Yet another prosecution before the International Criminal Court is in trouble. Pre-Trial Chamber I has ruled that in the case against Laurent Gbagbo, the former president of the Côte d’Ivoire, the evidence is insufficient to satisfy the requirements of article 61 of the Statute. That provision applies to the confirmation hearing stage. It is a form of preliminary hearing at which the Pre-Trial Chamber must determine that there are ‘substantial grounds’ for a finding of criminal responsibility.
The Pre-Trial Chamber was not unanimous. Judges Kaul and Van den Wyngaert were in the majority. Judge Fernández dissented.
The majority said that although the evidence presented by the Prosecutor was insufficient, it ‘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’. The hearing has been suspended and a detailed request for additional evidence given to the Prosecutor.
The majority judges noted that most of the allegations had been proven ‘solely with anonymous hearsay from NGO Reports, United Nations reports and press articles’ and it said it was ‘unable to attribute much probative value to these materials’.
One concern raised by the majority judges was the prejudice to the right of the accused to speedy trial. The proceedings have been underway for 18 months already and the trial has yet to begin. But taking into account all of the circumstances, the judges did not feel any particular action was required at this point.
This is the fifteenth case to go to the confirmation hearing stage since the Court began proceedings in 2006. Four have already been rejected and this case may become the fifth. Another case that passed the confirmation hearing stage was withdrawn at the request of the Prosecutor. Of the two that have reached the verdict stage, there has been one acquittal.
Could it be that the judges of the Pre-Trial Chamber feel the Prosecutor’s cases are not, as a general rule, properly prepared. Maybe this is meant as a signal. The judges are offering a helping hand to a Prosecutor who is struggling.