MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism  

In my view, the rights of these 700 plus victims to express their views and concerns, as well as their rights to truth, justice and reparations, and to have an effective remedy, were at stake in this case. Having placed emphasis only on the rights of the accused, Judges Henderson and Tarfusser prematurely terminated the proceedings, without providing reasons. In doing so, they did not seem to have considered the rights of the victims. I recall the human rights are interconnected and indivisible, and there is no one human right that is more important than another. In my view, in no case can the rights of two accused be preferred over the rights of more than 700 victims without more, especially through a procedure that is not envisioned in the Statute, while the rights of the victims are duly established under the Statute.… [E]ven if Judges Henderson and Tarfusser, being minded to acquit, had concerns as to the liberty of the accused, there was no need to terminate the trial prematurely as the Trial Chamber had been seized of submissions on the continued detention of the accused and the judges could have granted provisional release. Instead, Judges Henderson and Tarfusser decided not to entertain such submissions and rather acquit the accused, halfway through the trial, under the no case to answer motions.

Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza

 

Occasionally a circumstance comes along when not correcting the record, when not speaking truth to power, when remaining silent out of fear of ruffling powerful feathers, is as uncomfortable as trekking in shoes a half-size too small, with a stone, or worse yet, a sharp thorn, in them. Here is one of those occasions. Aside from finding Judge Luz del Carmen Ibáñez Carranza’s understanding of no case to answer procedure at the ICC flawed and ill-conceived, as a defence lawyer I find her above quoted dissenting remarks shocking, even scandalous. So, let me bring some clarity on the seemingly pesky no case to answer procedure by discussing its purpose and why under the adopted ICC regime it is not only appropriate, but indispensable. I will then deal with Judge Ibáñez Carranza’s comments which seemingly suggest that judges should, in some instances, apply a utilitarianism test when deciding to what extent they should afford an accused their right to the presumption of innocence and whether, for the sake of the victims, the prosecution should be given a pass when unable to meet its burden of proof.

Evolution (or devolution) of the no case to answer procedure at the ICTY

The ICC’s Ruto and Sang Trial Chamber adopted the standard of proof for the no case to answer procedure in reference to the International Criminal Tribunal for the former Yugoslavia’s (“ICTY”) Rule 98bis. So, I will start the discussion here before turning to the question whether the “par excellence” common law procedure of no case to answer (as Judge Ibáñez Carranza puts it) applies under the ICC procedural regime.

At the ICTY, Rule 98bis provided that the defence may seek or the Trial Chamber proprio motu could order a judgement of acquittal (essentially the same as no case to answer) at the end of the prosecution’s case-in-chief.1 ICTY Rules of Procedure and Evidence, 8 July 2015, IT/32/Rev.13, Rule 98bis (adopted 10 July 1998). Originally, Rule 98bis permitted a judgement of acquittal on all or some of the charges at the end of the prosecution’s case, if the Trial Chamber found the evidence “insufficient to sustain a conviction” on one or more of the offences charged. The test for determining whether the evidence is insufficient to sustain a conviction was interpreted as “not whether the trier of fact would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could….”2 Prosecutor v. Jelisić, IT-95-10-A, Judgement, 5 July 2001, para. 37 (emphasis added).

In December 2004, Rule 98bis was amended to provide that the Trial Chamber would enter a judgement of acquittal on any count if it found “no evidence capable of supporting a conviction.”3 ICTY Rules of Procedure and Evidence, 8 July 2015, IT/32/Rev.50, Rule 98bis (adopted 10 July 1998, amended 17 November 1999, amended 8 December 2004) (emphasis added).  Ironically, some Trial Chambers misguidedly took this to mean a lowering of the standard of proof in further favor of the prosecution, holding that only evidence presented by the prosecution should be considered in a vacuum, disregarding evidence adduced by the defence through confrontation of the prosecution witnesses or documents proposed by the defence and admitted by the Trial Chamber during the prosecution’s case.4 Prosecutor v. Prlić et al., IT-04-74-T, Transcript, 20 February 2008, p. 27206 (emphasis added): “At the 98 bis stage, the Trial Chamber only considers the Prosecution evidence submitted by the Prosecution and not the evidence adduced by the Defence.” In other words, the judgement of acquittal / no case to answer procedure was turned into a re-confirmation process.

This begged several questions:

  • If in confirming an indictment a screening and weighing of the prosecution evidence was made to ensure the very low threshold required to indict (lending much truth to the adage that even a ham sandwich could be indicted), why would the Trial Chamber need to hear months and years of prosecution evidence to then assess it in a vacuum to determine whether the prosecution’s case should go forward?
  • Why go through the charade of engaging in a make-believe perversion of giving qualitative credence of reliability to evidence discredited by the defence through confrontation?
  • Should the accused be forced – despite the lack of credible evidence to support the prosecution’s case, which, incidentally, does not exclude the assessment of additional evidence produced by the Trial Chamber – to put on a case in the hopes of assisting the prosecution in meeting its burden of proof?
  • And why should the defence have to decide whether to roll the dice in resting and not putting on a case or risk weakening its case (the evidence it adduced during prosecution’s case) by calling witnesses and producing evidence, which, invariably, will result in giving the prosecution another bite at the apple to resuscitate its case through rebuttal evidence?

Articulating the no case to answer procedure at the ICC (Ruto and Sang)

The Ruto and Sang Trial Chamber articulated the proper test for no case to answer proceedings: “whether there is evidence on which a reasonable Trial Chamber could convict.”5 Prosecutor v. Ruto and Sang, ICC-01/09-01/20-1334, Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedures on ‘No Case to Answer’ Motions), 3 June 2014 (“Ruto & Sang Decision No.5), para. 32. While neither the Rome Statute nor the Rules of Procedure and Evidence (“Rules”) explicitly set out the no case to answer procedure, the Ruto and Sang Trial Chamber held that its basis lies in Articles 66(1) and 67(1) concerning the principles of the presumption of innocence and the right to a fair and expeditious trial.6 Ruto & Sang Decision No.5, para. 12. The rationale being that “an accused should not be called upon to answer a charge when the evidence presented by the Prosecution is substantively insufficient to engage the need for the defence to mount a defence case.”7 Id. As an aside, might I also add that this reflects the rationale behind the confirmation of charges procedure adopted by the ICC – protecting the rights of the accused against wrongful and unfounded charges by not sending to trial cases built on mere theory, suspicion, and flimsy evidence.

When articulating the no case to answer procedure, the Ruto and Sang Trial Chamber held that it “does not entail an evaluation of the strength of the evidence presented, especially as regards exhaustive questions of credibility or reliability;”8 Id., para. 24. matters that go to the strength of the evidence go to the weight to be accorded in final deliberations in light of the entirety of the evidence presented.9 Id. The Trial Chamber should take the prosecution’s evidence “at its highest” and “‘assume that the prosecution’s evidence was entitled to credence unless incapable of belief’ by any reasonable view.”10 Id. However, when applying the no case to answer procedure, Judges Fremr and Eboe-Osuji held that the Trial Chamber should assess the evidence, including its credibility and reliability.

Judge Eboe-Osuji clarified that the Trial Chamber in its no case to answer scrutiny is free to consider “corroborations, contradictions, … and other factors that positively or negatively affect credibility or reliability.”11 Prosecutor v. Ruto and Sang, ICC-01/09-01/11-2027-Red-Corr, Decision on Defence Applications for Judgments of Acquittal, 5 April 2016 (“Ruto & Sang Decision”), Separate Opinion of Judge Eboe-Osuji, para. 115. In his view, this review “should be comprehensive, in order to rule out that the case for the prosecution is weak and that the trial must be stopped for that reason.”12 Id. He also reasoned that its systematic arrangement with the Pre-Trial Chamber is such that each chamber entails an evaluation of credibility and reliability within its respective remit.13 Id., paras. 121-22. Simply, since the Pre-Trial Chamber is expected to engage in a “qualitative assessment” of each piece of evidence, evaluating its credibility, reliability, truthfulness, trustworthiness, and voluntariness,14 Id., para. 121, citing Prosecutor v. Ruto and Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Statute, 23 January 2012, paras. 61, 67-68. it would be nonsensical for the Trial Chamber to do less when determining whether a trial on confirmed charges should continue after the prosecution has rested its case.15 Ruto & Sang Decision, Separate Opinion of Judge Eboe-Osuji, para. 122. It thus follows that “at its highest” does not mean “standing the prosecution’s evidence up on a pedestal” but appreciating its case as a whole, including its strengths and weaknesses.16 Id., para. 124.

Elaborating on the no case to answer procedure (Gbagbo and Blé Goudé)

In Gbagbo and Blé Goudé, the majority engaged “in a full review of the evidence submitted and relied upon by the Prosecutor.”17 Prosecutor v. Gbagbo and Blé Goudé, ICC-02/11-01/15-1263-AnxB-Red, Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, Reasons of Judge Geoffrey Henderson (“Reasons of Judge Henderson”), 16 July 2019, para. 8. See also para. 30 where Judge Henderson notes that he does not find this approach at odds with evaluating the prosecution’s evidence at “its highest/most compelling.” Judge Geoffrey Henderson, writing a separate opinion (as did Judge Cuno Tarfusser),18 Prosecutor v. Gbagbo and Blé Goudé, ICC-02/11-01/15-1263-AnxA-Red, Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, Opinion of Judge Cuno Tarfusser (“Reasons of Judge Tarfusser”), 16 July 2019. noted that this standard of review was largely necessary because of the lack of admissibility rulings on evidence during trial and the Trial Chamber’s practice of imposing few limitations on the parties’ questioning of witnesses.19 Reasons of Judge Henderson, paras. 4–6, 21, 29. See also paras. 3 and 7, where Judge Henderson also considered it strange if the Trial Chamber could not consider issues of credibility and reliability of the prosecution’s evidence when (1) the Pre-Trial Chamber ‘may evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses’ at the confirmation stage; and (2) because the Trial Chamber had accepted into evidence a significant number of prior recorded statements without assessing the reliability of their content. There being no presumption as to whether the evidence admitted had even a minimum of probative value, to have simply applied a mere prima facie review of the evidence for the purposes of a no case to answer motion when it would not necessarily be able to rely on such evidence at the end of trial evaluation, would, in Judge Henderson’s view, be “highly artificial.”20 Reasons of Judge Henderson, para. 5. Contrastingly, dissenting Judge Olga Herrera Carbuccia considered that assessing “the credibility of evidence at this stage of the proceedings is exceptional,”21 Prosecutor v. Gbagbo and Blé Goudé, ICC-02/11-01/15-1263-AnxC-Red, Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, Dissenting Opinion of Judge Herrera Carbuccia (“Dissenting Opinion of Judge Carbuccia”), 16 July 2019, para. 27. because in her opinion, evidence must be assessed “in the context of the entire trial proceedings”22 Dissenting Opinion of Judge Herrera Carbuccia, para. 29. – i.e. at the end of the trial after all evidence is admitted.23 Dissenting Opinion of Judge Herrera Carbuccia, para. 47.

Although not of any significance to the ultimate findings and conclusions in Gbagbo and Blé Goudé, divergent approaches in Ruto and Sang and Gbagbo and Blé Goudé are worth noting.

In Ruto and Sang, the defence requested a judgment of acquittal after the close of the prosecution’s case.24 Ruto & Sang Decision, paras. 7-8. The Trial Chamber, rather that acquitting, declared a mistrial and “vacated” the charges “without prejudice to [the accused’s] presumption of innocence or the Prosecutor’s right to re-prosecute the case at a later time.”25 Ruto & Sang Decision, para. 464. Obviously, this left the door open for a potential reopening of the case.

Conversely, in Gbagbo and Blé Goudé, the Trial Chamber proprio motu ordered the prosecution to first illustrate its case “detailing the evidence in support of the charges”26 Prosecutor v. Gbagbo and Blé Goudé, ICC-02/11-01/15-1263, Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the Blé Goudé Defence no case to answer motion, 16 July 2019 (“Gbagbo and Blé Goudé Reasons”), para. 21. before giving the defence the opportunity to “address issues for which, in their view, the evidence presented by the Prosecutor is not sufficient to sustain a conviction.”27 Gbagbo and Blé Goudé Reasons, para. 24.

Unlike the Ruto and Sang Trial Chamber, the Gbagbo and Blé Goudé Trial Chamber (by majority) acquitted the accused on all charges.28 Gbagbo and Blé Goudé Reasons, p. 8. Judge Henderson reasoned in his separate opinion that “even though a decision that there is no case to answer is not a formal judgment of acquittal on the basis of the application of the beyond the reasonable doubt standard … it has an equivalent legal effect in that the accused is formally cleared of all charges and cannot be tried again for the same facts and circumstances.”29 Reasons of Judge Henderson, para. 17. Judge Tarfusser took the same view, reasoning that the no case to answer procedure applied in Gbagbo and Blé Goudé “was never meant to replicate the so-called ‘Ruto and Sang model’, in spite of the sometimes neutral if not ambiguous formulas which were necessary en route to make the trial progress towards its right conclusion.”30 Reasons of Judge Tarfusser, para. 67.

Dissenting, Judge Herrera Carbuccia misapprehended the purpose of a judgment of acquittal / no case to answer review (as Judge Ibáñez Carranza does in her dissent), opining that a proper assessment of the evidence could only come at the conclusion of the case after all the evidence is admitted31Dissenting Opinion of Judge Herrera Carbuccia, para. 47. – as if the ICC operated under a strictly civil law procedure and not a party-driven adversarial one.

Now, with this background in mind, it is time to address two questions posed by Judge Ibáñez Carranza’s comments: (1) is the no case answer procedure envisioned in the Statute? and (2) can the rights of two accused be preferred over the rights of more than 700 victims?

Is the no case to answer procedure envisioned in the Rome Statute?

The short answer is yes.

Considering that there are numerous and distinct variations of common law and civil law traditions, it may be better to view – in broad terms – inquisitorial / civil law-based traditions as judge-controlled truth-seeking procedures, and adversarial / common law-based traditions as party-driven procedures where the onus is on the prosecution to meet its burden of proof. To be clear, neither tradition in its purest form is found at the international(ized) criminal courts or tribunals, including the ICC. All have a variation and an amalgamation of the two traditions. The only judge-controlling, truth-seeking, inquisitorial procedure I am aware of is found at the Extraordinary Chambers in the Courts of Cambodia, though it too has incorporated a hodgepodge of adversarial modalities.32 Bringing Domestic Cases into Compliance with International Standards, 2 Cambodia Law and Policy Journal 45 (December 2014).

Judge Ibáñez Carranza’s opines that the no case to answer procedure is “a common law institution par excellence,” whereas the adopted ICC criminal procedure reflects “a mixture of all the systems of the world.” So what? Let’s all agree that the no case to answer procedure has its historic roots in the common law. Again, so what? Setting labels aside, the trial procedure adopted by the ICC is a party-driven, adversarial procedure where the parties (prosecution and defence) have their own case.

This might not sit well with some civil law judges who are used to being in total control as they go about searching for the truth to their intimate conviction with (at the risk of oversimplifying and offending) little to no help from the prosecution and defence at trial.

The Rome Statute and the Rules provide sufficient constructive ambiguity as to how trials should be conducted depending on the serendipitous composition of the Trial Chamber, i.e., more adversarial or more inquisitorial. Articles 64(3)(a) and 64(8)(b) and Rule 140 were intended “to favour the development of original or innovative judicial practices…, promote genuine procedural consensus by the judges and parties”33 Fran[c]k Terrier, Powers of the Trial Chamber in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds) The Rome Statute of the International Criminal Court: A Commentary, Volume II (Oxford University Press (2002), 1268. and enable the ICC to “develop its own rules in the light of its unique experience.”34 Peter Lewis, Trial Procedure in Roy S. Lee (ed), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers Inc 2001), 549. While this innovative judicial flexibility promotes more disharmony than harmony, the ICC hybrid trial procedure, mailable as it may be, remains party driven – not so much because of the adopted adversarial modalities commonly associated during trial proceedings, but because of the core principles of adversarial procedures underpinning the ICC procedure.

This does not mean that there is no judicial remit to intervene when deemed necessary to assist in getting to the truth. As with other hybrid adversarial procedures adopted by the international(ized) tribunals, the ICC procedure exhibits elements of schizophrenia: placing the burden of proof on the prosecution (as in adversarial proceedings), while permitting judges to engage in truth-seeking activities (as in inquisitorial proceedings). In particular, Articles 64(6)(b), 64(6)(d), and 69(3), and Rule 140(2), when read together, provide support for an interpretation that the judges have an obligation to ensure that all evidence that may be obtainable and relevant for the decision – irrespective of what is adduced by the parties – should be considered so the truth can emerge. The onus would be on the judges – much like in civil law systems – to be persuaded that they have done all that is necessary, despite the prosecution having the burden of proof, to prove or disprove the charges (who’s burden of proof is it anyway?). Whether the Rome Statute and Rules provide for an ill-considered inquisitorial truth-seeking accommodation contradiction (who’s burden of proof is it anyway), is not without controversy. Excessive and intrusive judicial interventions often lead to perceptions of being pro-prosecution / pro-victim.

But be that as it may, the hybrid nature of the party-driven adversarial procedure at the ICC does in fact provide the victims the added assurances of victims’ justice in the absence of a defence case – which, incidentally, is optional. What do I mean? As the prosecution is putting on its case, nothing prevents the Trial Chamber from calling witnesses or admitting documentary evidence it deems necessary for finding the truth. Indeed, throughout the presentation of the prosecution case, the Trial Chamber can and does intervene with questions and references to documentary evidence. So, where is the problem as expressed by Judge Ibáñez Carranza?

The drafters of the Rome Statute obviously sought to strike a balance in crafting a hybrid procedure where the prosecution would be compelled to assist in determining the truth by being fully transparent and thus eliminating the adversarial pitfalls that give license to the prosecution to employ techniques such as withholding disclosure material for tactical reasons,35 See Prosecutor v. Kristić, IT-98-33-A, Appeals Judgement, 19 April 2004, para. 152. while concurrently allowing the accused to have the full panoply of his or her fair trial rights – including having precise notice of what exactly and based on what evidence he or she needs to defend against – as opposed to being forced to unwisely put on a defence that is ill-suited or ill-conceived.

Now it may seem oxymoronic from a civil law perspective that a call for no case to answer would come before all the evidence is admitted for the judges’ consideration. However, considering that in adversarial (party-driven) proceedings the prosecution bears the burden of proof, it makes perfect sense that the prosecution must first adduce sufficient evidence that could lead to a conviction. Only after hearing the prosecution’s case and assessing the quality of the prosecution’s evidence, can the defence intelligently decide whether and to what extent it should put on a defence case. But even if the defence does not prevail on its no case to answer submission, it could opt to not put on a case and yet still achieve an acquittal based on the evidence being evaluated at the highest level in determining whether the prosecution proved the charges beyond a reasonable doubt.

The Trial Chambers must hold the prosecution’s feet to the fire, requiring it to present its entire case as set out in its pre-trial brief, and to do so in its case-in-chief. This is why compelling the defence to disclose its theory and strategy of the defence case at the pre-trial stage – before having heard the prosecution’s case, before the prosecution survives a no case to answer challenge, and before the defence is afforded the opportunity to assess the quality of evidence adduced at trial by the prosecution (inclusive of which is the counterevidence resulting from cross-examination and questioning by the judges) – eviscerates the accused’s fair trial rights.

Should the rights of two accused be preferred over the rights of more than 700 victims?

 The answer falls into the it depends category.

When the prosecution fails to meet its burden against an accused in cases in which there are hundreds or even thousands of victims, judges should not be concerned with the numbers of victims who, regrettably, will not get justice.

The prosecution should have the evidence to convict before seeking to have the charges confirmed. Since the prosecution is the sole, independent captain of its vessel, it decides who to charge, when to charge, what crimes to charge, which evidence it will produce at trial, how it will structure its case, what strategy it will pursue, and so on. The ICC has adopted adversarial proceedings – not to be mistaken with common law proceedings (a term often erroneously, and at times derisively, invoked by some  judges from civil law traditions) – and when the prosecution fails to meet its burden of proof, the Trial Chamber has no choice but to acquit or dismiss the charges. Neither the Rome Statute – nor the statute of any other international(ized) criminal court or tribunal I am aware of – provides for a utilitarianism gravity scale, allowing judges to overlook the weaknesses of the prosecution’s case and nonetheless decide in its favor. Thus, the suggestion that Judges Henderson and Tarfusser did anything illicit or ignoble because in their view – as independent judges neither swayed by favor nor passion – the prosecution had failed to meet its requisite burden of proof at the close of its case-in-chief, is erroneous and chilling.

What I find disturbing as a defence counsel are Judge Ibáñez Carranza’s remarks that “in no case can the rights of two accused be preferred over the rights of more than 700 victims without more…” which cannot but foster a perception of a judicial inclination for interpreting the procedure and applying the law in criminal proceedings through an inquisitorial victim-oriented / humanitarian-centered prism – applying a balancing test if you will, where the fair trial rights of the accused are to be weighed against and may have to give way to the rights of the victims.

Judge Ibáñez Carranza does not hesitate to share her victim-oriented / humanitarian-centered leanings, sanctimoniously proclaiming on her website that her separate and dissenting opinions – like her dissent in the Situation in Afghanistan, where she proclaimed that victims must have a right to appeal decisions authorizing investigations (despite not being a “party” under Article 82(1) of the Statute)36 Situation in Afghanistan, ICC-02/17-133, Dissenting opinion to the majority’s oral ruling of 5 December 2009 denying victims’ standing to appeal, 5 December 2019.  See also the Majority’s Reasons for the Appeals Chamber’s oral decision dismissing as inadmissible the victims’ appeals against the decision rejecting the authorisation of an investigation into the situation in AfghanistanICC-02/17-137, 04 March 2020 – “promote the observance and consistency with of the International Human Rights Law and High International Principles and Standards in the work of the court and the judgments and decisions, chiefly in the realms of victim’s participation, victims and reparations….”

So, at the risk of suffering the ire of an ICC Vice President, it is with no small dose of irony, if not hypocrisy, that Judge Ibáñez Carranza claims (wrongly as I have argued) that Judges Henderson and Tarfusser went off the ICC reservation by indulging in “a common law institution par excellence” neither found nor implied in the Rome Statute, while concurrently, unabashedly and unhesitatingly advocating in dissenting opinions for the application of norms and procedures not found in, envisaged by, or consistent with the letter and spirit of the Rome Statute and the wishes and expectations of the States Parties. Such thinking profoundly departs from the principles judges at any judicial institution are ethically bound by: to apply the law and procedure faithfully. Judges do make law, hopefully incrementally and within certain constraints, but to radically depart from the founding document of a court to advance a personal agenda is naked judicial legislating.

Perhaps the rub for Judge Ibáñez Carranza’s unfortunate and undeserved snide verbal assault toward her fellow judges (justifiably considered an insult by Judges Henderson and Tarfusser), lies in her misapprehension of the ICC’s procedural regime, which, I argue, not only provides for but makes indispensable the no case to answer.

Perhaps it is her belief that the Rome Statute and Rules should be applied through an inquisitorial victim-oriented / humanitarian-centered prism that encompasses utilitarianism as an overriding factor in making findings of fact and conclusions of law, tilting the balance in favor of the victims when the prosecution is unable or incapable of meeting its burden of proof.

Or perhaps I am being too sensitive and reading too much into Judge Ibáñez Carranza’s remarks.

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism  ”

  1. Wonderful post as always, Michael.

    To ignore the advantages of judicial economy, and advocating that the procedure of the ICC should hear all of the evidence, is to make a larger disservice to all victims of war crimes and crimes against humanity, who inevitably wait for years for their cases to be resolved.

    Judge Ibáñez Carranza’s comments unfortunately gloss over this issue.

  2. Important post. Many complicated issues here, but, it seems indeed, as somehow admitted by you, that you have become too sensitive with all due respect, for, you have quoted judge Carmen Ibáñez Carranza, asserting that, I quote relevant part:

    “…..the judges could have granted provisional release”

    So, it is or was, sort of compromise or reservation made by her, being aware yet, to the problematic situation, and the rights of the accused.

    Worth noting also, that in such case of “no case to answer” one must differentiate between questions of law, and facts, and evidences. It is possible, that the prosecutor deems certain conduct as offense, yet, it is not. Even if facts proven, and evidences are strong. Also, one must pay attention to the admissibility. Maybe, evidences are strong, but not admissible ( although in the ICC it is more than bit different burden or threshold).

    But, above all:

    It is possible, that, many weak and circumstantial evidences, would be consolidated finally, to very persuasive conviction. Then what ? We must wait until termination of trial, in order to conclude it.

    Thanks

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