The Confirmation of Charges at the International Criminal Court: A Tale of

Two Models

Triestino Mariniello & Niccolò Pons1

Introduction

The role of the proceedings leading to the confirmation of charges hearing and the impact of the
confirmation decision on the conduct of the trial has become so preponderant in recent years to the
extent that its original purpose is now in question. The jurisprudence of the Court has consistently
insisted on the importance of the role of the pre-trial Judges in ensuring judicial economy when
filtering between cases that are meritorious of being heard at trial and cases that are not. This
function has been framed in the context of the limited purpose of the confirmation of charges
hearing as opposed to trial proceedings. In exercising their mandate, various Pre-Trial Chambers
have explained their role with regard to the evaluation of the evidence presented by the Prosecutor
to support the charges against the suspects. According to an established jurisprudence, in order to
meet the evidentiary threshold for committing a suspect for trial, the Prosecutor does not have to
tender more evidence that is, in her view, necessary, to prove that the charges should be confirmed.
Pre-Trial Chamber I in the Gbagbo case took a radical departure from the established view of the
object and purpose of the confirmation of charges in its decision pursuant to Article 61(7) of the
Statute. Specifically, Pre-Trial Chamber I found that for the purposes of the confirmation of
charges, the Prosecutor must present her strongest possible case based on a largely completed
investigation. The Gbagbo Chamber adopted a rather strict approach in applying the standard of
proof under Article 61(7) of the Statute to the evidence presented by the Prosecutor at the
confirmation hearing. In particular, Pre-Trial Chamber I evaluated the evidence not only for its
probative value and its tendency to prove a given element of the crimes, but also from the
perspective of how the Prosecutor conducted the investigation that ultimately led to the collection of
the evidence presented to the Chamber.
With the Adjournment Decision in the Gbagbo case, the Court is facing one of the most significant
instances of divergence in the case law in years, especially because such a decision involves a
crucial phase of the proceedings. This paper examines the reasons behind this evolution, which
provides a stricter interpretation as to what evidence is required at the confirmation of charges
stage, and thus having a potentially significant effect on the applicable evidentiary standard of
‘substantial grounds to believe’ enshrined in Article 61 of the Statute. Specifically, this paper argues
that the departure from previous case law is due to several problems faced by the Prosecutor in
different trials before the ICC. The Prosecutor’s supposed obligation, as inferred by the Gbabgo
Pre-Trial Chamber, to present all obtained evidence at the confirmation stage based on a largely
complete investigation, resembles an attempt by the bench to supervise the conduct of the
investigation by the Prosecutor, in order to prevent scenarios already experienced in other cases at
the trial stage.
This chapter critically assesses how the Gbagbo approach tends to mark a significant shift in the
balance of the case preparation into the domain of pre-trial proceedings. Accordingly, if presented
with sufficient evidence, the Pre-Trial Chamber should only confirm the charges and commit the
suspect for trial when the case is, in reality, at a rather advanced stage of preparation. The aim of
this chapter is to question whether, and to what extent, the requirements that the investigation
should be ‘largely completed’ before the confirmation of charges hearing, and that the Prosecutor
must accordingly present her strongest possible case, are indeed consistent with the legal framework
1
The authors wish to express their gratitude and appreciation to Dr. Peter Langford, Dr. Paolo Lobba, and Dr. Donato
Vozza for their comments on an earlier draft. The views expressed herein by Niccolò Pons are those of the author alone
and do not necessarily reflect the views of the ICC.

1
of the Statute. In this regard, this paper critically examines the recent approach of Pre-Trial
Chamber I in light of the limited scope and purpose of the confirmation of charges, as well as the
discretion that the legal framework of the ICC appears to confer upon the Prosecutor in her choice
of the type and amount of evidence to rely on, in order to meet the ‘substantial grounds to believe’
threshold. Therefore, we conclude that the ICC’s recent approach entails the risk of transforming
the confirmation of charges into a trial, resulting in potential prejudice to the screening role of the
Pre-Trial Chamber and, ultimately, to the expeditiousness of the proceedings.

The Significance of the Decision on the Confirmation of Charges within the ICC Proceedings

According to Article 61(1) of the Statute, ‘within a reasonable time after the person's surrender or
voluntary appearance before the Court, the Pre-Trial Chamber of the ICC shall hold a hearing to
confirm the charges on which the Prosecutor intends to seek trial’. 2 The confirmation of charges is
the stage where Pre-Trial Chambers make their judicial screening as to which cases to send to trial.
The Prosecutor and the Defence are the parties to the confirmation hearing and as such, they may
submit their evidence and call witnesses.3 Pursuant to Article 61(6) of the Statute, the suspect can
also object to the charges, challenge the evidence presented by the Prosecutor and present
evidence.4 In addition, victims who have suffered personal harm linked to the charges against the
accused may participate in the confirmation proceedings through their legal representatives. 5
Following an assessment of the evidence disclosed between the parties and communicated to the
Chamber, Judges may (i) confirm the charges;6 (ii) decline to confirm the charges;7 or (iii) adjourn
the hearing and request the Prosecutor to consider (a) providing further evidence or conducting
further investigation with respect to a particular charge; 8 or (b) amending a charge because the
evidence submitted appears to establish a different crime within the jurisdiction of the Court. 9
The establishment of a confirmation hearing before a three-judge Chamber has been strongly
criticized by academic literature arguing that it constitutes an excessively costly and time-
consuming means to speed up the case and ensure the respect of the rights of the accused. 10
Nonetheless, the confirmation of charges more appropriately reflects the need to regulate the
delicate passage between the existence of reasonable suspicion that an individual has committed a
crime (and the deprivation of his liberty, if necessary) and deciding to send his or her case to trial,
in the event the suspicion is strong enough to justify the initiation of a criminal trial.
Statutory provisions and Rules provide that the confirmation of charges phase does not constitute a
mere administrative formality. The early cases before the ICC demonstrate that Pre-Trial Chambers
have already declined to confirm the charges against four different suspects, by finding that there
were not substantial grounds to believe that the suspects had committed crimes falling within the
ICC’s jurisdiction.11 In preventing cases characterized by weak evidence from proceeding to trial,
2
ICC Statute, Article 61(1).
3
ICC Statute, Article 61(5) and 61(6)(c).
4
ICC Statute, Article 61(6)(a) and (b).
5
ICC Statute, Article 68(3).
6
ICC Statute, Article (61)(7)(a).
7
ICC Statute, Article (61)(7)(b).
8
ICC Statute, Article (61)(7)(c)(i).
9
ICC Statute, Article 61(7)(c)(ii).
10
William Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 734.
11
The four suspects are: Abu Garda, see Prosecutor v Bahar Idriss Abu Garda, ICC-02/05-02/09-243-Red, Decision on
the Confirmation of Charges, Pre-Trial Chamber I, 8 February 2010 (‘Abu Garda Confirmation of Charges’);
Mbarushimana, see Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the confirmation of
charges, Pre-Trial Chamber I, 16 December 2011 (‘Mbarushimana Confirmation of Charges’); Ali, see Prosecutor v
Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-382-Red, Decision
on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-Trial Chamber II, 23
January 2012 (‘Muthaura, Kenyatta and Hussein Ali Confirmation of Charges’); Kosgey, see Prosecutor v William

2
the confirmation of charges has shown its crucial function in serving the purpose of judicial
economy, which is extremely important for an international tribunal facing long and expensive
proceedings.
The functions of Pre-Trial Chambers under Article 61 have also appeared crucial in avoiding
detention of the suspect pending trial. The confirmation of charges fulfilled its main objective to
protect the rights of the accused against unfounded charges. This is particularly true in the
Mbarushimana case, where the suspect was in detention pursuant to a warrant of arrest issued under
Article 58(…).12 Indeed, by not sending Mbarushimana to trial, the confirmation decision prevented
a potentially lengthy limitation of personal liberty in a case lacking sufficient evidence to establish
that the suspect was criminally liable of war crimes and crimes against humanity. 13
In addition, the relevance of the decision on the confirmation of charges goes beyond the pre-trial
phase. Indeed, on the basis of the relevant normative framework provided by the Statute and RPE,
the confirmation of charges also has significant weight in other stages of the proceedings. This was
emphasised by the Trial Chamber III in the Bemba case, where the judges stated that, ‘the
Confirmation Decision is the authoritative document for all trial proceedings. Thus, whenever the
prosecution refers to the charges against the accused, this should be by way of the exact language of
the Confirmation Decision, and with specific reference to the relevant paragraph’.14
Although the Pre-Trial Chambers and Trial Chambers are independent from one another, some
decisions taken by the former (most notably the decision on the confirmation of charges), are
binding and must, therefore, be complied with by Trial Chambers. The relationship between pre-
trial and trial phases is not confined to the filtering function of Pre-Trial Chambers. In the ICC’s
jurisprudence on victims, it is well established that applicants may qualify as victims for the
purpose of participating in the trial proceedings only when they have suffered personal harm linked
to charges confirmed against the accused.15 The determination by the Trial Chamber as to who can
stand before the Court as a victim of the case must, therefore, comply with the decision on the
confirmation of charges issued by the Pre-Trial Chamber in that case.
Most importantly, the decision on the confirmation of charges has a central role in determining and
delimiting the factual subject matter of the case for the purposes of the trial. Charges are composed
of both factual and legal elements. In this context, the Trial Chamber is prevented from exceeding
the factual ambit as drawn in the confirmation of charges. According to Article 74(2), ‘the decision
at trial shall not exceed the facts and circumstances described in the charges and any amendments
to the charges’ (emphasis added).16 In addition, Regulation 55 of the Regulations of the Court
(‘Regulations’) provides that the Trial Chamber may modify the legal characterisation of facts but it
cannot exceed the facts and circumstances described in the charges and any amendments to the
charges.17 For Judge Fulford, ‘the power to frame and alter the charges is exclusively a function of
the Pre-Trial Chamber. By Article 61(9), after the charges have been confirmed, control over them

Samoei Ruto, Henry Kiporono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-373, Decision on the Confirmation of
Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Pre-Trial Chamber II, 23 January 2012 (‘Ruto,
Kosgey and Arap Sang Confirmation of Charges’).
12
See Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10-1-US, Decision on the Prosecutor's Application for a
Warrant of Arrest against Callixte Mbarushimana, Pre-Trial Chamber I, 28 September 2010.
13
See Mbarushimana Confirmation of Charges (n 11).
14
Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-836, Decision on the defence application for corrections
to the Document Containing the Charges and for the prosecution to file a Second Amended Document Containing the
Charges, Trial Chamber III, 20 July 2010, para 37.
15
With the sole exception of the Decision in Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1119, Decision on
victims' participation, Trial Chamber I, 18 January 2008. This decision was reversed by Appeals Chamber in
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-1432, Judgment on the appeals of the Prosecutor and the
Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, Appeals Chamber, 11 July
2008, para 3.
16
ICC Statute, Article 74(2).
17
Regulation 55.

3
remains with the Pre-Trial Chamber until the commencement of the trial (…) [F]or additional
charges, or to substitute more serious charges, there must be a further confirmation hearing’.18
Therefore, for the purposes of the conviction of the accused, the Trial Chamber cannot rely on any
facts that were not the subject of the charges. Trial Chamber I faced this issue in the Lubanga case.
As to the specific conduct of Lubanga, the Prosecutor had decided to confine the charges against
him to the enlistment, recruitment, and use of child soldiers. 19 However, during the proceedings,
the Trial Chamber, relying on Regulation 55, stated that it could take into account an additional
legal re-characterisation of the facts, in order to include also charges of inhumane treatment and or
cruel treatment, and sexual slavery.20 The Appeals Chamber reversed the decision, finding that the
Trial Chamber’s approach would violate Article 74(2) of the Statute, since the charges confirmed
against Lubanga did not mention sexual slavery, inhumane treatment and or cruel treatment. 21
Thus, in the verdict against Lubanga, the Trial Chamber had to exclude that a decision pursuant to
Article 74 could cover factual allegations potentially supporting sexual slavery, given that they had
not been included in the decision on the confirmation of charges.22

The Vague Concept of ‘Substantial Grounds to Believe’

According to Article 61(7) of the Statute, ‘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’. 23 Despite the central role played by the confirmation
of charges within the ICC proceedings, the Statute does not clarify the concept of ‘substantial
grounds to believe’. In order to define the evidentiary threshold in question, judges relied on
internationally recognised human rights jurisprudence on standards of proof, namely the ECtHR,
finding that this test requires ‘strong grounds for believing’ or that ‘substantial grounds for
believing’ have been shown.24 The Pre-Trial Chamber in the Bemba case provided a literal
interpretation of the term ‘substantial’ as ‘significant’ or ‘solid’. 25 Therefore, in order for the
Prosecutor to meet this evidentiary burden under Article 61(7), she ‘must offer concrete and
tangible proof demonstrating a clear line of reasoning underpinning its specific allegations’. 26

18
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2054, Minority opinion on the ‘Decision giving notice to the
parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation
55(2) of the Regulations of the Court’, 17 July 2009, paras 13, 16.
19
See Triestino Mariniello, ‘Prosecutor v. Thomas Lubanga Dyilo: the First Judgment of the International Criminal
Court’s Trial Chamber’ (2012) 1(1) International Human Rights Law Review 137.
20
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2049, Decision giving notice to the parties and participants
that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the
Regulations of the Court, Trial Chamber I, 14 July 2009.
21
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2205, Judgment on the appeals of Mr Lubanga Dyilo and the
Prosecutor against the Decision of Trial Chamber I of 14 July 2009, Decision giving notice to the parties and
participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of
the Regulations of the Court, Appeals Chamber, 8 December 2009.
22
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute, Trial
Chamber, 14 March 2012 (‘Lubanga Judgment’).
23
ICC Statute, Article 61(7).
24
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the confirmation of charges, Pre-Trial
Chamber I, 14 May 2007, para 38 (‘Lubanga Confirmation of Charges’); Prosecutor v Katanga and Ngudjolo, ICC-
01/04-01/07-717, Decision on the Confirmation of Charges, Pre-Trial Chamber I, 30 September 2008, para 65
(‘Katanga and Ngudjolo Confirmation of Charges’).
25
Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, 15 June
2009, para 29 (‘Bemba Confirmation of Charges’).
26
See Lubanga Confirmation of Charges (n 24), paras 38-39. This reasoning was upheld by the same Chamber in
Katanga and Ngudjolo Confirmation of Charges (n 24), para 65.

4
The ICC Prosecutor proposed an interpretation of the evidentiary test under Article 61(7) based on
the ICTY and ICTR ‘prima facie’ factors, by raising similarities between the confirmation of
charges and confirmation of indictment before ad hoc tribunals.27 It is important to note that Rule
47(b) of the Rules of Procedure and Evidence (‘Rules’) of the ad hoc Tribunals establishes that the
Prosecutor may submit an indictment if he is satisfied that there is sufficient evidence providing
‘reasonable grounds for believing’ that a person has committed a crime falling within the
jurisdiction of the Tribunals.28 The same standard is applicable for establishing the existence of a
prima facie case in order to confirm an indictment under 19(1) and 18(1) of the Statutes of the
ICTY and the ICTR, respectively.29
The Prosecutor’s interpretation does not appear to be very persuasive. It is true that, while the ICC
is not bound by the jurisprudence of the ICTY and ICTR, judges of the permanent tribunal have
frequently referred to the practice of the ad hoc tribunals, namely in the area of substantive criminal
law.30 However, the structural differences between the confirmation of indictment before the ICTY
and ICTR, and the confirmation of charges before the ICC, preclude taking the ad hoc Statutes and
Rules into account in order to interpret procedural rules under Article 61 of the Statute. Indeed,
whereas the former is an ex parte procedure, which is conducted by one judge in the absence of the
Defence,31 the latter is purposely established as a hearing, whereby the person charged has the right
to be present and to contest the evidence before a Pre-Trial Chamber composed of three judges. 32
Such differences have been recently stressed by the Appeals Chamber in the Mbarushimana case,
where the judges found inappropriate the Prosecutor’s analogy between the confirmation of charges
hearing before the ICC, and the ICTY and ICTR procedures. 33 Judges sitting in the Appeals
Chamber refused to accept that the ICC was bound by the procedures of the ad hoc tribunals, which
allow for a determination of whether cases can proceed without the evaluation of the credibility of
evidence,34 whereas – at the confirmation of charges - the Pre-Trial Chambers have the ability to
assess the contested evidence and resolve ambiguities, contradictions, inconsistencies, or doubts as
to credibility introduced by the contestation of the evidence.35
In addition, ad hoc tribunals provide different evidentiary standards with respect to the confirmation
of indictment. Indeed, the confirmation of charges requires a higher evidentiary threshold of
‘substantial grounds’ in place of the lower standard of ‘reasonable grounds’ for the purposes of
confirm the indictment that exists at the ICTY and ICTR. Rather than with the confirmation of
charges, the relevant test for the confirmation of indictment before the ICTY and ICTR presents
similarities with the ‘reasonable grounds to believe’ standard in the meaning of Article 58(1)(a) of
the Rome Statute.36 This provision concerning the issuance of an arrest warrant before the ICC
requires a lower standard than the confirmation of charges.37
27
See Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-749, Prosecution’s Document Addressing Matters that
were Discussed at the Confirmation Hearing, Pre-Trial Chamber I, 4 December 2006, para 11.
28
Rule 47(b) of the ICTY and ICTR Rules of Procedures and Evidence.
29
See Gauthier de Beco, ‘The Confirmation of Charges before the International Criminal Court: Evaluation and First
Application’ (2007) 7 International Criminal Law Review 469.
30
Gilbert Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the
Jurisprudence of the ICC’ in Carsten Stahn and Goran Sluiter (eds), The Emerging Practice of the International
Criminal Court (Martinus Nijhoff 2009).
31
Article 19 of the ICTY Statute and Article 18 of the ICTR Statute. See also Rule 47(b) of the ICTY and ICTR Rules
of Procedure and Evidence.
32
ICC Statute, Article 61(6).
33
Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10-514, 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, Appeals
Chamber, 30 May 2012, para 43 (‘Mbarushimana Appeal Judgment’). For a description of this judgment, see Triestino
Mariniello, ‘International Criminal Court: Selected Developments in 2012’ (2013) 2(2) International Human Rights
Law Review 344, 351-353.
34
Mbarushimana Appeal Judgment (n 33), para 43.
35
ibid, para 40.
36
ibid, para 43.
37
ibid.

5
Thus, the test pursuant to Article 61(7) falls between the thresholds of ‘reasonable grounds to
believe’, regarding the issuance of a warrant of arrest, and ‘beyond a reasonable doubt’, required by
Article 66(3) for the conviction.38 Such evidence submitted to the Chamber must be analysed and
assessed as a whole.39 Judges sitting in Pre-Trial Chambers do not have the mandate to convince the
Trial Chamber that the accused is guilty ‘beyond a reasonable doubts’ as required by Article 66(3).
Nor do they have to anticipate whether the Trial Chamber will enter a conviction or an acquittal on
all or part of the charges. Rather, the mandate of the Pre-Trial judges is to assess, at the moment
they hear the case, whether there is sufficient evidence to establish substantial grounds to believe
that the suspect committed each of the crimes charged and, accordingly, whether it is justified to
start a trial and to hear the entirety of the evidence available, including (eventually) the live
testimony of all witnesses. In concrete terms, however, the decision to confirm the charges and
commit a suspect for trial has a number of implications that, technically, the pre-trial judges should
not take into consideration in their legal assessment of the evidence but that may nonetheless play
an indirect and decisive role in their evaluation. These are, for example, the possibility that the
accused will be kept in detention for several years while awaiting a judgment (should the grounds
for detention remain), the need to put in place a series of protective measures for the witnesses and
to call them live for testimony, the likely participation of a considerable number of victims in the
proceedings given the widespread nature of the crimes usually charged before the ICC and last but
not least, the judicial and financial resources normally required by an international criminal trial.

From Lubanga to the Kenyan Cases: the ‘Traditional’ Approach to the Confirmation of
Charges

The role of the proceedings leading to the confirmation of charges hearing and the impact of the
confirmation decision on the conduct of the trial has become so preponderant in recent years to the
extent that its original purpose is now in question. The established jurisprudence of the Court has
consistently insisted on the importance of the role of the pre-trial judges in ensuring judicial
economy when filtering between cases that are meritorious of being heard at trial and cases that are
not. This function has been framed in the context of the limited purpose of the confirmation of
charges hearing as opposed to trial proceedings. This is reflected in the different evidentiary
thresholds applicable to these two stages. In exercising their mandate, various Pre-Trial Chambers
have explained their role with regard to the evaluation of the evidence presented by the Prosecutor
to support the charges against the suspects.
Pre-Trial Chamber II stressed that it is ‘not the amount of Disclosed Evidence but its probative
value [that] will prove essential and decisive for the Chamber when taking a decision [on the
confirmation of charges]’.40 Pre-Trial Chamber II acknowledged that ‘this approach enables the
Chamber to make its determination pursuant to article 61(7) of the Statute even if the evidence as a
whole relating to one charge lacks direct evidence, and is only supported by pieces of indirect
evidence, provided that their probative value allows the Chamber to determine that the threshold
established in that article is met’.41 In the case of the Prosecutor v Adballah Banda and Saleh Jerbo
(Banda and Jerbo case), Pre-Trial Chamber I held that ‘the Prosecutor is not required to tender into
the record of the case more evidence than is, in his view, necessary to convince the Chamber that
the charges should be confirmed’.42 When referring to the possibility for the Prosecutor to use,
under Article 61(5), summary evidence, Pre-Trial Chamber I unequivocally stated that ‘the use of
summary evidence is expressly allowed by the legal instruments of the Court and, accordingly, the
38
Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), para 40.
39
Lubanga Confirmation of Charges (n 24), para 38.
40
Bemba Confirmation of Charges (n 25), para 60.
41
ibid, para 54.
42
Prosecutor v Abdallah Banda and Saleh Jerbo, ICC-02/05-03/09-121-Corr-Red, Corrigendum of the ‘Decision on the
Confirmation of Charges’, Pre-Trial Chamber I, 8 March 2011, para 40.

6
Prosecutor should not be unduly prejudiced as a result of using such evidence’. 43 As clarified by the
Appeals Chamber in Mbarushimana, the Prosecutor ‘need not submit more evidence than is
necessary to meet the threshold of substantial grounds to believe’. 44 Thus, so far, Pre-Trial
Chambers have simply confined themselves to evaluating the dossier of the case brought by the
Prosecutor on the basis of the evidence submitted, without assessing whether the case was
sufficiently investigated by the Prosecutor.
The conduct of the investigation by the Prosecutor prior to the presentation of the case at the
confirmation of charges hearing has been the object of findings of some Pre-Trial Chambers. Judges
have addressed the issues as to whether the screening role of Pre-Trial Chamber encompasses the
power to assess the manner in which the Prosecutor conducted the investigation leading to the
presentation of the case at the confirmation hearing. This assessment has resulted in the pre-trial
judges being able to evaluate the product of the Prosecutor’s investigation, that is to say the
evidence, but not the conduct of the investigation itself. As underlined by Pre-Trial Chamber II, ‘the
scope of determination under article 61(7) of the Statute relates to the assessment of the evidence
available and not the manner in which the Prosecutor conducted his investigations’. 45 This is
consistent with the view expressed by Pre-Trial Chamber I, according to which

[A]t this stage of the proceedings, […] the manner in which the investigations were conducted can
only be viewed in the context of the purpose of the confirmation hearing […]. It follows, therefore,
that the Defence's objection raised in this instance cannot in itself cause the Chamber to decline to
confirm the charges on the basis of an alleged investigative failure on the part of the Prosecution.
Rather, this objection may have an impact on the Chamber's assessment of whether the Prosecutor's
evidence as a whole has met the ‘substantial grounds to believe’ threshold. 46

Towards the Leveling between Pre-Trial and Trial Proceedings: the Gbagbo Approach

A radical departure from the consolidated view of the object and purpose of the confirmation of
charges occurred in the latest decision taken pursuant to Article 61(7) of the Statute by Pre-Trial
Chamber I in the Gbagbo case. Notably, Pre-Trial Chamber I left the interpretation of the
evidentiary threshold of ‘substantial grounds to believe’ virtually untouched. 47 However, inferred
from this provision is the Prosecutor’s alleged obligation to present the strongest possible case at
the confirmation hearing, based on a largely completed investigation. The Pre-Trial Chamber I,
thereby, arguably vested itself with the power to revise the manner in which the Prosecutor
conducted the investigation in that case. The Majority of Pre-Trial Chamber I, Presiding Judge
Fernández dissenting, found that the evidence presented by the Prosecutor, 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 under article 61(7)
(b) of the Statute’.48 As a consequence, the Majority decided to adjourn the confirmation hearing
pursuant to paragraph 61(7)(c)(i) of the Statute and request the Prosecutor to consider the possibility
of conducting a more in-depth investigation or providing additional evidence with respect to
specific issues.49 The approach taken by the Majority of Pre-Trial Chamber I with regard to the
evidence presented by the Prosecutor is of paramount interest. While acknowledging that Article
61(5) of the Statute only requires the Prosecutor to support each charge with ‘sufficient’ evidence,

43
ibid, para 41.
44
Mbarushimana Appeal Judgment (n 33), para 47.
45
Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), para 51.
46
ibid, paras 51-52.
47
See Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-432, Decision adjourning the hearing on the confirmation of
charges pursuant to article 61(7)(c)(i) of the Rome Statute (‘Adjournment Decision’), Pre-Trial Chamber I, 03 June
2013, paras 16-18.
48
ibid, para 15.
49
ibid, para 44.

7
the Majority stated that, ‘the Chamber must assume that the Prosecutor has presented her strongest
possible case based on a largely completed investigation’. 50 In the view of the Majority, this
assumption reflects the need to ensure continuity in the presentation of the case and safeguards the
rights of the Defence, ‘which should not be presented with a wholly different case at trial’. 51 In
addition, it ensures a rapid commencement of the trial, should the charges be confirmed, consistent
with the right of the accused to be tried without undue delay, as enshrined in Article 67(1)(c) of the
Statute.52 Elsewhere in the Adjournment Decision, the Majority of Pre-Trial Chamber I underlined
that the Prosecutor, when trying to meet to the required evidentiary threshold for the contextual
elements of crimes against humanity, chose to rely essentially on anonymous hearsay from reports
prepared by non-governmental organizations, UN reports and press articles. 53 The Chamber
stressed that it was unable to attach much probative value to this material and, interestingly, pointed
out that past jurisprudence of Pre-Trial Chambers may have been forgiving in this respect, thus
leading the Prosecutor not ‘to present all her evidence or largely complete her investigation […].’ 54
The decision was subject to appeal by the Prosecutor and the Appeals Chamber rendered its
Judgment on 16 December 2013, dismissing the appeal and confirming the findings of the Majority
of Pre-Trial Chamber I.55 Following the Appeals Chamber ruling, the Prosecutor filed a new
Document Containing the Charges in accordance with Rule 121(3) of the Rules, together with a list
of evidence that she intends to rely on in support of the charges brought against the suspect. The
Defence and the victims participating in the proceedings were given fixed time limits to respond.
On the basis of all this material, the Chamber must issue a new decision pursuant to Article 61(7) of
the Statute. The Adjournment Decision in the Gbagbo case triggers a number of important
considerations on the structure of the proceedings before the ICC in light of the respective rules that
govern them.

An Appraisal of the Reasons behind the Paradigm Shift in the Gbabgo Case

The Gbagbo Chamber adopted a rather strict approach with respect to the application of the
standard of proof under Article 61(7) of the Statute to the evidence presented by the Prosecutor at
the confirmation hearing. This resulted, more generally, in questioning the nature and purpose of
the confirmation of charges stage. In comparison with other cases before the Court, Pre-Trial
Chamber I has addressed the evidence not simply from the point of view of its probative value and
the contribution that it makes to prove a given element of the crimes, but also through an evaluation
of the conduct of the investigation leading to the evidence as its ultimate product. It is thus
necessary to consider the procedural obstacles related to the conduct of the investigation that other
cases, especially at the trial level, have encountered in the first ten years of activity of the Court.
These obstacles may have had an indirect role in Pre-Trial Chamber I’s decision to require the
Prosecutor to present a very consolidated and well-structured case at the confirmation hearing.
In the case of the Prosecutor v Thomas Lubanga (Lubanga case), the first issues concerning the
conduct of the investigation carried out by the Prosecutor arose, in particular, with regard to the
controversial use of intermediaries as investigators by proxy for the OTP. The question of the
reliability and credibility of such intermediaries became a contentious issue at the outset of the trial,
when the first child soldier witness recanted his evidence, and claimed that an intermediary had
50
ibid, para 25.
51
ibid, para 25. See also Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-728, Decision on defence application
pursuant to Article 64(4) and related requests, Trial Chamber V, 26 April 2013, paras 118-123.
52
Adjournment Decision (n 47), para 25.
53
ibid, para 35.
54
ibid, para 37.
55
Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-572, Judgment on the appeal of the Prosecutor against the decision
of Pre-Trial Chamber I of 3 June 2013 entitled ‘Decision adjourning the hearing on the confirmation of charges
pursuant to article 61(7)(c)(i) of the Rome Statute’, Appeals Chamber, 16 December 2013.

8
instructed him to lie.56 Trial Chamber I devoted a considerable part of the Judgment to the conduct
of the investigation by the Prosecutor, including its impact on the conduct of the trial and on the
evaluation of the evidence.57 The Trial Chamber criticised the Prosecutor’s approach of delegating
its investigative responsibilities to intermediaries who contacted a series of unreliable witnesses. 58
This had a negative impact on the expeditiousness of the proceedings. Indeed, due to the lack of a
proper supervision of the main (three) intermediaries, the Trial Chamber was engaged in a lengthy
assessment of the ‘inaccurate or dishonest’ evidence submitted by a large number of individuals.
According to the Trial Chamber, ‘the prosecution’s negligence in failing to verify and scrutinise this
material sufficiently before it was introduced led to significant expenditure on the part of the
Court’.59
On 18 December 2012, Trial Chamber II acquitted Mathieu Ngudjolo of 7 counts of war crimes and
3 counts of crimes against humanity.60 The case essentially collapsed because the Prosecutor did not
prove beyond reasonable doubt that Mr. Ngudjolo was the lead commander of the Lendu
combatants from Bedu-Ezekere at the time of the Bogoro attack, as charged by the OTP. 61 This
made the establishment of the individual criminal responsibility of Mr. Ngudjolo under Article
25(3)(a) of the Statute impossible. Interestingly for the present discussion, Trial Chamber II delved
into the shortcomings of the Prosecutor’s investigation, discussing the desirability of an improved
understanding of the territory where crimes were allegedly committed, and addressing the
appropriateness of calling more commanders as witnesses to testify. Essentially, the Prosecution
relied almost entirely on the evidence of three key witnesses to prove a series of elements of the
case, most notably the alleged position of authority of the accused. The Chamber’s findings that
these witnesses were not credible resulted in Mr. Ngudjolo’s acquittal.62
The path recently followed by the two cases arising out of the Situation in the Republic of Kenya is
not any more promising. Here, six suspects in two distinct cases were originally summoned to
appear before Pre-Trial Chamber II on 8 March 2011. 63 The charges against four of them were
confirmed on 23 January 2012, less than ten months later. 64 However, the trial against William
Ruto and Joshua Sang commenced only on 10 September 2013, nearly 20 months after the
confirmation of charges. The date of Uhuru Kenyatta’s trial is still a matter of discussion between
the parties and the Chamber.65 It is noteworthy that both cases suffered from several postponements,
the withdrawal of the charges against Mr. Muthaura, and other procedural obstacles, mostly related
to the Prosecution’s need to conduct further investigation after the confirmation of charges phase, as
well as its failure to disclose the evidence timely and in accordance with the statutory obligations. 66
56
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, Trial
Chamber I, 31 May 2010.
57
Lubanga Judgment (n 22), paras 178-477.
58
ibid, para 482.
59
ibid.
60
Prosecutor v Mathieu Chui Ngudjolo, ICC-01/04-02/12-3, Jugement rendu en application de l'article 74 du Statut,
Trial Chamber II, 18 December 2012.
61
ibid, para 503.
62
ibid. See in particular the findings of the Trial Chamber II in paras 157-159, 189-190 and 218-219 of the Judgment.
63
Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-01,
Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai
Kenyatta and Mohammed Hussein Ali, Pre-Trial Chamber II, 8 March 2011; and Prosecutor v William Samoei Ruto,
Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01, Decision on the Prosecutor's Application for
Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Pre-Trial Chamber II, 8
March 2011.
64
Ruto, Kosgey and Arap Sang, Confirmation of Charges (n 11); and Muthaura, Kenyatta and Hussein Ali
Confirmation of Charges (n 10).
65
Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-893, Scheduling order and agenda for status conference of 5
February 2014, Trial Chamber V(B), 3 February 2014, para 1.
66
Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-875, Notification of the removal of a witness from the
Prosecution’s witness list and application for an adjournment of the provisional trial date, Office of the ICC Prosecutor,
20 December 2013. See also Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11-728-Anx2, Concurring Opinion of

9
On the basis of the shortcomings and weaknesses in the Prosecutor’s investigation as found by
different chambers of the Court, the Gbagbo Adjournment Decision sounds an alarm bell. In a way,
the Prosecutor’s supposed obligation, as inferred by the Majority of Pre-Trial Chamber I, to present
all evidence in her possession at the confirmation stage based on a largely complete investigation,
resembles an attempt by the bench to oversee the conduct of the investigation by the Prosecutor, in
order to prevent scenarios already experienced in other cases at the trial stage.

Imposing a ‘Largely Complete Investigation’ for the Confirmation of Charges: Lights and
Shadows

With the issuance of the Adjournment Decision in the Gbagbo case, the Court is facing one of the
most significant divergences in its case law in years, especially because it touches upon a crucial
phase of the proceedings. The traditional approach is characterized by a limited role of the Pre-Trial
Chambers as quick and efficient gatekeepers between cases that should go to trial and cases that
should not advance to the trial stage. This implies that the Pre-Trial Judges decide on the
confirmation of charges as soon as possible after the suspect has made his or her first appearance
before the bench. In other words, the case proceeds to trial as soon as it has a sufficiently defined
structure from a factual and evidentiary point of view to meet the threshold of substantial grounds to
believe and, accordingly, not to infringe upon the rights of the suspect. 67 It is then the responsibility
of the Prosecutor to investigate further and prepare the case for trial on the basis of the charges
confirmed by the Pre-Trial Chamber, without exceeding the facts and circumstances described in
the charges, which represent the boundaries of the Prosecutor’s case, as established in Article 74(2)
of the Statute. On the contrary, the Gbagbo approach tends to signal a significant shift in the
balance of the case preparation into the domain of pre-trial proceedings. Accordingly, the Pre-Trial
Chamber should confirm the charges and commit the suspect for trial, should there be sufficient
evidence to do so, only when the case is, in reality, at a rather advanced stage of preparation. This
approach implies that: (i) the investigations to gather the evidence, both incriminating and
exculpatory, carried out by the Prosecutor are as complete as possible; (ii) the incriminating
evidence collected is strong; and (iii) the confirmation of charges hearing is more complex than
usual, given the amount of evidence that the parties will litigate, which may also induce the parties
to call some witnesses to give live testimony.
The expectation that the Prosecutor must present all her evidence at the confirmation of charges
hearing or her strongest case based on a largely complete investigation, appears to resemble more a
desirable policy or practice that can, at best, be reasonably expected by an international prosecutor
dealing with massive international crimes, rather than an obligation stemming from the ICC’s
applicable law. This conclusion finds support primarily in the wording of the Appeals Chamber,
which has addressed the matter more than once, yet always in non-binding terms. 68 In
Mbarushimana, it stated that, ‘the investigation should be largely completed at the stage of the
confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to
the Prosecutor to submit this evidence to the Pre-Trial Chamber’. 69 Previously, the Appeals
Judge Christine Van den Wyngaert to the Decision on defence application pursuant to Article 64(4) and related
requests, 26 April 2013. Judge Van den Wyngaert pointed to the failure of the Prosecutor to properly investigate the
case pursuant to Article 54(1)(a) of the Statute prior to the confirmation of charges and that the ‘inordinate amount of
totally new evidence’ disclosed to the accused at trial was an immediate consequence of this failure (para 5).
67
In favour of significantly expediting the proceedings leading to the confirmation of charges, especially by not
requiring disclosure to the suspect of the entirety of the evidence collected by the Prosecutor, see War Crimes Research
Office, The Confirmation of Charges Process at the International Criminal Court, Washington University College of
Law, June 2008, 64 ff.
<http://www.wcl.american.edu/warcrimes/icc/documents/WCROReportonConfirmationofCharges.pdf>.
68
Prosecutor v Laurent Gbagbo, ICC-02/11-01/11-432-Anx-Corr, Dissenting Opinion of Judge Fernández, Pre-Trial
Chamber I, 6 June 2013, para 14 (‘Dissenting Opinion of Judge Fernández’).
69
[emphasis added]. Mbarushimana Appeal Judgment (n 33), para. 44.

10
Chamber held that, ‘ideally, it would be desirable for the investigation to be complete by the time of
the confirmation hearing’,70 specifying, however, that, ‘this is not a requirement of the Statute’, and
that the Prosecutor’s investigation ‘may be continued beyond the confirmation hearing’. 71 In the
same Judgment, the appeal judges recognized that ‘the threshold for the confirmation of charges
[…] is lower than convictions […] and may be satisfied before the end of the investigation’. 72 From
the above jurisprudence of the Appeals Chamber, it may be deduced that the Prosecutor does not
have a legal obligation to present all her evidence at the confirmation of charges hearing or that she
put forth the strongest possible case based on a largely complete investigation.
Yet, despite the approach in Gbagbo lacking an apparent legal foundation, strengthening the role of
the confirmation of charges hearing and more generally of the pre-trial phase of a case might entail
some advantages. Indeed, presenting the strongest possible case based on a largely complete
investigation at the confirmation hearing should, in principle, contribute to the efficiency of the
confirmation process and result in a shorter preparation phase after the charges are confirmed,
before the formal commencement of the trial. 73 As observed by one commentator, most of the time
saved by preparing the case for trial would derive from an easier redactions and disclosure process,
‘as it may be expected that there are fewer differences between the Prosecutor’s case as presented at
the confirmation hearing and at trial’.74 As a result, the Trial Chamber would not be inundated with
a new amount of evidence for which the parties may request redactions to certain sensitive
information before the start of the trial. Furthermore, the more advanced the case at the time of the
confirmation hearing, the better the filtering function of the Pre-Trial Chamber will, as it will be
better prepared to evaluate a more substantial amount of evidence and decide which cases are
worthy of trial.75 Nevertheless, this is only an apparent advantage, given the delayed start of the
trials before the ICC, and is rather intangible and difficult to measure in terms of judicial economy.
Indeed, the Prosecutor is not prohibited, under the Statute and as confirmed by the Appeals
Chamber, from conducting additional investigations after the charges are confirmed and before the
trial begins.
Notwithstanding the potential benefits of the Gbagbo approach, moving the balance of the pre-trial
proceedings towards a ‘strongest possible case based on a largely complete investigation’ model
would necessarily result in a number of undesirable consequences, which are outlined as follows.
First, it would most likely result in a vast amount of evidence submitted to the Pre-Trial Chamber.
Hence, as a direct consequence, a more demanding process of evidentiary disclosure would be
established, in the course of which the Chamber would have to authorize redactions of such
evidence, as proposed by the Prosecutor, pursuant to Rule 81(2) and (4) of the Rules before
disclosing said evidence to the Defence. 76 This will, in turn, mean a longer overall confirmation of
charges hearing for this evidence. Additionally, it will presumably entail a more complex decision
under Article 61(7) of the Statute in order for the evidence to be evaluated and for the Chamber to
decide whether there are substantial grounds to believe that the suspect has committed the crimes
charged. In this regard, it should be emphasized that the suspect may be detained during the pre-trial
proceedings, if the grounds to deprive him or her of liberty still exist, as provided by Article 58(1)
(b) of the Statute.
Second, the presentation of an advanced case at the confirmation stage would have consequences
for the evidence to be submitted in support of the charges, both from a qualitative and quantitative
70
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-568, Judgment on the Prosecutor's appeal against the decision
of Pre-Trial Chamber I entitled 'Decision Establishing General Principles Governing Applications to Restrict Disclosure
pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence’, Appeals Chamber, 13 October 2006, para 54.
71
ibid, para 2.
72
ibid, para 56.
73
See Volker Nerlich, ‘The Confirmation of Charges Procedure at the International Criminal Court: Advance or
Failure?’ (2012) 10(5) Journal of International Criminal Justice, 1339-1356, 1355.
74
ibid 1355.
75
ibid 1356.
76
Ibid 1352.

11
perspective. These consequences would ultimately lead to a distortion of the confirmation of
charges hearing, contrary to the purpose of Article 61 of the Statute. In order to understand these
implications, it should be recalled that one of the main differences between the legal architecture of
the confirmation of charges hearing and the trial proceedings at the ICC is that the Statute and the
RPE are more lenient with regard to the type and the quantity of evidence that can be presented by
the Prosecutor at the confirmation hearing. 77 Thus, the Prosecutor is free to present, at the
confirmation hearing, certain types of evidence and, at the same time, to withhold others, without
incurring any sanction for such decisions. More specifically, Article 61(5) of the Statute provides
that the Prosecutor ‘may rely on documentary or summary evidence and need not call the witnesses
expected to testify at the trial’.78 Furthermore, Article 61(5) and Rule 81(4) of the Rules have been
interpreted as authorizing the non-disclosure of the identity of the witnesses whose statements the
Prosecutor intends to submit in summary form. 79 It follows that the quality of the evidence that the
Prosecutor may present ‘to support each charge with sufficient evidence to establish substantial
grounds to believe that the person committed the crimes charged’, as mandated by Article 61(5), is
significantly lower than the evidence that is needed to prove that the accused is guilty beyond a
reasonable doubt.
This is not to say, however, that the Prosecutor will automatically obtain the confirmation of the
charges by relying exclusively on documentary or summary evidence in support of her allegations.
Nevertheless, it certainly indicates that this type of evidence may suffice in ‘offer[ing] concrete and
tangible proof demonstrating a clear line of reasoning underpinning [the] specific allegations’ 80 so
as to ‘thoroughly […] satisfy [the Chamber] that the allegations are sufficiently strong to commit
[the suspect] to trial’.81 After all, the rationale of Article 61(5) of the Statute is connected to the
purpose of the confirmation of charges hearing in light of the established evidentiary threshold of
substantial grounds to believe, namely, to distinguish cases that are sufficiently strong to be sent to
trial. The express authorization to rely on certain (more lenient) types of evidence to meet the
substantial grounds to believe threshold seems also to find its foundation in the drafters’ minds at
the Rome Conference, who considered Article 61(5) to be an appropriate solution to avoid the
transformation of the confirmation hearing into a trial before the trial itself. 82
Finally, this procedural structure also preserves the impartiality of the Trial Chamber seized of the
case, because if the items of evidence relied on at the confirmation hearing were exactly or largely
the same as those presented at trial ‘the Pre-Trial Chamber’s decision could influence the Trial

77
See ibid 1343. For a discussion on the type of evidence that was used in the first confirmation hearing in the Lubanga
case see Michela Miraglia, ‘Admissibility of Evidence, Standards of Proof, and Nature of the Decision in the ICC
Confirmation of Charges in Lubanga’ (2008) 6(3) Journal of International Criminal Justice 489, 496-497 (‘Miraglia’).
78
ICC Statute, Article 61(5), second sentence. See also Prosecutor v Thomas Lubanga, ICC-01/04-01/06-774,
Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled ‘Second
Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’, Appeals Chamber, 14
December 2006, para 47.
79
The Appeals Chamber has stated that ‘[t]he presentation by the Prosecutor of summaries of witness statements and
other documents at the confirmation hearing is permissible even if the identities of the relevant witnesses have not been
disclosed to the defence prior to the hearing, provided that such summaries are used in a manner that is not prejudicial
to or inconsistent with the rights of the accused and a fair and impartial trial’. See Prosecutor v Thomas Lubanga, ICC-
01/04-01/06-773, 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’, Appeals
Chamber, 14 December 2006, para 2.
80
See Adjournment Decision (n 47), para 17, recalling the well-established jurisprudence on the interpretation of the
substantial ground to believe threshold under article 61(7) of the Statute. See inter alia, Lubanga Confirmation of
Charges (n 24), para 39; Katanga and Ngudjolo Confirmation of Charges (n 24), para 65; Abu Garda Confirmation of
Charges (n 10), para 37; Mbarushimana Confirmation of Charges (n 11), para 40; Bemba Confirmation of Charges (n
25), para 29; Ruto, Kosgey and Arap Sang Confirmation of Charges (n 11), para 40.
81
Adjournment Decision (n 47), para 17; Lubanga Confirmation of Charges (n 24), para 39.
82
See Kuniji Shibahara, ‘Article 61: Confirmation of the charges before the trial’ in Otto Triffterer (ed), Commentary
on the Rome Statute of the International Criminal Court (Hart 2008) 783, 790.

12
Chamber thereby diminishing its “virginity”’. 83 A lengthy analysis of the probative value of the
evidence presented by the Prosecutor as a result of a largely complete investigation would,
therefore, fall short of findings that would be for the Trial Chamber to make instead of the Pre-Trial
chamber. Thus, a decision confirming the charges on the basis of nearly the same evidence
presented at the trial stage finds little or no meaning, as it could appear as an anticipatory finding of
the guilt of the suspect, even though, procedurally, the Pre-Trial Chamber has no power to enter a
conviction.
As recalled by Judge Fernández in her Dissenting Opinion, the Preparatory Works (Travaux
Préparatoires) to the Statute also seem to suggest that providing the Pre-Trial Chamber and, by
implication, the Defence, with the entire case file of the Prosecutor was not considered to be an
optimal solution, as it would have entailed unnecessary delays in the smooth conduct of the pre-trial
proceedings ‘if the evidence collected in the case was excessive’. 84 The evidence would be collected
and disclosed at the pre-trial phase of the case only to be re-disclosed once again before the start of
the trial, especially in instances in which the Trial Chamber in the case has a different disclosure
system. The litigation before the confirmation hearing and at the hearing itself would increase as a
result of the more extensive investigations conducted by the Prosecutor and the subsequent
disclosure of this evidence. This could potentially also multiply the number of interlocutory appeals
lodged by the parties during the pre-trial stage of the case.
In light of the foregoing considerations, what can be deemed as desirable or expected by the
Prosecutor at the confirmation hearing is something antithetic to presenting all evidence or the
strongest case based on a largely complete investigation. Rather, it would be suitable that the
Prosecutor submit her case as soon as it is believed to be sufficiently supported by evidence,
including the type of evidence expressly mentioned by Article 61(5) of the Statute, in order to meet
the substantial grounds to believe threshold. This approach seems also to comply with, and
reconcile, different instances in the context of a criminal proceeding. On the one hand, the right of
the victims to receive justice and to participate in the proceedings would be safeguarded and
implemented within a reasonable time. On the other hand, in so far as there is sufficient evidence to
satisfy the evidentiary threshold for a case to proceed to the trial phase, no prejudice to the rights of
the Defence can occur, provided that the suspect has the opportunity to exercise his or her rights
during the course of the pre-trial phase, as provided by Articles 61(6) and 67 of the Statute.

The Decision on the Confirmation of Charges in Search of its Nature and Purpose

The traditional approach to the confirmation hearing and to its nature and purpose can be explained
by referring to observations made by the different Pre-Trial Chambers in recent years. As clarified
by a consolidated ICC jurisprudence, the starting assumption in these years has been that the
confirmation hearing is neither a trial before the trial nor a mini-trial. 85 This is all the most logical to
state, as the confirmation hearing should not be a duplication of the trial, otherwise it would obviate
the need to have a pre-trial stage of proceedings as provided for in the Statute. Thus, judges sitting
in Pre-Trial Chamber are not called to decide on whether the person is guilty beyond a reasonable
doubt of the crimes allegedly committed. To put it in other words, the Pre-Trial Chamber does not
have the authority to enter into a premature in-depth analysis of the guilt of the suspect or to
evaluate whether the evidence is sufficient to sustain a future conviction at trial. 86
By referring to the UN High Commission for Human Rights, in the Lubanga case, Pre-Trial
Chamber I found that the confirmation of charges is limited to committing for trial only those
83
Miraglia (n 77) 497.
84
See Report of the Preparatory Committee on the Establishment of an Intemational Criminal Court, vol I, para 232.
See also Dissenting Opinion of Judge Fernández (n 68).
85
See, inter alia, Prosecutor v Katanga, ICC-01/04-01/07-412, Decision on the admissibility for the confirmation
hearing of the transcripts of interview of deceased Witness 12, Pre-Trial Chamber I, 18 April 2008, para 64.
86
Abu Garda Confirmation of Charges (n 11), para 40.

13
suspects against whom sufficiently compelling charges going beyond mere theory or suspicion have
been brought.87 Pre-Trial Chambers have frequently highlighted that the confirmation hearing aims
to protect the suspect ‘against wrongful prosecution and ensuring judicial economy by allowing to
distinguish between cases that should go to trial from those that should not’.88 In this regard, it can
be argued that the main purpose of the confirmation decision is to protect the rights of the Defence
against wrongful and wholly unfounded charges by putting the Prosecutor’s work under early
scrutiny. In order to achieve this objective, the confirmation hearing must ensure that ‘no case
proceeds to trial without sufficient evidence to establish substantial grounds to believe that the
person committed the crime or crimes with which he has been charged’.89
The Adjournment Decision in the Gbagbo case has changed this interpretation, opening the door to
a completely new way of conducting the pre-trial stage and the confirmation hearing in particular.
Both approaches to the confirmation of charges hearing have their own peculiar effects on the
nature and purpose of the pre-trial stage of the proceedings before the ICC. The traditional approach
interprets the confirmation hearing and its subsequent decision as a ‘ritual’ or ‘procedural’ decision,
aiming at filtering the cases presented by the Prosecutor in such a manner so as to safeguard the
right of the suspect against wrongful or frivolous prosecutions. It also preserves considerations of
judicial economy, which justify the conduct of an entire trial only in cases of sufficiently well-
founded allegations, bearing in mind the incompleteness of the investigations at the pre-trial stage
of the proceedings. As the evidentiary threshold for confirming the charges and committing a
suspect for trial is, by its very nature, lower than the standard of proof required to enter a conviction
by a Trial Chamber, doubts concerning the facts as alleged by the Prosecutor against the defendant
in light of the evidence presented will always remain at the end of the pre-trial phase, even when the
charges are confirmed. The rationale of the traditional approach can thus be seen in assessing
whether the allegations, as presented, are sufficiently strong so that resolving the natural
contradictions of written evidence by calling witnesses to give live testimony would require a full
trial. This interpretation reflects what can be referred to as the principle of non-superfluity of trial
proceedings. According to this principle, the trial becomes the main forum in which the Trial
Chamber, by way of fully testing the evidence in courtroom, ascertains the facts that were
confirmed by the Pre-Trial Chamber, which may not have been completely clarified due to the
incompleteness of the investigation, the lower evidentiary threshold applicable at the pre-trial stage
and the different and more lenient type of evidence allowed at said stage.
The Gbagbo approach certainly ensures a better safeguard of the rights of the suspect against
wrongful or unfounded prosecutions, because the Pre-Trial Chamber is called on to decide on the
sufficiency of evidence to commit the person for trial on the basis of a largely complete
investigation and, thus, on a trial-ready evidence. However, this approach has the potential effect of
transforming the confirmation decision from a ritual or procedural decision into a determination on
the merits of the case and, therefore, oriented to a preliminary assessment of the guilt or innocence
of the suspect. Accordingly, the confirmation of charges hearing would be grounded on an
evaluation of the evidence collected by the parties in light of the likelihood of a conviction at trial,
rather than on the non-superfluity of a trial, which would imply clearing up any contradiction
encapsulated in the evidence. In this respect, it may also be noted that the procedural structure of
trial proceedings before the ICC is closer to the adversarial system rather than the inquisitorial
system. This means that the evidence is mainly elicited at trial by way of examination of the
witnesses whose written statements and other documentation have been used by the Pre-Trial
Chamber to confirm the charges against the suspect. Accordingly, the more conflated the
investigation burden is for the Prosecutor at the confirmation hearing (thus making it closer to a
miniature trial), the more likely the actual trial is to become a mere stump-rubbing of the findings
made by the Pre-Trial Chamber, or at least a superfluous re-discussion thereof.
87
Lubanga Confirmation of Charges (n 24), para 37.
88
Bemba Confirmation of Charges (n 25), para 28.
89
Katanga and Ngudjolo Confirmation of Charges (n 24), para 63.

14
An Unsolved Issue: the Scope of the Decision to Adjourn the Hearing

The Majority of Pre-Trial Chamber I when adjourning the hearing pursuant to Article 61(7)(c)(i) of
the Statute, requested that the Prosecutor ‘consider providing, to the extent possible, further
evidence or conducting further investigation’ regarding a number of specific issues. 90 It is of
interest to analyze not just the reasons why Pre-Trial Chamber I resorted to the mechanism provided
for in Article 61(7)(c)(i) of the Statute, but in particular the modalities in which the Majority of the
Chamber put this mechanism in place. The wording of this provision relates to providing further
evidence or conducting further investigation ‘in respect of a particular charge’. It may be questioned
whether the expression ‘in respect of a particular charge’ contemplates the possibility for the Pre-
Trial Chamber to actually list the precise issues in respect of which the further investigatory steps
should be taken by the Prosecutor. In other words, this appears to be an instruction to the Prosecutor
to undertake certain investigative activities as opposed to others, according to the issues that, in the
view of the judges, must be investigated further and substantiated with evidence. 91 This closely
resembles the role of an investigative chamber, which is not contemplated by the Rome Statute. 92 It
may be argued that, at best, the Pre-Trial Chamber can, on the basis of the evidence presented at the
confirmation hearing, find that one or more allegations underpinning the charges levied by the
Prosecutor against the suspect merit further investigation. However, suggesting what investigative
steps or what issues should be explored further (and how) by the Prosecutor could be said to
undermine the independence of the OTP and prejudice the impartiality of the Pre-Trial Chamber
which determines the confirmation of the charges.
The clash with the independence of the Prosecutor is particularly striking, especially when seen
from the vantage point of Prosecutor’s liberty in terms of selection of the evidence at the
confirmation hearing. Indeed, Article 61(5) of the Statute is designed to provide the Prosecutor with
the options to call witnesses who offer live testimony at the confirmation hearing, to submit the
witness statements taken from them or to otherwise submit summaries of their statement(s) in lieu
of the whole statement.93 As a matter of prosecutorial policy, it is highly foreseeable that, at the pre-
trial phase of a case, the Prosecutor will not opt to call any of her witnesses live nor will she want at
all to submit as evidence the material provided by some of the witnesses. In other words, the
Prosecutor is likely to choose to rely on a given amount of evidence while preserving the rest for
trial, if any at all. This may be due to a number of reasons. First, calling one or more witnesses at
the confirmation hearing may mean to ‘burn’ the witness. Calling a viva voce witness implies, for
example, that in the event the charges are confirmed and the case proceeds to trial, the transcript of
the testimony given at the confirmation of charges hearing will be taken into account by the Trial
Chamber and the Defence will conduct its cross-examination based, inter alia, on the deposition
that the witness provided before the Pre-Trial Chamber, thereby potentially exposing the
prosecution’s witness to contradictions and inconsistencies in his or her evidence. It is, therefore,
generally in the interest of the Prosecutor not to call witnesses live at the pre-trial phase of the case.
Second, the Prosecutor may not rely at all on some evidence, be it in the form of statements,
sketches, maps or audio/video material provided by a given witness. One reason for this could be
that additional protective measures may be required before safely disclosing his or her evidence to
the Defence. Alternatively, the Prosecutor may wish to conduct further investigations regarding this
specific witness and the related material, in order to verify his or her credibility and reliability or to
90
Adjournment Decision (n 47), para 44.
91
See ibid, para 44(6). As a matter of example, in respect one of the incidents charges by the Prosecutor, the Majority of
Pre-Trial Chamber I requested ‘any forensic evidence indicating who fired the ammunitions and what their alleged
target was’.
92
See also Dissenting Opinion of Judge Fernández (n 68), para 51.
93
This scenario is particularly common in case the security situation of a witness remains volatile and does not warrant
the disclosure to the defence of the entirety of the evidence provided by said person.

15
contact prospective potential witnesses who may be mentioned in such material. Third, as recalled
above, calling live witnesses or relying on evidence with, in principle, a higher probative value, is
simply not required by the letter of Article 61(5) of the Statute, which allows the Prosecutor to
submit only the evidence that she believes to be sufficient to meet the substantial grounds to believe
threshold for the charges to be confirmed.
Importantly, both the quality and the amount of evidence to be submitted for the purpose of the
confirmation of charges hearing and, therefore to be disclosed to the Defence, are not directly
proportional to the full exercise of the rights of the Defence. To put it differently, if the Prosecutor
intends to rely on a relatively small amount of material at the confirmation hearing, for example,
which consists only of indirect evidence, this is, by itself, not necessarily beneficial or prejudicial
for the Defence. This is so upon the condition that the Prosecutor investigated incriminating and
exonerating circumstances equally and, accordingly, communicated to the suspect the exculpatory
material in her possession, as dictated by Article 54(1)(a) in combination with Article 67(2) of the
Statute. In addition, should the Prosecutor consider that mainly documentary evidence is sufficient
to support the charges brought against the suspect, this must be understood as a deliberate choice
subject to the scrutiny of the evidence by the relevant Pre-Trial Chamber.

Concluding Remarks

This study critically assessed the recent evolution of the ICC, which for the first time, in 2012,
provided a stricter interpretation of the evidence that is required at the confirmation of charges
stage. Whilst the traditional approach is characterized by a limited role for the Pre-Trial Chamber,
the Gbagbo decision tends to signal a significant shift in the balance of the case preparation into the
domain of pre-trial proceedings. Indeed, by distorting the burden of the confirmation of charges
hearing and overloading the pre-trial phase of a case, the Gbabgo approach appears to contradict
what all pre-trial chambers had consistently stated previously, namely that the confirmation of
charges hearing is not a mini-trial or a trial before the trial.
While the departure exhibited in the Gbagbo case offers a series of plausible but hypothetical
advantages and guarantees, it does not appear all that persuasive. The reasons for such criticism are
four-pronged.
First, in light of the normative framework provided by the Statute and Rules, the requirement that -
for the purposes of the confirmation of charges - the Prosecutor must present all her evidence or her
strongest case based on a largely complete investigation lacks any apparent legal basis.
Second, a consequence of the Gbagbo approach would be a vast amount of evidence placed before
Pre-Trial Chamber. As a direct implication of the increased number of items collected, a heavier
process of disclosure of evidence would be instituted, in the course of which the Chamber would
have to authorize redactions of the evidence, as proposed by the Prosecutor, pursuant to Rule 81(2)
and (4) of the Rules before disclosing it to the Defence. All of this would then necessarily result in a
more complex confirmation hearing, in which the parties would most likely intend to litigate the
charges at length, on the basis of the amount of evidence disclosed. Also, given the wider
evidentiary record, the parties might opt for calling more live testimony by witnesses in order to
prove or challenge the allegations made.
Third, such an evolution arguably contrasts with Article 61(5) of the Statute. The express
authorization to rely on certain (more lenient) types of evidence to meet the substantial grounds to
believe seems also to find its foundation in the drafters’ minds at the Rome Conference, who
viewed Article 61(5) as an appropriate solution to avoid the transformation of the confirmation
hearing into a trial before the trial. Indeed, Article 61(5) was drafted in such a way so as to establish
a limit on the amount of evidence presented before the Pre-Trial Chamber. As this limitation could
not be introduced by imposing an arbitrary amount of pages or items of evidence to be submitted at

16
the confirmation hearing, it was simply suggested that a certain type of evidence would be
sufficient, in principle, for a case to pass the scrutiny of the pre-trial judges and to proceed to trial.
Fourth, the requirement that the items of evidence relied on at the confirmation hearing are exactly,
or largely the same as those presented at trial, might entail the risk that the Pre-Trial Chamber’s
decision influences the conduct of the trial by the Trial Chamber, thereby diminishing its ‘virginity’.
Indeed, the confirmation of charges hearing, which should primarily have a filtering function,
would be transformed into an anticipation of the trial, and the decision under Article 61(7) of
Statute would become a ‘miniature’ judgment so to speak, given that the evidentiary basis would be
constituted by virtually the same amount of evidence that the Prosecutor would rely on at trial. The
only differences between such a model of confirmation hearing and the proper trial would be that
the confirmation proceedings would consist mostly of written and documentary evidence instead of
being entirely based on oral evidence, and that no decision regarding the guilt or innocence of the
suspect would be made at the confirmation stage.
In conclusion, some questions arise as to the implementation of the Gbagbo approach in the practice
of the case. How would a Pre-Trial Chamber check, in the absence of an explicit legal foundation or
a binding pronouncement by the Appeals Chamber, whether the Prosecutor complied with her
obligation or expectation of presenting all her evidence or the best possible case based on a largely
complete investigation? What standards, if any, would govern such an assessment? And what would
be the procedural sanction to be imposed by the Chamber upon the Prosecutor for her failure to do
so? Declining to confirm the charges or adjourning the hearing may only be done based on the
confirmation of charges hearing, and on whether there is sufficient evidence to establish substantial
grounds to believe that the person committed each of the crimes charged, as stated in Article 61(7)
of the Statute.

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