Burden and Standard of Proof in Defence Challenges to the Jurisdiction of the International Criminal Court

Abstract

AbstractThe jurisdiction of the International Criminal Court has remained largely uncontested during the first 10 years of its operation. Today, the jurisdictional cooling-off period seems to have run its course. The Prosecutor has opened the first Article 15 investigations and prosecutions in Kenya. The defence has been active in challenging the jurisdiction of the Court. Judges at the pre-trial stage have taken a more inquisitive approach to jurisdictional assessments. This awakening has led to the identification of novel legal issues. One of them is the applicable burden and standard of proof for defence challenges to jurisdiction. So far, this issue has been addressed largely through interpretation of the Statute. The Court's first decisions seem to fluctuate significantly on this point. From pronouncements accepting that such burden and standard do exist and seeking to articulate them, to rulings implying that they do not exist altogether, the Court's case law reveals a measure of inconsistency and a lack of reasoning. This article seeks to expose the different positions assumed on the matter, typically as a result of the judges’ efforts to balance procedural efficiency and fair trial considerations. In doing so, we will reflect critically on the causes and effects of the current state of the law and propose a reorientation of the case law through the use of other relevant international jurisprudence.