Confirmation Of Charges Research Articles

Elementi načela utvrđivanja istine u normativnom okviru postupka pred Međunarodnim krivičnim sudom

The main goal of this paper is to reveal if the principle of determination of truth, understood in its traditional, continental law manner, is accepted in the criminal procedure of the International Criminal Court (ICC) and to which extent. In order to fulfill that goal, the author analyses main phases of the proceedings before ICC and points out in each of them the rules which derive from the principle of determination of truth. Also, the author explains and polemicizes with the main theoretical approaches to this issue. Furthermore, some of the most visible normative solutions that are contrary to the principle of determination of truth are being emphasised. Guided by the results of the conducted analysis, the author measures the scope of the principle of determination of truth in the ICC criminal procedure. Therefore, it has been determinated that the influence of the said principle is at its most visible in the early stages of the proceedings (investigation and confirmation of charges), while it fades out in its later stages. Finally, it is being discussed whether it would be better to incorporate the principle of determination of truth to a larger extent in the procedure before ICC, having especially in mind a great importance and historical role that ICC has (or, better said, aspires to have).

Affective Witnessing in the Courtroom

On 22 January 2016 I was seated in the visitors’ gallery of courtroom one at the International Criminal Court in The Hague, The Netherlands.1 On the docket that day was the Confirmation of Charges ...

Ensuring Protection of Child Soldiers from Sexual Violence: Relevance of the Ntaganda Decision on the Confirmation of Charges in Narrowing the Gap

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

Current Trends in the Definition of ‘Perpetrator’ by the International Criminal Court: From the Decision on the Confirmation of Charges in theLubangacase to theKatangajudgment

AbstractThe jurisprudence of the International Criminal Court (ICC) up to theLubangajudgment showed definite interpretive trends on the modes of principal liability. This article aims first to make a critical assessment of these trends by focusing on methodological and substantive aspects. On the one hand, the practice of having resort to theories derived from Continental legal systems, albeit legitimate, is based on a methodology that raises some concerns as to the selection and (mis)interpretation of such theories. On the other hand, the Court has clearly adopted a wide interpretation of some critical elements in which the different modes of principal liability are grounded. This choice has caused a significant expansion of the scope of principal liability as well as a breach of the principles of legality and of individual criminal responsibility. In our opinion, the underpinning of these interpretations is a flawed understanding of the criteria for distinguishing between principals and accessories.This perspective has been overturned by theKatangajudgment, on which the second part of this article will focus. This judgment correctly argues that the distinction between perpetrators and accomplices is grounded only on the autonomous or vicarious character of their contribution to the offence. Furthermore, it follows a partly different approach as to both the methodology and the interpretation of the constitutive elements of principal liability. In our view, this approach better fits both the relevant statutory provision and the basic principles of criminal law.

Prosecutor v. Callixte Mbarushimana: Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges” (Int'l Crim. Ct.)

On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarushimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Démocratiques de Libération du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber’s decision on three separate issues, all of which were rejected.

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?

Abstract Prior to the ICC Pre-Trial Chamber II’s decision authorizing a proprio motu investigation with respect to the situation in Kenya, the jurisprudence of the ICC indicated that there existed three broad evidentiary thresholds pursuant to the Rome Statute: ‘reasonable grounds to believe’ for the issuing of warrants of arrest or summonses to appear, ‘substantial grounds to believe’ for the confirmation of charges, and ‘beyond reasonable doubt’ for a finding of guilt. However, the aforementioned decision held that there existed another: ‘reasonable basis to proceed’ for the authorizing of a proprio motu investigation. It further held that this was the lowest evidentiary threshold provided for in the Rome Statute – lower than that for the issuing of a summons to appear or an arrest warrant. This remained unquestioned in Pre-Trial Chamber III’s subsequent Côte d’Ivoire investigation authorization decision. This result was based primarily on the fact that, at the preliminary examination phase, the Prosecutor cannot engage his/her full investigative powers. This article questions that conclusion on the basis that the standard offered by Pre-Trial Chamber II is, in substance, practically indistinguishable from that governing the issuing of an arrest warrant or a summons to appear and that the former Prosecutor was able to satisfy it without engaging his full preliminary examination powers. It argues that, instead, the standard should be the same for both. However, a distinction is maintained not because one standard is inherently lower than the other, but because of the different contexts in which they are applied. The critical element is evidence that ‘pins’ the crime(s) to an individual(s). Such evidence is not required when requesting authorization to commence a proprio motu investigation, but it is crucial when seeking an arrest warrant or a summons to appear. Thus, applying the same evidentiary standard in both circumstances results in different evidentiary material depending on the absence or inclusion of this element. It is submitted that the Prosecutor’s full investigative powers are reserved to obtain exactly the more specific and narrow evidence that can justify the deprivation of a person’s liberty or to summon him or her to The Hague.

The Importance of Being Earnest: The Timeliness of the Challenge to Admissibility in Katanga

AbstractThis commentary argues that the Trial Chamber in Katanga adopted an erroneous interpretation of the Statute of the International Criminal Court by limiting the grounds to ne bis in idem on which a challenge to admissibility can be brought after the confirmation of charges. The Trial Chamber held that the ‘commencement of trial’ under Article 19(4) is the moment of the constitution of the Trial Chamber, rather than the making of opening statements. This commentary re-examines the legal reasoning of the Court and advocates a different reading. It also suggests that the Chamber has failed to strike a proper balance between the possibility of making challenges to admissibility and the smooth and efficient working of the proceedings, which compromises the long-term legitimacy of the institution and the interests of justice.

Current Developments at the International Criminal Tribunals (2008)

In the decision on the confi rmation of charges in the Katanga and Ngudjolo Chui case Pre-Trial Chamber I of the ICC elaborated on the defi nition and the requisite elements of ‘the war crime of pillaging under Article 8(2)(b)(xvi) of the ICC Statute, 2 which is criminalized under the Rome Statute whether it is committed in international or internal armed confl ict. According to the Elements of Crimes, the war crime of pillaging requires proof of the following three elements: ‘(i) the perpetrator appropriated certain property; (ii) the perpe trator intended to deprive the owner of the property and to appropriate it for private or personal use; and (iii) the appropriation was without the consent of the owner’.

Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges

In its Lubanga decision on Confirmation of Charges, the International Criminal Court (ICC) Pre-Trial Chamber (PTC) I addresses a number of important issues regarding the General Part of Criminal Law in the ICC Statute. As a matter of methodology, the PTC affirms (although without specific argument) that the Elements of Crimes can provide for lower standards for conviction than those suggested by the terms of the Statute itself. The PTC then rejects, on factual grounds, the argument made by the Defence that Lubanga was subject to a mistake of law. The focus of the Decision is the concept of co-perpetration (Article 25(3)(a) ICC Statute) and its objective and subjective requirements. At the outset, the PTC rejects the concept of joint criminal enterprise as falling within co-perpetration. The PTC demands, as an objective requirement, that each co-perpetrator has assumed an ‘essential’ part of the common plan and that he or she can consequently cause the plan to fail by withholding participation. The subjective requirement for co-perpetrator liability is defined as an awareness of a substantial risk that the objective offence elements will be brought about. It is however questionable whether the PTC in fact applied its enunciated standards correctly to the case at hand.

War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?

AbstractThis note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

The Confirmation of Charges before the International Criminal Court: Evaluation and First Application

AbstractThis article examines the different aspects of the confirmation of charges before the International Criminal Court as provided for by article 61 of the Rome Statute. It discusses the procedure prior to the confirmation of charges including the disclosure of evidence, the requirement for the Prosecutor to establish "substantial grounds to believe" that the arrested person has committed the alleged crimes, and the various options open to the different participants to the confirmation hearing. The Thomas Lubanga Dyilo case, in which Pre-Trial Chamber I confirmed the charges on 29 January 2006, will be referred to in order to evaluate the first application of the provisions relating to the confirmation of charges.