Yesterday, a Pre-Trial Chamber of the International Criminal Court refused to confirm the charges against Sudanese rebel leader Idriss Abu Garda, who was charged with respect to attacks on peacekeepers in 2007. There was no doubt the crime took place, but there simply wasn't enough evidence to make out a case that Abu Garda had been responsible for ordering or directing it, said the Chamber.
Under article 61, the Pre-Trial Chamber can confirm charges only where there is 'sufficient evidence'. It is the first time a Chamber has declined to issue any charges. In other rulings, Chambers have issued some but not other charges, and in one case a Chamber actually added charges.
Two other applications for arrest warrants concerning the same events have been pending before the Pre-Trial Chamber for well more than a year.
What happens next? One might think that Abu Garda is now 'acquitted', after having appeared (voluntarily) in The Hague and having been subjected to a two-week hearing on the confirmation of the charges. But article 61(8) says: 'Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence.'
The Rome Statute has its own double jeopardy rule, in article 20: 'Except as provided in this Statute, no person shall be tried by the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.'
But he hasn't been 'acquitted'. It's just that the Prosecutor charged him and produced evidence at a hearing and there wasn't enough of it and the Pre-Trial Chmaber said so.
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