Trial Chamber emphasised that these standards are used in the same or related Articles and that they share the same purpose: the opening of an investigation (ibid., para. 21). Furthermore, the travaux préparatoires reveal that the drafters intended to use the same standard in the different provisions and wanted to establish the link between Article 15 and 53 (ibid., para. 22 – 23). Among other, this is evidenced by the nota bene which was included in draft Article 12 ICC Statute (“The terms "sufficient basis" used in this Article (if retained) and "reasonable basis" in Article 54, paragraph 1, should be harmonized” (see Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum: Draft Statute for the International Criminal Court and Draft Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, p. 37)).
   A contextual interpretation of the ‘reasonable basis to proceed’ standard further clarifies that the ‘reasonable basis to proceed’ standard in the chapeau of Article 53(1) requires less certainty than the ‘sufficient basis for a prosecution’ standard, which is found in Article 53(2) ICC Statute. Likewise, the standard is lower than the ‘reasonable grounds to believe’ prerequisite for the issuance of a warrant of arrest or the existence of ‘substantial grounds to believe’ as required for the confirmation of the charges. For the fulfillment of the two latter standards, evidence or information is required that is directed to the individual, rather than to a situation or to events (See Ventura, 2013, p. 67). One commentator refers to “the first step of a stairway which becomes stricter with every step taken towards trial and requires more profound evidence with each level” (Stegmiller, 2008, p. 322; Stegmiller, 2011, p. 253).
   With regard to Article 15(4) ICC Statute, ICC Pre-Trial Chamber III observed that the purpose of the ‘reasonable basis to proceed’ standard lies where it prevents “unwarranted, frivolous, or politically motivated investigations” (Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 21). On the basis of the travaux préparatoires, it has been argued that the identical standard in Article 53(1) serves the same purpose and was inserted “to prevent any abuse of the process not only by the Prosecutor but also by any of the other triggering parties” (Fernández de Gurmendi, 1999, p. 182).

Cross-references:
Regulation 38

Author:
Karel De Meester

Updated: 30 June 2016

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

[421] (a) The information available to the Prosecutor provides a reasonable basis to believe that
Subparagraph (1)(a) is concerned with jurisdiction. On the basis of the parameters included in this first subparagraph the ICC Prosecutor decided not to proceed with an investigation in the Venezuela situation and the Palestine situation (ICC, Annex to Update on Communications Received by the Office of the Prosecutor: Venezuela Response, 9 February 2006, p. 4; OTP: Situation in Palestine, 3 April 2012).
   In subparagraph (1)(a), an additional threshold is included, ‘reasonable basis to believe’. It is unclear how the ‘reasonable basis to proceed’ requirement in the chapeau of Article 53(1) ICC Statute and the ‘reasonable basis to believe’ threshold under Article 53 (1)(a) mutually relate. A textual interpretation of Article 53(1) hints that a ‘reasonable basis to proceed’ exists once the different criteria of subparagraphs (a) – (c) are met. Such understanding has been confirmed by Pre-Trial Chamber II, which held that the ‘reasonable basis to believe’ test in Article 53 (1)(a) is subsumed by the ‘reasonable basis to proceed’ standard referred to in the opening clause of Article 53 (1) of the Statute, since the former is only one element of the latter (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, para. 26). Hence, the ‘reasonable basis to proceed’ requirement will be met when the requirements under Article 53 (1)(a) – (c) ICC Statute are fulfilled. This conclusion is supported by the travaux préparatoires (Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum: Draft Statute for the International Criminal Court and Draft Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, p. 75). Pre-Trial Chamber II further held that any definition of the ‘reasonable basis to believe’ standard should reflect “the specific purpose underlying this procedure” (ibid., para. 32, 35). Similar to the purpose of the ‘reasonable basis to proceed’ threshold in the chapeau of Article 53 (1),  its purpose is “to prevent the Court from proceeding with unwarranted, frivolous, or politically motivated investigations that could have a negative effect on [the Court’s] credibility” (ibid., para. 32). Bearing in mind that this threshold is the lowest to be found in the ICC Statute, “the information available to the Prosecutor does not have to be ‘comprehensive’ or ‘conclusive’” (ibid., para. 27). This is to be understood in light of the limited powers of the Prosecutor, prior to the start of the investigation proper. Furthermore, the Pre-Trial Chamber observed that the ECtHR’s ‘reasonable suspicion’ threshold, upon which the Court’s case law relies for the interpretation of the ‘reasonable grounds to believe’ standard for the issuance of an arrest warrant under Article 58, is not suitable for the interpretation of Article 53 (1)(a) ICC Statute. The standard under Article 53 (1)(a) “was not designed to determine whether a particular person was involved in the commission of a crime within the jurisdiction of the Court, which may justify his arrest” (ibid., para. 32). Information “need not point towards only one conclusion” (ibid., para. 34). The standard implies that “the Chamber must be satisfied that there is a sensible or reasonable justification for a belief that a crime falling within the Court’s jurisdiction ‘has been or is being committed’” (ibid., para. 35). However, the Pre-Trial Chamber failed to clarify what the difference between a reasonable basis to proceed in the chapeau of Article 53 (1) and a reasonable basis to believe in Article 53 (1)(a) actually is. The OTP Draft Regulations defined this standard as necessitating that ‘the information available to the Chief Prosecutor contains indications that make it seem possible that crimes within the jurisdiction of the Court have been or are being committed’. This will be the case “if there is a realistic prospect that the investigation will produce evidence that will lead to a prima facie case against the potential accused” or “if there is a clear indication that a person has participated in a crime within the jurisdiction of the Court” (Regulation 12.3 of the Draft Regulations of the OTP, fn. 80). However, this interpretation was not included in the final version of the Regulations of the OTP. See also Situation in the Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, 3 October 2011, para. 23.

Author: Karel De Meester

Updated: 30 June 2016

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

[422] a crime within the jurisdiction of the Court 
The following part of the wording of this subparagraph (‘a crime within the jurisdiction of the Court’) does not cause a great deal of difficulty. It implies an examination of all necessary jurisdictional requirements (subject-matter, temporal, personal and territorial) and is devoid of any discretional traits.

Author: Karel De Meester

Updated: 30 June 2016

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

[423] has been or is being committed;
The last part of this provision (‘has been or is being committed’) seems to exclude any basis for proactive investigations by the Court. Proactive investigative efforts precede the commission of the crime. Hence, as an example, the situation when a crime ‘is about to be committed’ seems excluded from the realm of the provision. Prior to the moment in time when a crime within the jurisdiction of the Court is or is being committed, there is no possibility to proceed to the investigation proper.

Author: Karel De Meester

Updated: 30 June 2016

Article 53(1)(b)

[424] (b) The case is or would be admissible under Article 17
The second subparagraph of Article 53 (1) refers to admissibility. It encompasses both complementarity and gravity (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, para. 52; Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 192 – 206). The admissibility assessment mainly refers to “the scenarios or conditions on the basis of which the court shall refrain from exercising its recognized jurisdiction over a given situation or case” (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, para. 40). Under the ICC Statute, admissibility attaches to different stages, starting with a ‘situation’ up to a concrete ‘case’ (ibid., para. 41). While the wording of Article 53 (1)(b) suggests that the admissibility assessment under this subparagraph relates to ‘cases’, it is evident from a contextual reading that this assessment, in principle, relates to ‘situations’, rather than specific ‘cases’ (ibid., para. 44-46). This interpretation is confirmed by the plain reading of Article 13(a), 14(1), 15(5) and (6) and 18(1) ICC Statute. In particular, the wording of Article 53 (1)(b) ICC Statute points to an assessment at a more general level than that of a particular ‘case’ (‘or would be admissible’).
   Pre-Trial Chamber II offered several explanations for the peculiar wording of Article 53 (1)(b) ICC Statute. Firstly, on the basis of the travaux préparatoires of the ICC Statute, it appears that ‘case’ was used in all drafts of Article 17 at the Preparatory Committee. At the Rome conference, there was a ‘prevailing trend’ to not reopen the ‘substance’ of the admissibility provisions drafted by the Preparatory Committee. Changing the terminology in Article 53 would have required revisiting the terminology of Article 17; hence, it was left unaltered. However, Pre-Trial Chamber II preferred a different explanation and held that the reference to ‘case’ was advertently left in all provisions on admissibility, leaving it up to the Court “to harmonize the meaning according to the different stages of the proceedings” (ibid., para. 46-47). Thus, it is for the Chamber to construe the meaning of a ‘case’ within the context where it is applied. In doing so, the Pre-Trial Chamber held that since “it is not possible to have a concrete case involving an identified suspect for the purpose of prosecution, prior to the commencement of the investigation, the admissibility assessment at this stage actually refers to the admissibility of one or more potential cases within the context of a situation” (ibid., para. 48; Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 190). The “admissibility at the situation phase should be assessed against certain criteria defining a “potential case” such as (i) the groups of persons involved that are likely to be the focus of an investigation for the purpose of shaping the future case(s); and (ii) the crimes within the jurisdiction of the Court allegedly committed during the incidents that are likely to be the focus of an investigation for the purpose of shaping the future case(s)” (ibid., para. 191; 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, para. 50 and 182). This selection is preliminary and not binding for future admissibility assessments (ibid., para. 50).
   Admissibility encompasses the three grounds of inadmissibility under Article 17(1) (complementarity, gravity and ne bis in idem), which are exhaustive in nature. At this stage, the admissibility assessment firstly entails “an examination as to whether the relevant State(s) is/are conducting or has/have conducted national proceedings in relation to the groups of persons and the crimes allegedly committed during those incidents, which together would likely form the object of the Court’s investigation.” Secondly, if the answer to this question is negative, it includes an  assessment of whether the gravity threshold is met or not (ibid., para. 52). It is clear that the admissibility determination for the purpose of proceedings relating to the initiation of an investigation (at the ‘situation stage’) differs from the admissibility determination of a concrete case (at the ‘case stage’). At the case stage, the Court’s jurisprudence has held that national proceedings must encompass both the same person and the same conduct (specificity test) (consider e.g. Lubanga, ICC PT. Ch. I, ICC-01/04-01/06-20-Anx2, 10 February 2006, para. 37). Contrastly, at the moment of the commencement of the investigation into a situation, “the contours of the likely case will often be relatively vague because the investigations of the Prosecutor are at their initial stages” (William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC A. Ch., ICC-01/09-01/11-307, 30 August 2011, para. 39; Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC A. Ch., ICC-01/09-02/11-274, 30 August 2011, para. 38). “Often, no individual suspects will have been identified at this stage, nor will the exact conduct nor its legal classification be clear” (ibid., para. 38). Overall, the admissibility check is more general in nature and relates to the overall conduct. For example, in its decision authorising a proprio motu investigation in Kenya, Pre-Trial Chamber II concluded that there were no national investigations regarding senior business and political leaders on the serious criminal incidents which are likely to be the focus of the Prosecutor’s 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, para. 187). In a similar vein, in authorising a proprio motu investigation in the Republic of Côte d’Ivoire, Pre-Trial Chamber III found that Côte d’Ivoire nor any other State having jurisdiction was conducting or had conducted national proceedings against individuals or crimes that are likely to constitute the Court’s future case(s) (Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 206).
   On the basis of the second part of the admissibility assessment, gravity, the Prosecutor decided not to proceed with an investigation into the situation in Iraq and decided not to proceed with an investigation into the situation with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip (ICC, Annex to Update on Communications Received by the Office of the Prosecutor: Iraq Response, 9 February 2006; ICC, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014). It was also on the basis of this parameter that the LRA, and not the UPDF, was selected for investigation in the situation in Uganda (OTP, Statement by Luis Moreno-Ocampo, ICC-OTP-20051014-109, 14 October 2005, p. 3). Also gravity should be assessed in a general sense, on the basis of ‘potential cases’ (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, para. 58; Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 202). Such assessment should be general in nature and compatible with the pre-investigative stage (ibid., para. 203; 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, para. 60).
   According to Pre-Trial Chambers II and III, at the Article 53(1) stage of proceedings, the gravity assessment entails a generic assessment of whether the individuals or groups of persons that are likely to be the object of an investigation capture those who may bear the greatest responsibility for the alleged crimes committed (ibid., para. 60; Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 204). Besides, with regard to the crimes committed during the incidents that are likely to be the focus of an investigation for the purpose of future cases, the jurisprudence refers to the interplay between crimes and their context, entailing that the gravity of the crimes will be assessed in the context of the incidents that are likely to be the object of the 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, para. 61). This assessment may include quantitative and qualitative parameters, including factors such as (i) the scale of the alleged crimes (including geographic and temporal intensity), (ii) the nature of the unlawful behaviour or of the crimes allegedly committed, (iii) the means employed for executing the crimes (manner of their commission) and (iv) the impact of the crimes and the harm caused to victims and their families (ibid., para. 62). Also, any aggravating circumstances may be considered (Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, para. 204).
   Several commentators have suggested that situational gravity in Article 53 (1)(b), encompasses a statutory threshold, below which the Court cannot initiate an investigation into a situation. Hence, this term is to be construed strictly legally (consider e.g. deGuzman, 2009, p. 1403; Stegmiller, 2011, p. 332). It follows that the gravity assessment under Article 53 (1) (b) is limited to the question whether the gravity threshold is met, according to clear and pre-set criteria. So construed, it does not allow the Prosecutor to select between different situations (deGuzman, 2009, p. 1432). Nevertheless, the Prosecutor interpreted the gravity consideration in Article 53 (1)(b) as allowing it to compare different situations and not to proprio motu initiate an investigation into the situation of British war crimes in Iraq (ICC, Annex to Update on Communications Received by the Office of the Prosecutor: Venezuela Response, 9 February 2006, pp. 8-9). Similarly, in deciding to pursue crimes committed by the LRA and not those allegedly committed by government forces in the situation in Uganda, the ICC Prosecutor compared the gravity of the crimes committed (OTP, Statement by Luis Moreno-Ocampo, 14 October 2005, p. 3).

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

  1. 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.
  2. 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.
  3. Margaret M. deGuzman, "Gravity and the Legitimacy of the International Criminal Court", Fordham International Law Journal, vol. 32, 2009, pp. 1403, 1432.
  4. 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.
  5. 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.
  6. 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.
  7. Florian Razesberger , The International Criminal Court: The Principle of Complementarity, Peter Lang, Frankfurt am Main, 2006, p. 108.
  8. Christopher Safferling, International Criminal Procedure, Oxford University Press, Oxford, 2012, p. 94.
  9. William A. Schabas, An Introduction to the International Criminal Court, Third Edition, Cambridge University Press, Cambridge, 2007, p. 245.
  10. 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.
  11. Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Duncker & Humblot GmbH, Berlin, 2011, pp. 119-120; 253, 332, 419.
  12. 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.
  13. 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.
  14. 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.
  15. Philippa Webb, "The ICC Prosecutor’s Discretion not to Proceed in the 'Interests of Justice'”, Criminal Law Quarterly, vol. 50, 2005, p. 327.
  16. 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

Article 54(1)(c)

[436] (c) Fully respect the rights of persons arising under this Statute.
Finally, under paragraph (1), the Prosecutor is to respect the rights of all persons under the ICC Statute. In the Kenyatta case, Trial Chamber V found that the Prosecutor failed to fully respect the rights of persons under the Statute, insofar as it failed to conduct a full and thorough investigation of the case against the accused during its pre-confirmation investigation (Prosecutor v. Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11-728, T. Ch. V, 26 April 2013, para. 123; and the Concurring Opinion of Judge Christine Van den Wyngaert, para. 5). Likewise, Article 54(1)(c) will be breached in case confidentiality agreements concluded by the Prosecution under Article 54(3)(e) prevent it from honouring its disclosure obligations under Article 67(2) ICC Statute and Rule 77 of the RPE (Prosecutor v. Lubanga, ICC A. Ch., ICC-01/04-01/06-1486 (OA 13), 21 October 2008, paras. 42-43).

Author:
Karel De Meester

Updated: 30 June 2016

Article 54(2)

[437] 2. The Prosecutor may conduct investigations on the territory of a State:
(a) In accordance with the provisions of Part 9; or
(b) As authorized by the Pre-Trial Chamber under Article 57, paragraph 3 (d).
The second paragraph of Article 54 sets out the requirements for the Prosecutor to conduct investigations directly on the territory of a State. The importance of this possibility for the Prosecutor to independently gather evidence on the territory of States is easily understood. Nevertheless, both limbs of this paragraph put significant limitations on the ability of the Prosecutor to gather evidence and information autonomously and independently on the territory of States. Article 54(2) of the Statute only allows the Prosecutor to conduct on-site investigations in two scenarios, to know ‘in accordance with Part 9’ or ‘under Article 57, paragraph 3 (d)’. Firstly, Article 99(1) of the ICC Statute on the execution of requests for assistance provides for the general rule that the Prosecutor will have to ensure cooperation of the State concerned and that a request for assistance will be sent to the requested State. This provision allows the requested State to determine whether or not the Prosecutor can be present and assist in the execution of the investigative act on its territory. An exception is provided for under Article 99(4), which allows the Prosecutor to exceptionally execute such requests directly on the territory of a State. However, this course of action is limited to situations where it is ‘without prejudice to other Articles in Part 9’, where it ‘is necessary for the successful execution of a request’, and where the request ‘can be executed without any compulsory measures’. Several examples of such non-compulsory measures are provided for: the interview of or taking evidence from a person on a voluntary basis and the examination without modification of a public site or other public place. It is clear that the above requirements substantially limit the prospects for the Prosecutor to conduct on-site investigations. For example, Article 99(4) does not allow the Prosecutor to conduct search and seizure operations directly on the territory of a State, because these operations qualify as coercive measures. This contrasts with the jurisprudence of the ad hoc tribunals, which allows for the direct enforcement of coercive acts on the territory of States, without directing a request for legal assistance to the national authorities concerned. For example, an ICTY Trial Chamber held in the Kordić and Čerkez case that the execution of coercive measures by the Prosecutor, encompassing the taking of enforcement action, directly on the territory of Bosnia Herzegovina, was “perfectly within the powers of the Prosecution provided for in the Statute” (Prosecutor v. Kordić and Čerkez, ICTY T. Ch. III, 25 June 1999, p. 6; consider also Prosecutor v. Kordić and Čerkez, (Case No. IT-95-14/2), ICTY T. Ch. III, Transcript, 31 May 1999, pp. 2975 – 3045; Prosecutor Naletilić and Martinović, ICTY A. Ch., 3 May 2006, para. 238).
   The second limb allows for the conduct of investigative acts directly on the territory of a State, when this has been authorised by the Pre-Trial Chamber under Article 57(3)(d). However, this avenue is limited to ‘failed State’ scenarios. Prior to authorising the conduct of investigations directly under Article 57(3)(d), the Pre-Trial Chamber should determine 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’. In contrast to Article 99(4), under Article 57(3)(d) the Pre-Trial Chamber may authorise the Prosecutor to execute coercive measures directly on the territory of a State. In such a case, the discharge of the Court’s mandate and effective prosecution justify the power of the Prosecutor to exercise on-site investigations including forcible measures (Sluiter, 2002, p. 309; Guariglia et al., 2008, pp. 1128-1129).

Author: Karel De Meester

Updated: 30 June 2016

Article 54(3)

[438] 3. The Prosecutor may:
The third paragraph of Article 54 contains six subparagraphs. They detail the necessary powers for the Prosecutor to fulfil its responsibility, under Article 42(1) ICC Statute, to conduct investigations as well as the measures he or she can take to guarantee their efficacy.

Author: Karel De Meester

Updated: 30 June 2016

Article 54(3)(a)

[439] (a) Collect and examine evidence;
The power to ‘collect and examine evidence’ is broadly formulated. It may include a wide array of possible investigative measures. Nevertheless, these powers should be understood in light of the limitations under paragraph 2 to the possibility for the Prosecutor to directly execute investigative acts on the territory of States.

Author: Karel De Meester

Updated: 30 June 2016

Article 54(3)(b)

[440] (b) Request the presence of and question persons being investigated, victims and witnesses;
Under subparagraph (b), the Prosecutor is allowed to ‘request the presence of and question persons being investigated, victims and witnesses’ in the course of the investigation. It follows from the wording of Article 54(3)(b) (‘request the presence’) that this prosecutorial power is limited to taking statements on a voluntary basis. Hence, it does not offer a basis for a witness to be compelled to be interviewed by the Prosecutor in the course of the investigation. While the ICTY and the ICTR Prosecutor also lack the power to compel an unwilling party to submit to a pre-trial interview, the Trial Chamber may subpoena an unwilling person to attend at a nominated place and time in order to be interviewed (Consider e.g. Prosecutor v. Krksić, ICTY A. Ch., 30 July 2003, para. 15; Prosecutor v. Krstić, ICTY A. Ch., 1 July 2003, paras. 10, 17 (Judge Shahabuddeen dissenting); Prosecutor v. Halilović, ICTY A. Ch., 21 June 2004, para. 5). Trial Chamber I held that Article 54(3)(a) does not provide a basis for the substantive preparation of witnesses prior to trial (Prosecutor v. Lubanga, ICC T. Ch. I, ICC-01/04-01/06-1049, 30 November 2007, para. 36).
   A detailed regulation on the recording of suspect interviews and of interviews with victims and witnesses is laid down in Rules 112 and 111 of the ICC RPE respectively. Pursuant to Article 93 (1)(b) and (c) of the ICC Statute, States Parties are under an obligation to comply with requests from the ICC to provide assistance to the taking of evidence, including testimony under oath and to the questioning of persons investigated or prosecuted. In such a case, Article 99(1) ICC Statute leaves broad discretion for the Prosecution to participate in the questioning of the suspect or accused person by the requested State. Moreover, in case this is necessary for the successful execution of the request and where the suspect participates in the interview on a voluntary basis, the Prosecutor may him or herself interview a suspect on the territory of a State party without further state assistance. The power of the Prosecutor to receive written or oral testimony at the seat of the Court in the course of the preliminary examination, is provided for under Article 15(2) ICC Statute and Rule 104(2) ICC RPE.

Author: Karel De Meester

Updated: 30 June 2016

Article 54(3)(c)

[441] (c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate;
Article 54(3)(c) vests the Prosecutor with the necessary power to seek cooperation from States and other international actors.

Author: Karel De Meester

Updated: 30 June 2016

Article 54(3)(d)

[442] (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person;
Additionally, the Prosecutor may ‘[e]nter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person’ (Article 54(3)(d)). This allows States Parties to supplement and go beyond their obligations under Part 9 and for States and international actors to cooperate with the Prosecutor on a voluntary basis. On this basis, the Office of the Prosecutor has concluded agreements with a number of States, including arrangements of modalities for the conduct of operations in territories where the Office of the Prosecutor is carrying out its investigative activities (see Report of the International Criminal Court for 2005–2006, UN Doc. A/61/217, 3 August 2006, para. 52; OTP, Report on the Activities Performed During the first three Years (June 2003 – June 2006), 12 September 2006, p. 5). Within the Office of the Prosecutor, the Jurisdiction, Complementarity and Cooperation Division is charged with building a network for international cooperation, while the Investigation Division is responsible for the implementation (OTP, Strategic plan June 2012 - 2015, 11 October 2013, pp. 6, 16). It follows from Regulation 107(2) of the Regulations of the Court that the Prosecutor has to inform the Presidency of any arrangement or agreement it intends to negotiate, except when this would be ‘inappropriate for reasons of confidentiality’. Moreover, according to Regulation 107(1), the Prosecutor’s does not have the authority to negotiate arrangements or agreements with a State not party or any international organisation, when these set out a framework regarding matters which fall within the competency of more than one organ of the Court. In such a case, it is only for the President to conclude such agreements.

Cross-reference:
Regulation 107 

Author: Karel De Meester

Updated: 30 June 2016

Article 54(3)(e)

[443] (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and
More controversial then is Article 54(3)(e), which allows the Prosecutor to conclude confidentiality agreements and to ‘[a]gree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents’. The provision is to be read together with Rule 82 of the RPE. Among others, it prevents the Prosecutor from subsequently introducing materials or information received under Article 54(3)(e) into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused. It is clear that such arrangements or agreements constitute an exception to the Prosecutor’s disclosure obligations. When the Prosecutor accepts material on the condition of confidentiality pursuant to Article 54(3)(e), this may create tensions with the Prosecutor’s disclosure obligations. The Prosecutor may be caught in a position where he either is unable to disclose materials he has to disclose, or breaches the agreement with the information provider (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486 (OA 13), 21 October 2008, para. 43).
   In its investigations into the DRC situation, the Prosecutor made broad use of confidentiality agreements pursuant to Article 54 (3) (e) ICC Statute (around fifty percent of the documents gathered in the DRC: see Prosecutor v. Lubanga, ICC T. Ch. I, ICC-01/04-01/06-T52, 1 October 2007, p. 13). This posed challenges to the conduct of several cases before the Court, including the Lubanga case, the Kantanga and Ndgujolo case as well as the Ntaganda case. This even led the Trial Chamber to stay the proceedings in Lubanga after the Prosecutor appeared unable to disclose more than 200 documents containing potentially exculpatory materials or information that is potentially material to the preparation of the Defence (Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, 13 June 2008). The Prosecutor was unable to disclose these documents to the Defence because they were received on condition of confidentiality and the information providers did not subsequently agree to have confidentiality lifted. The Prosecutor was also unable to supply the majority of these documents to the Trial Chamber, while others were only supplied in redacted form. Most of this confidential information had been obtained from the United Nations. These materials included evidence that tended to suggest that the accused had acted in self-defence, that he was acting under duress or compulsion, that he had made efforts to demobilise child soldiers and that he had insufficient control over the persons who allegedly perpetrated the crimes he was charged for (ibid., para. 22). The Appeals Chamber held that it follows from a textual and a contextual interpretation of Article 54(3)(e) that this provision may only be used for the purpose of generating new evidence (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486 (OA 13), 21 October 2008, paras. 41, 55; consider also Prosecutor v. Lubanga, ICC T. Ch. I, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, 13 June 2008, paras. 71 - 72). It can only be used as a stepping stone for gathering further evidence. Hence, “whenever the Prosecutor relies on Article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial” (Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486 (OA 13), 21 October 2008, paras. 44, 55). In particular, the Appeals Chamber expressed its concern that at the time the material was accepted, the Prosecutor agreed that he would also not disclose the materials to the Chambers, thereby preventing the Chamber from assessing whether a fair trial was still possible notwithstanding the non-disclosure of certain documents. The final assessment whether or not material gathered pursuant to Article 54(3)(e) has to be disclosed pursuant to Article 67(2) ICC Statute, had it not been obtained on the condition of confidentiality, will have to be carried out by the Trial Chamber. Therefore, the Trial Chamber should receive the material (ibid., para. 2).
   Whenever a conflict arises between the Prosecutor’s disclosure obligations under Article 67(2) and Article 54(3)(e)  the Trial Chamber has to respect the confidentiality agreement concluded by the Prosecutor and cannot order disclosure without first obtaining the prior consent by the information provider (Article 64(6)(c) ICC Statute; Rule 81(3) ICC RPE). Rather will the Chamber have to decide whether the Prosecutor would have had to disclose the material, had it not been obtained under a confidentiality arrangement. If this is the case, the Prosecutor should seek the consent of the information provider. If the provider still does not consent to disclosure, it is for the Trial Chamber to determine whether, and which counter-balancing measures can be taken to ensure that the rights of the accused are protected and the trial is fair (ibid., par 48). The Appeals Chamber held that, “in particular if only small numbers of documents are concerned”, the tension between confidentiality and the right to a fair trial may be resolved by other means, such as identifying new, similar exculpatory material, providing the material in summarised form, stipulating the relevant facts, or amending or withdrawing the charges (ibid., paras. 44 and 28; consider also, e.g., Prosecutor v. Ntaganda, ICC PT. Ch. II, ICC-01/04-02/06-247, 6 February 2014, paras. 14-15; Prosecutor v. Abakaer Nourain and Jerbo Jamus, ICC T. Ch. IV, ICC-02/05-03/09-442-Red2, 21 June 2013, para. 12).
   From the foregoing, it follows that the Prosecutor should “conduct itself with extreme care” in relying on Article 54(3)(e) (Prosecutor v. Katanga and Ngudjolo Chui, PT. Ch. I, Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material for the Defence’s Preparation for the Confirmation Hearing, ICC-01/04-01/07-621, 20 June 2008, paras. 36, 38 - 39). The Prosecutor has since October 2006 sought to reduce its extensive reliance on confidentiality agreements under Article 54(3)(e) ICC Statute to gather evidence (see ibid., para. 51; OTP, Prosecutorial Strategy 2009 – 2012, 1 February 2010, para. 34 (b)).

Cross-reference:
Rule 82

Author:
Karel De Meester

Updated: 30 June 2016

Article 54(3)(f)

[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:

  1. 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.
  2. 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.
  3. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
  6. 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.
  7. 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.
  8. 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.   
  9. 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.   
  10. 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

Article 56(1)(a)

[449] 1. (a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.
This subparagraph grants the Pre-Trial Chamber a role where the Prosecution intends to perform a"unique investigative opportunity", i.e. collect and test evidence that may not be available at trial.
   The provision appears to focus on a scenario in which the case stage has already been reached, as evidenced in particular by the reference to the Prosecutor's obligation to provide relevant information to "the person who has been arrested or has appeared in response to a summons" in connection with the relevant investigation (Article 56, paragraph 1(c)). However, the possibility that in special circumstances Article 56 may also be applied prior to the case stage, as recognised by the jurisprudence of Pre-Trial Chamber I in Situation in the Democratic Republic of the Congo, Decision on the Prosecutor's Request for Measures under Article 56, 26 April 2005, cannot be discounted. Further, participation of victims in the context of the procedure set out in the said Article during the investigation of a situation may therefore be permitted, see Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, ICC PT. Ch. II, Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 ICC-02/04-01/05-252, 10 August 2007, para. 100.
    In Situation in the Democratic Republic of the Congo, Decision to Hold Consultation under Rule 114, 21 April 2005, PTC I considered that there is a unique investigative opportunity within the terms of Article 56 1(a) of the Statute and decided to convene an ex parte consultation with the Prosecutor in order to determine the measures to be taken and the modalities of their implementation. 
   Rule 114 provides that upon being informed by the Prosecutor, the Pre-Trial Chamber shall hold consultations with the Prosecutor and with the person who has been arrested or who has appeared before the Court pursuant to summons and his or her counsel, in order to determine the measures to be taken and the modalities of their implementation.

Cross-references:
Rule 114

Author: Mark Klamberg

Updated: 30 June 2016

Article 56(1)(b)

[450] (b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.
It is for the Prosecuton to decide which investigative acts ought to be carried out which makes Article 56 different from an investigative judge.
   The Pre-Trial Chamber's role pursuant to this paragraph is to "take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence" for example the production of records of forensic examinations and the appointment of an ad hoc counsel for the defence, see Situation in the Democratic Republic of the Congo, ICC PT. Ch. IDecision on the Prosecutor's Request for Measures under Article 56, 26 April 2005. See also Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Prosecutor's Communication to the Pre-Trial Chamber, 1 June 2005, where PTC I decided to approve the NFI's Investigation Plan.

Author: Mark Klamberg

Updated: 30 June 2016

Article 56(1)(c)

[451] (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter.
Since the purpose of Article 56 is to protect the rights of the person who has been arrested or who appeared before the Court in response to a summons it follows that the Prosecution to provide relevant information regarding investigative acts taken.
   The paragraph allows the Pre-Trial Chamber to order otherwise, but this should only happen on an exceptional basis taking the interests of the defence into account.

Author: Mark Klamberg

Updated: 30 June 2016

Article 56(2)

[452] 2. The measures referred to in paragraph 1 (b) may include:
(a) Making recommendations or orders regarding procedures to be followed;
(b) Directing that a record be made of the proceedings;
(c) Appointing an expert to assist;
(d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence;
(e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons;
(f) Taking such other action as may be necessary to collect or preserve evidence.
Paragraph 2 contains a non-exhaustive list of measures that the Pre-Trial Chamber may take in relation to an unique investigative opportunity. Other potential measures are added in Rule 114(1) which allows the Pre-Trial Chamber to determine on measures to ensure the right of the "suspect" under Article 67(1)(b) to communicate with counsel is protected.
   Rule 112(5) provides that the Pre-Trial Chamber may, in pursuance of Article 56(2), order that the questioning of persons shall be audio- or video-recorded in accordance with the procedure set out in Rule 112.
   The decision of the Pre-Trial Chamber in Situation in the Democratic Republic of the Congo, Decision on the Prosecutor's Request for Measures under Article 56, 26 April 2005 illustrates which measures can be taken, including the production of records of forensic examinations and the appointment of an ad hoc counsel for the defence.
   The catch-all clause in sub-pragraph (f) uses the words "such other action" which would suggest that these measures are similar to the measusres listed under (a)-(e). Guariglia and Hochmayr argues that the sub-paragrah can not be used to expand the powers of the Pre-Trial Chamber, for example to collect evidence itself (p. 1113).

Cross-references:
Rule 114

Author: Mark Klamberg

Updated: 30 June 2016

Article 56(3)

[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:

  1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 690-694. 
  2. 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.

Author: Mark Klamberg

Updated: 30 June 2016

Article 57

[455] Functions and powers of the Pre-Trial Chamber
General Remarks
The Pre-Trial Chamber is established by Article 39. The Pre-Trial Chamber is a compromise between different legal traditions. Judicial overview at the investigatory stage is a feauture of the civil tradition, but the Pre-Trial Chamber is not an investigative chamber. It is not responsible for directing the investigations of the Prosecutor. In Ruto et al., Decision on the "Request by the Victims' Representative for authorisation to make a further written submission on the views and concerns of the victims", ICC-01/09-01/11-371, 9 December 2011, para. 16, the Pre-Trial Chamber stated that "the power to conduct investigations concerning the commission of crimes and/or to direct the Prosecutor to investigate certain offences or persons do not fall among the prerogatives of the Pre-Trial Chamber as reflected in the said provision of the Statute. Pursuant to the law the power of the Pre-Trial Chamber is to evaluate, in light of the standards of proof envisaged in the Statute, the results of such investigations, namely the evidence collected and placed before the Chamber".
   In addition to Article 57, there are sevaral other provisions in the Rome Statute that concern the powers of the Pre-Trial Chamber: Articles 15(3), 18(2), 19(6), 53(3), 56, 58, 59, 60, 61, 64(4) and 72. Further, Regulation 46(2) provides that The Pre-Trial Chamber shall be responsible for any matter, request or information arising out of the situation assigned to it, save that, at the request of a Presiding Judge of a Pre-Trial Chamber, the President of the Pre-Trial Division may decide to assign a matter, request or information arising out of that situation to another Pre-Trial Chamber in the interests of the administration of justice.

Author: Mark Klamberg

Updated: 30 June 2016

Article 57(1)

[456] 1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this Article.
The purpose of this paragraph is to avoid any inconsistencies in the Rome Statute by providing that if any other Articles contains a conflicting provision concerning the pre-trial proceedings, that provision shall prevail. 

Author: Mark Klamberg

Updated: 30 June 2016

Article 57(2)

[457] 2. (a) Orders or rulings of the Pre-Trial Chamber issued under Articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges.
(b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-Trial Chamber.
As provided for in Article 39(2)(b)(iii) the functions of the Pre-Trial Chamber shall be carried out either in plenary by three judges of the Pre-Trial Division or by a single judge.
   Following this bifurcated standard for the decision-making of the Pre-Trial Chamber, Article 57(2)(a) contains a list the functions where it is required that at least two of the three judges of the Pre-Trial Chamber concur. It includes propriu mot investigations of the Prosecutor (Article 15), rulings on admissibility and jurisdiction (Articles 18 and 19), investigations by the Prosecutor on the territory of a State (Article 54(2)), confirmation of charges (Article 61(7)), evidence that could harm the national security of a State (Article 72).
   Pursuant to Article 57(2)(b) that more routine functions may be carried out by a single judge, unless otherwise provided for in the Rules of Procedure and Evidence. This includes review of the decision of the Prosecutor not to proceed with an investigation under Article 53 (Rule 108(1) and Rule 110(1)) and decisions in respect of an unique investigative opportunity under Article 56(3) (Rule 114(2)). Further, Rule 7(3) provides that The Pre-Trial Chamber, on its own motion or, if appropriate, at the request of a party, may decide that the functions of the single judge be exercised by the full Chamber. Regulation 47 states that the single judge designated by the Pre-Trial Chamber shall, as far as possible, act for the duration of a case.  

Cross-reference:
Regulation 47

Author: Mark Klamberg

Updated: 30 June 2016

Article 57(3)(a)

[458] 3. In addition to its other functions under this Statute, the Pre-Trial Chamber may:
(a) At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation;
Sub-paragraph 3(a) concerns the power of the Pre-Trial Chamber to issue orders and warrants.
   It may be noted that the paragraph does not use the word "subpoena". If "subpoena" is considered to be covered by "order", this omission may appear irrelevant. However, it becomes more relevant subpoena is understood in the manner taken by the ICTY Appeals Chamber in Blaškić where subpoena meant binding orders [...] under threat of penalty", see Prosecutor v. Blaškić, (Case No. IT-95-14), ICTY A. Ch., Judgment on the request of the Republic of Croatia for the review of decision of Trial Chamber II of 18 July 1997, 29 October 1997, ICTY Appeals Chamber, para. 21.
  
The process of making witnesses appear at the ICC is to be conducted through the Part 9 procedure concering state cooperation. Under article 93 there is no explicit requirement that the ICC cannot compel witnesses to testify, even less that the ICC can issue penalties. It has thus been unclear whether witnesses can be compelled to appear before the Court. However, the majority of the Trial Chamber in in Ruto and Sang issued a decision in which they stated that the ICC had the power to summon witnesses, and a State Party had a legal obligation to compel the witnesses concerned to appear before the court, Prosecutor v. Ruto and Sang, ICC T.Ch., Decision on Prosecutor's Application for Witness Summonses and resulting Request for State Party Cooperation, ICC-01/09-01/11-1274-Corr2, 17 April 2014, para. 193. The Trial Chamber stated that "when Article 64(6)(b) says that the Chamber may 'require the attendance of witnesses', the provision means that the Chamber may—as a compulsory measure—order or subpoena the appearance of witnesses" (para. 100). It would appear logical that the Pre-Trial Chamber has the same power.

Author: Mark Klamberg

Updated: 30 June 2016

Article 57(3)(b)

[459] (b) Upon the request of a person who has been arrested or has appeared pursuant to a summons under Article 58, issue such orders, including measures such as those described in Article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence;
Pursuant to this paragraph the Pre-Trial Chamber may issue the orders necessary to assist the person in the preparation of his or her defence, thereby giving effect to the rights granted to the accussed under Article 67(1)(b)Rule 116 clarifies the threshold for an order under Article 57(3)(b), it specifies that the Pre-trial Chamber must be "satisfied [t]hat such an order would facilitate the collection of evidence that may be material to the proper determination of the issues being adjudicated, or to the proper preparation of the person’s defence". There is no requirement that the evidence is exculpatory or incriminatory.
   In Prosecutor v. Katanga and Chui, ICC PT. Ch. I, Decision on the Defence Application pursuant to Article 57(3)(b) of the Statute to Seek the Cooperation of the Democratic Republic of Congo (DRC), ICC-01/04-01/07, 25 April 2008, PTC I ruled that the Defence must first request documents and information which are likely to be in the possession or control of the Prosecution; and that the Defence of Germain Katanga in accordance with Rule 77 of the Rules before seeking an order under Article 57(3)(b).
    In Prosecutor v. Banda and Jerbo, Decision on the "Defence Application pursuant to Article 57(3)(b) of the Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of Sudan", 15 November 2010, para. 1, the defence aimed at obtaining from the Pre-Trial Chamber a request addressed to the Republic of Sudan to provide various forms of assistance to the Defence team, with a view to allowing them to "properly prepare their case". The Single Judge observed that the Defence had stated that it "does not contest any of the material facts alleged in the DCC for the purposes of confirmation"; (ii) that, at the confirmation hearing, the Defence "shall not 'object to the charges' contained in the DCC, 'challenge the evidence presented by the Prosecutor' or otherwise 'present evidence'". As a consequence, the Single Judge found that defence statements "clarify that any investigative step which might be taken, as well as any evidentiary material which might be collected, following an order issued pursuant to Article 57(3)(b) would serve no purpose for the pre-trial phase of the case, namely in respect of the confirmation hearing which will conclude it". (paras. 3-4). The application was thus rejected. The Single Judge also rejected the defence application for leave of appeal, Prosecutor v. Banda and Jerbo, Decision on the "Defence Application for leave to Appeal the 'Decision on the Defence Application pursuant to Article 57(3)(b) of the Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of Sudan' of 17 November 2010", 30 November 2010. See also Prosecutor v. Katanga and Chui, Ordonnance relative à la « Requête de la Défense de Mathieu Ngudjolo sollicitant l'assistance de la Chambre en vue d'obtenir de la Voice of America (VOA) la bande d'enregistrement de la déclaration de M. Thomas Lubanga à la suite et au sujet de l'attaque de Bogoro du 24 février 2003 », 15 July 2011, where the Defence requested the assistance of the Pre-Trial Chamber in order to obtain an audio clip. The Pre-Trial Chamber considered that it is for the defense, not the Registry, to take all necessary steps to get the audio recording of the statement made by Mr Thomas Lubanga. Indeed, the Defence did not show how assistance from the Registry would be required to achieve this recording (para. 9).
    In Prosecutor v. Banda and Jerbo, Decision on "Defence Application pursuant to Articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the Govemment of the Republic of the Sudan", 1 July 2011, para. 17, the Trial Chamber stated that “the Chamber may seek cooperation under Part 9 when the requirements of (i) specificity (ii) relevance and (iii) necessity are met”. The Trial Chamber found that the Defence required permission to undertake an "open-ended expedition" to the Sudan and that there was "insufficient specificity" of the application, (paras. 22, 30 and 33) This was repeated in Prosecutor v. Banda and Jerbo, Public Redacted Decision on the second defence's application pursuant to Articles 57(3)(b) and 64(6)(a) of the Statute, 21 December 2011, para. 13

Cross-reference:
Rule 116

Author: Mark Klamberg

Updated: 30 June 2016

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. LubangaDecision 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. LubangaDecision 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:
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.  Rule 115
2.  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:
Rule 99

Doctrine:

  1. 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.
  2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 695-701. 
  3. 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.
  4. 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

Article 58(1)(b)(i)

[466] (b) The arrest of the person appears necessary: 
(i) To ensure the person's appearance at trial,
Sub-paragraph 1(b) lists three grounds for issuing an arrest warrant. The first ground concerns the interest to ensure the suspects appearance at trial. In Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled "Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo", ICC-01/04-01/06-824-tCMN, 13 February 2007, paras. 136-138, the Appeals Chamber upheld the finding of the single judge that the following factors should be taken into account for the purpose of Article 58(1)(b)(i) of the Statute: (i) the gravity of the crimes; (ii) the international contacts of the person, and (iii) his or her hypothetical voluntary surrender to the Court. See also Katanga and Ngudjolo, ICC PT. Ch. II, Decision on the Application for Interim Release of Mathieu Ngudjolo Chui, ICC-01/04-01/07-345, 27 March 2008, p. 7. 
    This is the main reason to detain suspects, there are several decisions where arrest warrants have been based on this ground. In Prosecutor v. Lubanga, Decision reviewing the "Decision on the Application for the Interim Release of Thomas Lubanga Dyilo", ICC-01/04-01/06-976, 8 October 2007, TC I concluded that the defendant was highly unlikely to attend his trial voluntarily. For these reasons TC I found it necessary to continue to detain the defendant. In Prosecutor v. Katanga, Warrant of arrest for Germain Katanga, ICC-01/04-01/07-1-tENG, 2 July 2007, PTC I issued an arrest warrant on two grounds, namely Article 58(1)(b)(i) and (ii). The PTC also considered that it would state "the analysis of the evidence and other information submitted by the Prosecution will be set out in a decision to be filed subsequently". (page 3) Subsequently, in Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, ICC-01/04-01/07-55, 5 November 2007, para. 64, PTC stated that "on the basis of the evidence and information contained in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response, and without prejudice to any subsequent determination under Article 60 of the Statute and Rule 119 of the Rules of Procedure and Evidence, the arrest of Germain Katanga appears necessary pursuant to Article 58(1)(b)(i) and (ii) of the Statute, both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation or the court proceedings." In Prosecutor v. Ngudjolo, Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-01/07-260-tENG, 6 July 2007, page 7, PTC I issued an arrest warrant on two grounds, namely article 58(1)(b)(i) and (ii). See also Proscutor v. Ngudjolo, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Mathieu Ngudjolo Chui, ICC-01/04-01/07-262, 6 July 2007, paras. 62-68.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(1)(b)(ii)

[467] (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or
The second ground for issuing an arrest warrant provides that if there is reason to believe that a suspect would interfere with the investigations of the Procesution, he or she can be detained.
   In Prosecutor v. Katanga, Warrant of arrest for Germain Katanga, 2 July 2007, PTC I issued an arrest warrant on two grounds, namely Articles 58(1)(b)(i) and (ii).The PTC also considered that it would state "the analysis of the evidence and other information submitted by the Prosecution will be set out in a decision to be filed subsequently". (page 3) Subsequently, in Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para. 64, PTC stated that "on the basis of the evidence and information contained in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response, and without prejudice to any subsequent determination under Article 60 of the Statute and Rule 119 of the Rules of Procedure and Evidence, the arrest of Germain Katanga appears necessary pursuant to Articles 58(1)(b)(i) and (ii) of the Statute, both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation or the court proceedings".

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(1)(b)(iii)

[468] (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.
The third ground for issuing an arrest warrant aims to prevent the suspect from continuing committing crimes. In Situation in Uganda, the Pre-Trial Chamber stated "that attacks by the LRA are still occurring and that there is therefore a likelihood that failure to arrest [...] will result in the continuation of crimes of the kind described in the Prosecutor’s application; Prosecutor v. Kony, Warrant of Arrest for Joseph Kony issued on 8 July 2005 as amended on 27 September 2005, para. 45; Prosecutor v. Otti, Warrant of Arrest for Vincent Otti, 8 July 2005, para. 45; Prosecutor v. LukwiyaWarrant of Arrest for Raska Lukwiya, 8 July 2005, para. 33. Warrant of Arrest for Okot Odhiambo, 8 July 2005, Prosecutor v. Ongwen, Warrant of Arrest for Dominic Ongwen, 8 July 2005, para. 33.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(2)

[469] 2. The application of the Prosecutor shall contain:
(a) The name of the person and any other relevant identifying information;
(b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed;
(c) A concise statement of the facts which are alleged to constitute those crimes;
(d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and
(e) The reason why the Prosecutor believes that the arrest of the person is necessary.
Paragraph 2 lists what needs to be in the Prosecutor´s application for an arrest warrant. In Situation in the Democratic Republic of Congo, ICC PT. Ch., Decision on the Prosecutor's Application under Article 58, 31 May 2012, paras. 5-6, the Pre-Trial Chamber dismissed the application of the Prosecutor for the lack of specificity. The Appeals Chamber has stated that the list in paragraph 2 is exhaustive, Situation in the Democratic Republic of Congo, ICC A Ch., Judgment on the Prosecutor´s appeal against the decision of the pre-trial chamber I entitled Decision on the Prosecutor's Application for warrants of arrest, ICC-01/04, Article 58, 13 July 2006, para. 45.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(3)

[470] 3. The warrant of arrest shall contain:
(a) The name of the person and any other relevant identifying information;
(b) A specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and
(c) A concise statement of the facts which are alleged to constitute those crimes.
Paragraph 3 lists what needs to be in the warrant of arrest. It shall encompass the information contained in the application of the Prosecutor except of the summary of evidence and the reasons why the Prosecutor considers an arrest necessary.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(4)

[471] 4. The warrant of arrest shall remain in effect until otherwise ordered by the Court.
This paragraph clarifes that only the Court has the power to lift the arrest warrant. The arrest warrant against Lukwiya was cancelled when convincing evidence submitted to the Pre-Trial Chamber showed that the suspect was dead, Prosecutor v. Lukwiya, ICC PT. Ch., Decision to Terminate the Proceedings against Raska Lukwiya, ICC-02/04-01/05-248, 11 July 2007.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(5)

[472] 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9.
This paragraph provides that the Pre-Trial Chamber may request the provisional arrest or the arrest and surrender of the suspect. Article 92 governs provisional arrest.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(6)

[473] 6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes.
The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest which refers to the information listed in paragraph 3.

Author: Mark Klamberg

Updated: 30 June 2016

Article 58(7)

[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 KushaybDecision 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:

  1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 702-714. 
  2. 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.
  3. 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

Article 59

[475] Arrest proceedings in the custodial State
General Remarks
Article 59 concerns arrest proceedings in the custodial state to be distinguished from the initial proceedings before the Court, regulated by Article 60. The assumption is that a suspect as a rule will be located and detained by national authorities in the territory of a State Party. This is not necessary in cases where the suspect is expected to present voluntarily in the Hague. 
   Article 59 imposes obligations on States Parties and is likely to be interpreted and applied by national judges.
   Rule 165 exempts Article 59 from applying to  proceedings concerning offences against the administration of justice. It is unclear from the provisions of Article 59 why it was exempted from such proceedings. An arrest warrant would fall under Article 70(2) of the Statute and in accordance with Rule 167(2) would be governed by the laws of the custodial State, see comment on rule 165(2).

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(1)

[476] 1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.
The reference to part 9 which concerns several obligations, including Article 88 that provides that States Parties shall ensure that there are procedures available under their national law. Moreover, Article 86 requires that States Parties shall cooperate fully with the Court. The requirement "immediately" should be read together with the paragraph 2 which instructs that the arrested person be brought "promptly" and paragraph 7 that the person shall be delivered to the Court "as soon as possible".

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(2)

[477] 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
Paragraph 2 is based on the assumption that the warrant of arrest by the Court is effected by a State Party rather than by an organ of the Court.
   The competent judicial authority shall, in accordance with its own law, that the warrant applies to the suspect; that the arrest has followed the proper process; and that the suspect's rights have been respected. This means that the judicial authoirty must verify that the person arrested is the same as the person sought under the arrest warrant. Article 59 does not specify what the "proper process" is, this is ton be governed by the law of the custodial state. The rights to be respected would include both rights under national and international law, including the rights recognized under Article 55.
    The jurisdiction of the Court in Lubanga was challenged by reference to the "doctrine of abuse of process" (Prosecutor vs.  Lubanga, Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute, 3 October 2006). The defence argued that Lubanga's rights under Article 59(2) were infringed. PTC I considered that there is no evidence indicating that the arrest and detention of Thomas Lubanga Dyilo prior to the Court's cooperation request for the arrest and surrender was the result of any concerted action between the Court and the custodial State; and the Court did therefore not examine the lawfulness of the arrest and detention of Thomas Lubanga Dyilo by the custodial State prior to Court's cooperation request. Thus, PTC I dismissed the challenge to the jurisdiction of the Court raised by Thomas Lubanga Dyilo pursuant to Article 19(2)(a) of the Statute and therefore rejected the request for release (pp. 11-12). In Prosecutor vs.  Lubanga,  ICC A. Ch., Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, paragraph 39, the Appeals Chamber ruled that Article 21(3) of the Statute makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognized human rights norms. The Appeals Chamber continued stating that where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed. The Appeals Chamber found no error in the Pre-Trial Chamber's findings (para. 42). The Pre-Trial Chamber in Bemba "found no indication of any irregularity or arbitrariness in the procedure followed by the competent Belgian authorities that would constitute a material breach of Article 59(2) of the Statute affecting the proceedings before the Court or render the detention of Mr Jean-Pierre Bemba on the authority of the Court otherwise unacceptable". (Prosecutor v. Bemba, ICC PT. Ch., Decision on application for interim release, ICC-01/05-01/08-73, 20 August 2008, para. 49)
   Article 59 does not indicate what a national court should do if it finds that the "proper process" has not been respected. Article 85(1) provides that "[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation". Hall argues that "neither the determination by the national judicial authority that the suspect's right was violated nor the remedies it adopted could prevent surrender to the Court". (Hall, p. 1152, see also Schabas, pp. 718-719).

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(3)

[478] 3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
Paragraph 3 grants the suspect the right to apply for interim release pending surrender. This is determined by the "competent authority", there is no requirement that this should be a "judicial authority". This may be contrasted with the vertical order of the ICTY and ICTR where nothing in their statutes or rules permits national courts to order interim release. This feature of the ICC regime makes it more horisontal. However, the competent authorities of the custodial State cannot lift the arrest warrant issued by the Court. Paragraphs 4-6 develops the process of interim release.

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(4)

[479] 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with Article 58, paragraph 1 (a) and (b).
When considering an application for interim release, the competent authority of the Custodial state shall consider factors such as: the gravity of the crimes; urgent and exceptional circumstances and there must be necessary safeguards to ensure the transfer of the arrested person to the Court. However, the competent authority of the Custodial state shall not rule on challenges to the grounds of the issuance of the warrant of arrest. Such challenges should instead be made to the Pre-Trial Chamber. Since rule 117(3) is not restricted to challenges made after surrender to the court, the arrested person could make such challenges to the Pre-Trial Chamber while still in the custodial state.

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(5)

[480] 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.
Paragraph 5 requires that the custodial State to inform the Pre-Trial Chamber of any request for interim release. The Pre-Trial Chamber is required to make recommendations to the competent authority of the Custodial state. This reflects the assumption that the organs of the Court and the States Parties should work closely together on all issues of cooperation. Rule 117(4) provides that the Pre-Trial Chamber shall provide its recommendations within any time limit set by the custodial State.

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(6)

[481] 6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.
In the case interim release is granted, the Pre-Trial Chamber can through periodic reports control the progress of the investigation and ensure that the proceedings before the Court are secure.

Author: Mark Klamberg

Updated: 30 June 2016

Article 59(7)

[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:

  1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 715-720.
  2. 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.
  3. 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

Article 60(2)

[485] 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in Article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.
Paragraph 2 specifies the considerations for determining the issue of interim release. These considerations are set out in Article 58(1), if they continue to exist the person shall be continued to be detained.
   There are several decision concering interim release. In Prosecutor v. Lubanga, ICC PT. Ch., Decision on the Application for the interim release of Thomas Lubanga Dyilo, 18 October 2006, PTC I rejected the Defence request for interim release. In Prosecutor v. Lubanga, ICC PT. Ch., Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled "Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo", ICC-01/04-01/06-824-tCMN, 13 February 2007, the Appeals Chamber confirmed the decision of the Chamber on the application for the interim release of Thomas Lubanga Dyilo.
   During the pre-trial proceedings some information may be witheld from the defence. This has to be balanced against the ability of the defence to challenge detention. In Prosecutor v. Bemba, ICC PPT. 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, 16 December 2008, para. 32, the Appeals Chamber ruled that defence has the right of access to documents that are essential for the purposes of applying for interim release. See also Prosecutor v. Mbarushimana, ICC PT. Ch., Decision on the Defence Request for Disclosure, 27 January 2011, para. 10.
   The right for the parties under Article 82(1)(b) to appeal decisions granting or denying release is wide in the sense that no there is no requirement on leave to appeal. One question is what is the scope of the Appeals Chamber's reveiw. In Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II's "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", 02 December 2009, para. 62 the Appeals Chamber stated that it "will not review the findings of the Pre-Trial Chamber de novo, instead it will intervene in the findings of the Pre-Trial Chamber only where clear errors of law, fact or procedure are shown to exist and vitiate the Impugned Decision". See also Prosecutor v. Mbarushimana, ICC A. Ch., Judgment on the appeal of Mr Callixte Mbarushimana against the decision of Pre-Trial Chamber I of 19 May 2011 entitled "Decision on the 'Defence Request for Interim Release'", 14 July 2011, para. 15.
   When considering conditional release, one relevant factor is the ability and willingness of the state - where accused will reside - to enforce the conditions for the release.  In Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 27 June 2011 entitled "Decision on Applications for Provisional Release", 19 August 2011, para. 1, the Appeals Chamber found that "[i]f a Chamber is considering conditional release and a State has indicated its general willingness and ability to accept a detained person and enforce conditions, the Chamber must seek observations from that State as to its ability to enforce specific conditions identified by the Chamber". The issues were remanded to the Trial Chamber for new consideration. As a concequence, the Trial Chamber considered the matter again in Prosecutor v. Bemba, ICC T. Ch., Public Redacted Version of the 26 September 2011 Decision on the accused's application for provisional release in light of the Appeals Chamber's judgment of 19 August 2011, 27 September 2011.
   In Bemba, the Pre-Trial Chamber  first granted the suspect conditional release, Prosecutor v. Bemba, ICC PT. Ch. I, 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. This was motivated, inter alia, with Mr Bemba's good behaviour in detention (para. 64)
    On 3 September 2009 the Appeals Chamber issued in Bemba the "Decision on the Request of the Prosecutor for Suspensive Effect" in which it decided to grant suspensive effect in respect of operative paragraph (a) of the 14 August 2009 Decision. In Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II's "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", 2 December 2009, the Appeals Chamber reversed the decision of Pre-Trial Chamber II. The Appeals Chamber found that "[i]n granting conditional release it is necessary to specify the appropriate conditions that make conditional release feasible, identify the State to which Mr. Bemba would be released and whether that State would be able to enforce the conditions imposed by the Court". (para. 2) The Appeals Chamber determined that the Pre-Trial Chamber erred in finding that there existed a change in circumstances that necessitated the conditional release of Mr Bemba. (para. 64).

Author: Mark Klamberg   

Updated: 30 June 2016

Article 60(3)

[486] 3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require.
Paragraph 3 provides that the Pre-Trial Chamber periodically reviews its ruling on release or detention.
   No time period for the timings if these periodic reviews are stipulated in the Statute. However, rule 118(2) requires that the Pre-Trial Chamber reviews its decision at least every 120 days. See for example Prosecutor v. Lubanga, ICC PT. Ch. I, Review of the "Decision on the Application for the Interim Release of Thomas Lubanga Dyilo", 14 February 2007, where PTC I after 120 days reviewed its ruling and decided that Thomas Lubanga Dyilo shall continue to be detained. The Pre-Trial Chamber has the power to review the detention of a suspect even in the absence of an application for inter release. In Prosecutor v. Katanga, ICC PT. Ch., Decision on the powers of the Pre-Trial chamber to review proprio motu the pre-trial detention of Germain Katanga, 18 March 2008, p. 12, the Single Judge decided that she, acting on behalf of the Chamber, "has the power to undertake a proprio motu review to determine whether the conditions for the pre-trial detention of Germain Katanga continue to be met".    
    In Prosecutor v.Bemba,  ICC A. Ch., Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, para. 51, the Appeals Chamber clarified that while the Prosecutor does not have to re-establish circumstances that have already been established, he must show that there has been no change in those circumstances. In light of the above, a Chamber carrying out a periodic review of a ruling on detention under Article 60 (3) of the Statute must satisfy itself that the conditions under Article 58 (1) of the Statute, as required by Article 60 (2) of the Statute, continue to be met (para. 52). The Appeals Chamber observed that the Trial Chamber did not refer to the circumstances underpinning the ruling on detention and indicate whether these circumstances persist or whether there has been a change. (para. 55) For the reasons stated above, the Appeals Chamber concluded that the Trial Chamber erred when, in carrying out a periodic review under Article 60 (3) of the Statute, it failed to revert to the ruling on detention in the manner outlined above at paragraph 52 and, instead, restricted itself to only assessing the alleged new circumstances presented by Mr Bemba. (para. 57) As a consequence, the Appeals Chamber reversed the Impugned Decision. The matter was remanded to the Trial Chamber for a new review in light of paragraphs 40 to 56 of the judgment. Until, and subject to, that review, Mr Bemba was ordered to remain in detention (para. 95).

Cross-references:
Rules 118, 119, 120, 185

Author: Mark Klamberg

Updated: 30 June 2016

Article 60(4)

[487] 4. The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.
Article 60(4) is independent of Article 60(2) in the sense that even if the ground for pre-trial detention set out in Article 58(1) are met, the Pre-Trial Chamber shall consider the release of the detained if the person is detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor.
    There are several decisions concerning Article 60(4). In Prosecutor v. Lubanga, ICC PT. Ch. I, Second Review of the "Decision on the Application for Interim Release of Thomas Libanga Dyilo", 11 June 2007, PTC I considered that the period of detention was reasonable and that there was no inexcusable delay caused by the Prosecution according to Article 60(4) of the Statute. It decided that Thomas Lubanga Dyilo should be detained.
   In Prosecutor v.Lubanga, ICC PT. Ch. I, Second Review of the "Decision on the Application for Interim Release of Thomas Lubanga Dyilo”, 11 June 2007, PTC I considered that the period of detention was reasonable and that there was no inexcusable delay caused by the Prosecution according to Article 60(4) of the Statute. It decided that Thomas Lubanga Dyilo should continue to be detained.
    In Prosecutor v. Lubanga, ICC T. Ch., Decision reviewing the "Decision on the Application for the Interim Release of Thomas Lubanga Dyilo", TC I concluded that the detention of the accused had not been for an unreasonable period due to inexcusable delay by the prosecution and decided that Thomas Lubanga Dyilo were to stay in detention.
    However, in Prosecutor v. Lubanga, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the release of Thomas Lubanga Dyilo", 21 October 2008, the Appeals Chamber found that "[i]f a Chamber imposes a conditional stay of the proceedings, the unconditional release of the accused person is not the "inevitable" consequence and "the only correct course" to take. Instead, the Chamber will have to consider all relevant circumstances and base its decision on release or detention on the criteria in Articles 60 and 58(1) of the Statute".

Cross-references:
Rule 185

Author: Mark Klamberg

Updated: 30 June 2016

Article 60(5)

[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:

  1. William A Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 721-731. 
  2. 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, 129130, 131 and 185
3. Regulations 52 and 53

Doctrine:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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