Admissibility of Evidence,

Standard of Proof, and Nature

of the Decision in the ICC
Confirmation of Charges
in Lubanga

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Michela Miraglia*

Abstract
On 29 January 2007, Pre-Trial Chamber I of the International Criminal Court
issued the decision on the confirmation of charges in the Lubanga case, committing
the suspect for trial for the war crime of conscripting and enlisting children under
the age of 15 years. This article focuses on some procedural aspects of the decision:
the admissibility of evidence for the purpose of confirmation of charges, the applic-
able standard of proof, the duty to render a reasoned decision and the issue of
impartiality of judges, as well as the power of the judges to characterize the offences
differently from the Prosecutor’s Charging Document. It is argued that some of the
positions taken in this decision are not uncontroversial, and will require further
judicial interpretation to become less contentious.

1. Preliminary Remarks
The Decision of Pre-Trial Chamber (PTC) I in Lubanga1 comes at the end of the
confirmation hearing which was held at the International Criminal Court (ICC)
from 9 to 28 November 2006, after two postponements. These postponements
were due to the difficulties in adopting effective protective measures for victims
and witnesses and ensuing delays in the disclosure procedure. It is interesting
to note that in addition to the Prosecution and the suspect with his Defence
team, four victims, whose identities remained confidential, took part in the

* Researcher in Criminal Procedure, University of Genoa. [CO529@unige.it]

1 Decision on the Confirmation of Charges, Situation in the Democratic Republic of Congo in
the case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), Pre-Trial Chamber I,
29 January 2007.
............................................................................
Journal of International Criminal Justice 6 (2008), 489^503 doi:10.1093/jicj/mqn036
ß Oxford University Press, 2008, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org
490 JICJ 6 (2008), 489^503

proceedings and the confirmation hearing through their legal representatives.2

As provided in Article 61 ICC Statute, at the hearing, the Prosecutor pre-
sented the evidence which the PTC accepted and found sufficient ‘to establish
substantial grounds to believe that the person committed’ the crime charged.
The Defence, on the other hand, had attempted to object to the charges by
challenging the evidence presented by the Prosecutor and offering its own
evidence in order to avoid confirmation.
The hearing was preceded by an intensive process of disclosure during
which many problems, mainly related to the protection of victims and
witnesses, had to be faced and solved by the Single Judge appointed by the PTC.3
As is well known, the confirmation hearing as defined by the Statute
and the Rules of Procedure and Evidence (RPE) is a distinctive mark of ICC

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procedure ç compared with the procedural system of the previous ad hoc
Tribunals where, more simply, the confirmation of indictment takes place in
an ex parte hearing before a single judge, without any involvement of the
Defence and is based only on the Prosecutor’s allegations.4 Broadly speaking,
it can be said that the procedure for the confirmation of charges at the ICC is
much more complex than its equivalent in other international criminal
tribunals.

2 The PTC I has established the arrangements for anonymous participation, limiting it, in
principle, to ‘i) acess to the public documents only; and ii) presence at the public hearing
only; . . .’ . Moreover, victims’ legal representatives have been allowed to make opening and
closing statements and to intervene during the hearing with the leave of the Pre-Trial
Chamber, but considering the prohibition of anonymous accusations, they were not permitted
‘to add any point of fact or any evidence at all to the Prosecution’s case-file presented against
Thomas Lubanga Dyilo’. See Decision on the Arrangements for Participation of Victims a/0001/
06, a/0002/06 and a/0003/06 at the Confirmation Hearing, Situation in the Democratic Republic
of Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), Pre-Trial
Chamber I, 22 September 2006.
3 On the final system of disclosure see Decision on the Final System of Disclosure and the
Establishment of a Timetable, Situation in the Democratic Republic of Congo in the case of the
Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), PTC I (Single Judge Sylvia Steiner),
15 May 2006. Right at the beginning of the Confirmation Hearing, Defence complained about
the inadequate time given to the team, composed by a limited number of persons, to read the
evidentiary materials disclosed and concluded that ‘the Defence is not ready’ (Situation in the
Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/
06), Transcription of the 9 November 2006 Hearing No. ICC-01/04-01/06-T-30-EN, at 117)
asking for a postponement of the Hearing, request rejected by the PTC on 10 Novemebr 2006.
On the inadequacy of Defence’s resources for the present case see Version publique expurge¤e de
l’enregistrement dans le dossier de ‘la Demande de ressources additionnelles en vertu de la
Norme 83-3 du Re'glement de la Cur’, Situation in the Democratic Republic of Congo in the case of
the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), 3 May 2007 and the ‘Demande
d’intervention, a' titre d’amicus curiae’ filed by the Ordre des Avocats de Paris on 29 May 2007
(available at www.icc-cpi.int, visited 3 March 2008).
4 On the topic of confirmation of the charges at the ICC see M. Marchesiello, ‘Proceedings before
the Pre-Trial Chambers’, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the
International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 1231, at
1243^1246.
 ICC Confirmation of Charges in Lubanga 491

The long and detailed decision can be divided into three parts covering all of
the issues that the PTC I had to tackle in order to confirm the charges. The first
part is devoted to delicate evidentiary and procedural matters in order to
explicate which elements the PTC relied on to confirm charges. The second
analyses each element of the crime charged. Finally, the third examines the
modes of liability as to the Prosecutor’s determination in the ‘Charging
Document’.5
This article aims at analysing from a critical perspective certain procedural
aspects of the confirmation decision, without discussing any issue of substan-
tive law.6

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2. Admissibility of Evidence for the Purpose of the
Confirmation of Charges
Before discussing the elements of the crime charged, the PTC I had to rule on
several evidentiary and procedural matters raised during the hearing both by
the Defence and the Prosecution.
First, it is important to remember that the PTC on 7 November 2006 decided
to admit into evidence all the items contained in the Prosecutor’s and Defence’s
lists of evidence, retaining the right to rule on any inadmissibility on a case-by-
case basis upon a challenge by any of the participants. The Chamber subse-
quently informed the parties that they should have presented their evidence
during the confirmation hearing regardless of any challenge, and that the
Chamber would have ruled on them later in the confirmation decision.
As mentioned above, during the disclosure procedure, the Single Judge
Sylvia Steiner, had ruled several times on the adoption of protective measures
for victims and witnesses. Two of these decisions,7 authorizing the non-disclo-
sure of identity of several witnesses and the disclosure of redacted versions of
witnesses’ statements and other documents, were then challenged by the
Defence before the Appeals Chamber, which rendered two decisions after the
end of the confirmation hearing reversing the decisions of the pre-trial judge8

5 The decision contains one more part regarding a specific defence issue raised by the suspect to
avoid Confirmation of Charges. See below Part 3, note 33.
6 These issues are discussed in greater detail in T. Weigend, ‘Intent, Mistake of Law, and
Co-perpetration in the ICC Decision on Confirmation of Charges in Lubanga’ in this issue. See
also J.C. Baker and M. Happold,‘Prosecutor v Thomas Lubanga, Decision of Pre-Trial Chamber I of
the International Criminal Court, 29 January 2007,’ 56 ICLQ (2007) 713^724.
7 First Decision on the Prosecution Requests and Amended requests for redactions under Rule
81, Situation in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga
Dyilo (ICC-01/04-01/06), PTC I (Judge Sylvia Steiner, Single Judge), 15 September 2006; Second
Decision on the Prosecution Requests and Amended requests for redactions under Rule 81,
Situation in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo
(ICC-01/04-01/06), PTC I (Judge Sylvia Steiner, Single Judge), 20 September 2006.
8 Judgment on the appeal of Thomas Lubanga Dyilo against the decision of PTC I entitled ‘First
Decision on the Prosecution Requests and Amended Request for Redactions under Rule 81’and
Judgment on the appeal of Thomas Lubanga Dyilo against the decision of PTC I entitled ‘Second
492 JICJ 6 (2008), 489^503

for insufficient reasoning. Since the PTC decided not to suspend the hearing,
initially, it had to list in its decision all the admitted evidentiary elements
affected by the Appeals Chamber’s decisions in order to clarify that it did not
rely on them for the confirmation of the charges.
The most interesting procedural issue however, is located in the section of
the decision entitled ‘preliminay evidentiary matters’, defined by the Chamber
as ‘one of the main procedural issues in this case’,9 and concerns the use at the
confirmation hearing of Prosecutor’s evidence seized by the Congolese author-
ities at the home of a person, whose identity is not revealed, as a result of a
search as a part of national criminal proceedings against him. The Defence
objected to the violation by the national authorities of the internationally
recognized human rights, challenging the admissibility of the collected ele-

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ments, pursuant to Article 69(7) ICC Statute, which can be applied during the
confirmation hearing under the provision of Rule 122(9) ICC RPE.
The issue is particularly noteworthy because it represents the first interpre-
tation of Article 69 which embeds the drafter’s choices as far as the evidentiary
rules are concerned.
In relation to admissibility of evidence, Article 69(7) ICC Statute does not
provide for an absolute exclusionary rule regarding elements unlawfully col-
lected10, thus, placing itself at a distance from the common law models. In fact,
any Trial Chamber, and in this specific case, the Pre-Trial Judges, in order to
exclude evidence must establish not only that the elements are ‘obtained by
means of violation’ of the Statute or of the internationally recognized human
rights, but also that the violations cast ‘substantial doubt on the reliability of
the evidence’ or that ‘the admission of the evidence would be antithetical to
and would seriously damage the integrity of the proceedings’. This means that
even if the Chamber recognizes one of the mentioned violations, it may still
decide to admit the evidence if one of the other two requirements is not met.
Furthermore, on the basis of Article 69(8) ICC Statute, in the process of admis-
sion of evidence, alleged violations of national laws do not per se lead to exclu-
sion of evidence, unless at the same time they constitute violations of the
Statute or of internationally recognized human rights.
In this case, the search and seizure had been found to be unlawful by a
national court of the Democratic Republic of Congo (DRC). The Defence asked
for the exclusion of the results of these searches and seizures pursuant to
Article 69(7) ICC Statute. In reaching a decision on the Defence’s request, the
PTC I used the following reasoning. First, it repeated the arguments of the
Defence: the search during which the evidentiary elements were seized was

Decision on the Prosecution Requests and Amended Request for Redactions under Rule 81’,
Situation in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo
(ICC-01/04-01/06), Appeals Chamber, 14 December 2006.
9 Decision on the Confirmation of Charges, supra note 1, at 27.
10 On the complex historical developments of Art. 69(7) ICCSt., see H.-J. Beherens and D.K.
Piragoff, ‘A rticle 69’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International
Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 889, at 894^896.
 ICC Confirmation of Charges in Lubanga 493

conducted by the national authorities as part of national proceedings against

an ‘unnamed person’ who was in prison. The search took place at the presence
of an investigator from the Office of the Prosecutor (OTP); however, it was not
an OTP’s investigation act. A national Court of Appeal ruled that the search
was unlawful and that the collected elements had to be excluded from the
national proceedings: in fact, the home search and seizure had been conducted
in breach of the Congolese Criminal Procedure Code and specifically, of Article
33 because it took place in the absence of the alleged perpetrator who was
under arrest, but who could have been taken to the place at any time.
Second, the PTC clarified that the ICC is not bound by the decisions of national
courts on evidentiary matters and in particular, by the Decision of the Congolese
Court of Appeal. Since the Defence’s request to exclude evidence was based on
Article 69(7) ICC Statute, the PTC had to determine if the evidence was obtained

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in violation of internationally recognized human rights. As far as the breach of
the Congolese Criminal Procedure Code found by the national Court, the PTC
rejected the Defence’s claim: relying on international human rights jurispru-
dence, the PTC stated that the right to privacy, a fundamentally recognized
right that is enshrined in several human rights conventions, can be lawfully
compressed, as occurred in this case, in order to gather evidence for the purpose
of lawful criminal proceedings. The PTC affirmed that even if it is true that the
national Court had excluded the evidence collected because the search was
conducted in the absence of the suspect, it is also true that this kind of violation
cannot be ‘considered so serious to amount to a violation of the internationally
recognized human rights’.11 The PTC did not stop at the analysis of the breach of
the national law however, but it went on in deciding whether to admit the seized
elements. The PTC I found that the presence of the OTP’s investigator during the
search influenced its conduct and the subsequent seizure of hundreds of docu-
ments and items pertaining to the situation in the DRC led, in this contest, to the
violation of an internationally recognized human right, i.e. the proportionality
principle recognized by the European Court of Human Rights (ECHR) as ‘one of
the requirements for lawful interference with the right to privacy’. However, as
mentioned above, the recognized violation is not enough to exclude evidence.
Something more is needed: the PTC had to determine whether or not this viola-
tion ‘casts substantial doubt on the reliability of the evidence’ or whether ‘the
admission of the evidence would be antithetical to and would seriously damage
the integrity of the proceedings’. The PTC concluded that in the process of deter-
mining whether to exclude evidence, the Chamber has the‘discretion to seek and
appropriate balance between the Statute’s fundamental values in each concrete
case’,12 Looking at case law of human rights monitoring bodies as well as the
International Criminal Tribunal for the former Yugoslavia (ICTY), the Chamber
held that one has to consider ‘the balance between the seriousness of the viola-
tion and the fairness of the trial as a whole’.13 It thus decided to admit the seized

11 Decision on the Confirmation of Charges, supra note 1, at 32.

12 Decision on the Confirmation of Charges, supra note 1, at 34.
13 Ibid., at 36.
494 JICJ 6 (2008), 489^503

elements since the method used to gather them did not diminish their reliability
and did not have an adverse effect on the integrity of the proceedings. However,
the PTC acknowledged the limited scope of the confirmation hearing and the
possibility for theTrial Chamber to dissociate itself from this decision at trial and
to rule differently on the admissibility.
The provisions of Article 69(7) ICC Statute can be criticized in that they do
not provide for an absolute exclusionary rule in case of violation of interna-
tionally recognized human rights. Such a provision could have provided for
a stronger protection of the rights of the accused and a more uniform respect
for the principle of procedural legality. The decision of the PTC reinforces
the broad discretion left by the drafters to the Judges on issues concerning the
admissibility of evidence, particularly when violations are not unanimously

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recognized as serious and gross. While it can be anticipated that judges
will not admit evidence gathered through torture or in violation of the protec-
tion against self-incrimination, for example, it is also likely that in cases
such as the one faced in Lubanga (where seemingly minor human rights viola-
tions occurred) the judges will decide against non-admissibility. There is
a natural tendency to be interested in having available as much elements
as possible, thus judges will tend to admit evidentiary materials, even
if unlawfully gathered, in order to gain a deeper knowledge of what happened.

3. The Standard of Proof in the Confirmation of Charges

One of the most important issues to analyse is the standard of proof applied by
the PTC in the Confirmation of Charges. Article 61(7) ICC Statute stipulates
that: ‘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 . . .’ .
The standard can be divided in two different elements: sufficient evidence
and substantial grounds. The Chamber clarifies each,14 referring to the pur-
pose of the confirmation hearing as ‘. . . limited to committing for trial only
those persons against whom sufficiently compelling charges going beyond
mere theory or suspicion have been brought’.15 By this definition, the
Chamber, before considering the two mentioned ‘elements’ of the standard of
proof, seems to be removing any doubt: the existence of sufficient evidence to
find reasonable grounds has nothing to do with the purpose of the trial or with
the existence of a sufficient basis for conviction. The PTC, for the purpose of
confirmation of charges, has to check the seriousness and suitability of persons
to be brought to trial ç to be held with different rules, before a different

14 For the Prosecutor’s position on this issue see Prosecution’s Document Addressing matters that
were Discussed at the Confirmation Hearing, Situation in the Democratic Republic of Congo in the
case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), 4 December 2007, 7^11.
15 Decision on the Confirmation of Charges, supra note 1, at 13.
 ICC Confirmation of Charges in Lubanga 495

Chamber, with different kind of evidence16 and with a different purpose.17 The
purpose of the confirmation process is also ‘. . . to protect the rights of the
Defence against wrongful and wholly unfounded18 charges’.19
In order to define the ‘substantial grounds’, the PTC references the
human rights case law, including the ECHR decisions: thus, substantial means
strong. It then goes into more details as far as the concept of ‘sufficient
evidence’ is concerned: proof offered by the Prosecutor must be ‘concrete
and tangible’ and sufficient to demonstrate ‘a clear line of reasoning under-
pinning its specific allegations’.20 Moreover ç and this is the best help that
the PTC gives to the interpreter in understanding its reasoning and the
meaning of the applied standard of proof ç evidence must be considered ‘as
a whole’.21
In summary: the PTC at the end of the hearing must decide whether

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the charges are strong enough (i.e. not wrongful and unfounded), basing its
reasoning on the Prosecutor’s admitted evidence related to each element of
the crime contained in the ‘charging document’, evaluating not only the
‘numeric consistency’ of the elements and the seriousness of each one, but
also assessing all the evidence as a whole, comparing each piece to the
rest, looking for corroboration and interlinking.22 However, this is not
enough; since the confirmation hearing at the ICC is adversary in nature,
and since the Defence is allowed to participate by objecting to the charges,
challenging the evidence presented by the Prosecutor and, furthermore,
presenting its own evidence, the PTC’s analysis must also consider the
Defence’s allegations, their weight and whether they successfully con-
tradicted the Prosecutor’s line of reasoning thereby making it insufficiently
persuasive.
The standard of proof for confirmation has to be placed somewhere
in between the standard required for the issuance of an arrest warrant or
a summons to appear (i.e. ‘reasonable grounds to believe that the person
has committed a crime within the jurisdiction of the Court’, as stated by
Article 58(1)(a) ICC Statute) and the standard provided for in Article
66(3) which stipulates that ‘In order to convict the accused, the Court must
be convinced of the guilt of the accused beyond reasonable doubt.’23
The standard for confirmation is higher than the former. In order to obtain
an arrest warrant or a summons to appear, the Prosecutor has to support his

16 See subsequently in this paragraph.

17 On this last point see Marchesiello, supra note 4, at 1245.
18 Emphasis added.
19 Decision on the Confirmation of Charges, supra note 1, at 13.
20 Decision on the Confirmation of Charges, supra note 1, at 13.
21 Ibid., at 14.
22 It seems that PTC I evaluated the credibility and reliability of the presented evidence, referring
to each admitted material and to all the materials as a whole, and that this kind of evaluation
was deeper than the one proposed by the Prosecutor (see Prosecution’s Document, supra note
14, at 10, 11).
23 See K. Shibahara, ‘A rticle 61’, in O. Triffterer (ed.), supra note 10, 783, at 790. See also:
Prosecution’s Document, supra note 14, at 5 and 7.
496 JICJ 6 (2008), 489^503

request by a ‘summary of the evidence and any other information which estab-
lish reasonable grounds to believe that the person committed those crimes’.24
Because the Defence does not take part in the procedure and has no voice, the
basis for the issuance is the Prosecutor’s view only. ‘Substantial grounds’ in the
context of the confirmation hearing means ‘strong’, as we said, and stronger
than ‘reasonable’, also because the Prosecution had to face and pass, at this
first level, the objections of the Defence.25
At the same time, the standard for confirmation is lower than the ‘beyond
reasonable doubt’ standard.26 This difference is essential to preserve the con-
firmation hearing’s purpose and not to anticipate the trial. With respect to this
last point there is another issue that is noteworthy: the evidentiary materials
upon which the PTC bases its decision ç just as it happened during the

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hearing against Thomas Lubanga Dyilo ç are different in nature from the
ones that the Trial Chamber will utilize for a final judgment on the guilt or
innocence of the defendant. Article 61(5) ICC Statute places on the Prosecutor
the onus of supporting each charge with sufficient evidence, but it allows him
to rely on ‘documentary or summary evidence’ without requiring him to call
the witnesses ‘expected to testify at trial’. During the hearing against Thomas
Lubanga Dyilo, the Prosecution has relied mainly on documents, reports (e.g.
from Amnesty International), and only one live witness (Cristine Peduto, a staff
member of the United Nations, whose testimony seems to have been crucial in
the decision of the PTC I), many written statements and summaries of wit-
nesses’ declarations (moreover, for the most part anonymous). The Defence
strongly criticized the probative value of these last two sources: Lubanga’s
lawyer stated that a written statement cannot really be challenged because it
cannot be cross-examined and, with regard to the summaries, they are not
reliable because they represent only the Prosecutor’s view of the declarations

24 See Art. 58(2)(d) ICCSt.

25 It has been underlined that ‘While the Statute invites the defence to present evidence at this
stage, it is not obvious that contradictory evidence adduced by the defence can have any effect
upon the determination of the existence of ‘‘sufficient evidence’’. The Pre-Trial Chamber may
well decide that whether or not defence evidence raises doubts about validity of prosecution
evidence is a matter for the trial court and not a pre-trial issue’ (see W. Schabas, An Introduction
to the International Criminal Court (3rd edn, Cambridge: Cambridge University Press, 2007), at
275). In our opinion the PTC is obliged to consider evidence presented by the defence and take it
into account for issuing the final decision; it is clear that if the weight of Defence evidence is
only able to cast mere doubts on the prosecutor evidence the PTC should base its decision on
the criterion of ‘in dubio pro actione’ while the trial judge, in the same situation, should use the
parameter ‘in dubio pro reo’.
26 The standard provided in the Statute and applied by PTC I resembles the standard on which
the judge shall rely in the Italian criminal procedural system when, after the conclusion of the
‘Udienza Preliminare’ ç very similar to the ‘Confirmation Hearing’ ç he decides to put
the person on trial or not (see Art. 425(3) Italian Code of Criminal Procedure which stipulates
that: ‘Il giudice pronuncia sentenza di non luogo a procedere . . . quando gli elementi acquisiti risul-
tano insufficienti, contraddittori o comunque non idonei per sostenere l’accusa in giudizio.’).
 ICC Confirmation of Charges in Lubanga 497

made.27 Even though these remarks have a general foundation, they cannot be
applied to the confirmation hearing and they did not lead the Chamber to find
the evidence tendered by the Prosecutor inadequate. This is the procedural
structure that the drafters of the Statute considered to be proper in order
to avoid the transformation of the confirmation hearing into a ‘trial before
trial’28 and it seems to be helpful in preserving the impartiality of the Trial
Chamber because if the elements admitted at the confirmation hearing and at
trial were the same, the PTC’s decision could influence the Trial Chamber
thereby diminishing its ‘virginity’.29
Moreover, as analysed above, the PTC admitted certain evidentiary materials
on the basis of its interpretation of the provisions about admissibility contained
in the Statute, such as in the case of the items seized by the Congolese author-

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ities which could (and probably should) not be shared by the Trial Chamber
leading to an opposite decision and to the non-admission of the same
materials.30
Finally, to complete the analysis, it is necessary to compare the standard of
proof provided for in Article 61 ICC Statute, as interpreted by PTC I, with the
one adopted by the system of the ad hoc Tribunals and in particular, at ICTY.
Article 18(4) ICTY Statute provides that: ‘Upon a determination that a prima
facie case exists, the Prosecutor shall prepare an indictment containing a con-
cise statement of the facts and the crime or the crimes with which the accused
is charged under the Statute. The indictment shall be transmitted to a judge of
the Trial Chamber’.
Article 19 ICTY Statute requires the judge to whom the indictment has been
transmitted to review it and confirm it if satisfied that a prima facie case has
been established. The judge may issue an arrest warrant only upon such
confirmation.
It is crystal clear that the procedure for the confirmation is completely
different from the one chosen for the ICC where the hearing guarantees more
fairness for the suspect. Going back to the ‘prima facie case’ requirement, at the
ICTY it was interpreted in different ways by various confirming judges. In the
beginning, it was thought that the clarification contained in Rule 47(E) ICTY
RPE, stating that ‘prima facie’ for the submission of the indictment by the
Prosecutor means ‘reasonable grounds for believing that a suspect has com-
mitted a crime within the jurisdiction of the Tribunal’ could be applied also to
the confirmation procedure. Subsequently, starting from the leading decision

27 For the Defence’s criticisms on the probative value of the materials tendered by the Prosecutor
see Situation in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga
Dyilo (ICC-01/04-01/06), Transcription of the 22 November 2006 Hearing No. ICC-01/04-01/
06-T-41-EN and Defence Brief on Matters the Defence Raised During the Confirmation Hearing,
Situation in the Democratic Republic of Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo
(ICC-01/04-01/06), 7 December 2006. For the ruling of the PTC I on these exceptions, see
Decision on the Confirmation of Charges, supra note 1, 37^46.
28 See Shibahara, supra note 23, at 786.
29 On this topic, see below, Section 4.
30 See supra, Section 2.
498 JICJ 6 (2008), 489^503

issued in the Kordic¤ case, the standard to confirm the indictment has been
elevated.31 In fact, Judge McDonald in the aforementioned decision, finding
that Rule 47(B) ICTY RPE did not apply to the provision of Article 19(1)
ICTY Statute used the commentary attached to the draft Statute for an ICC in
order to define the ‘prima facie’ criterion and wrote that: ‘. . . a prima facie case
for this purpose is understood to be a credible case which would (if not
contradicted by the Defence) be a sufficient basis to convict the accused
on the charge’.32
At first glance, comparing the definition and its predominant reading of
the word ‘convicting’ within it, with the interpretation of the ‘substantial
grounds’ given by PTC I it would seem that the standard for the ICTY is
higher than the one required for the ICC and applied in the Lubanga case.

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This conclusion however, is incorrect. Infact, upon closer examination, the
evaluation required to the confirming judge at the ICTY is similar to the one
required at the ICC for the issuance of an arrest warrant or a summons to
appear and it is based on the elements proposed by the Prosecutor absent
confrontation with the Defence views. The ICC PTC on the other hand, must
consider all of the evidentiary materials proposed by the Prosecutor in light of
the materials, allegations and evidence tendered by the Defence, and even any
defence which may be raised by the suspect.33 The two procedures are so
disparate from each other that a comparison between the two standards is
impossible, and at any rate would be unhelpful. It can thus be concluded
that in the context of the adversary confirmation hearing provided for in
the ICC Statute, the evaluation of the ICC PTC is not based on a ‘prima facie’
standard.34

4. The Statement of Reasons in the Confirmation

Decision and the Impartiality of Judges
The PTC, in its long decision, not only explained the meaning of the applicable
standard of proof, but also confirmed that it followed all of the steps listed
above: it carefully evaluated the evidentiary materials presented both by the
Prosecutor and the Defence (listing the pieces of evidence to which the

31 On this topic see D. Hunt, ‘The Meaning of a ‘prima facie case’ for the Purpose of the
Confirmation’, in R. May and D. Tolbert (eds), Essays on ICTY Procedure and Evidence (The
Hague: Kluwer International, 2001) 137^150.
32 Decision on Review of Indictment, Kordic¤ (IT-95-14/2), Confirming Judge, 10 November 1995,
at 3.
33 During the hearing the Defence appealed to the principle of legality in order to exclude
Lubanga’s criminal responsibility. In fact it was argued that Lubanga was not aware that his
conduct was criminal in nature. The PTC, after having considered the proposed motion as
based on the ‘mistake of law’ and not on the violation of the principle of legality, rejected it.
See Decision on the Confirmation of Charges, supra note 1, at 102 ss.
34 For the opposite view of the Prosecutor on this last point see Prosecution’s Document, supra
note 14, at 6.
 ICC Confirmation of Charges in Lubanga 499

Chamber attached particular weight in order to issue its decision and even
citing some excerpts from them), it looked for corroboration and interlinking
of the single elements tendered by the Prosecution35 in order to find ‘strong’
grounds, it considered the views and concerns of the victims’ legal representa-
tives and, finally, it took into account the exculpatory materials proposed by
the Defence, their value, their strength and their potential to convince
the three judges that the grounds to confirm the charges are insufficient.36
For all these steps, PTC I gave a detailed statement of its findings. The fact
that the PTC confirmed the charges explaining the reasons for its determina-
tion is noteworthy, especially considering the relationship between the exten-
sive reasoning contained in the decision and the concerns regarding the
impartiality of trial judges.

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Admittedly, no provision in the ICC Statute, in the RPE and even in the
Regulations of the Court, stipulates that the decision to confirm charges has
to contain a reasoned statement of findings. Following the Latin principle
whereby ‘ubi lex voluit dixit et ubi noluit taquit’ (i.e. where the law wants
something it expressly requires for it, where the law is silent it does not
require it), one could argue that the confirmation decision could have merely
meant that the PTC had found substantial grounds to believe and therefore
decided to send the accused to trial37 after having listed evidence on which
it based the decision. The absence of the statement of findings could have
achieved an important goal: the preservation of the impartiality of trial
judges. Generally speaking, in order for the trial judge to approach the trial
with a ‘virgin mind’, he must first know that the confirmation of charges has
been decided on the basis of a different standard of proof than the one that
will be applied to condemn the accused ç as it happens in the ICC procedure
where the confirmation of charges follows the ‘substantial grounds to believe’
standard and the trial follows the ‘beyond reasonable doubt’standard. However,
the impartiality of trial judges could be better protected if he or she did not
know anything about the reasoning of the PTC and the way in which it
reached the decision to confirm the charges. This would have been the correct
mechanism, and it is indeed the mechanism chosen not only in procedural
systems traditionally belonging to the accusatorial family, such as the United
States (e.g. preliminary hearing or at the grand jury final decision), but also
in procedural systems that combine elements from different traditions, such
as the Italian one. To a certain extent, the Italian system is very similar to
the ICC procedural scheme whereby the Pre-Trial Judge (‘giudice per le indagini
preliminari’), after the confirmation hearing (‘udienza preliminare’), where both
the Prosecution and the Defence present their reasons, issues the decision
without explaining his reasoning for confirmation of charges. This is so

35 See, for example, Decision on the Confirmation of Charges, supra note 1, at 87, x251, note 323.
36 Decision on the Confirmation of Charges, supra note 1, at 135.
37 The statement of findings is explicitly provided for in Art. 74(5) ICCSt. which stipulates that:
‘The decision shall be in writing and shall contain a full and reasoned statement of the Trial
Chamber’s findings on the evidence and conclusion.’
500 JICJ 6 (2008), 489^503

precisely in order to preserve the trial judge’s impartiality and to avoid

undue influence.38 It is this mechanism, this article argues, that should
have been followed in a system like the ICC, substantially based on
the separation of procedural stages and judicial functions at the different
stages.
Moreover, this interpretation is bolstered by an examination of the
primary function of the statement of reasons in a judicial decision, which
is generally for the purpose of allowing the appeal of the decision itself.
It is clear that the confirmation decision is not listed in Article 82(1)(a),
(b) and (c) ICC Statute and so the appeal against it is not provided for as a
matter of right. Even if no consensus is reached on this point however,39
it seems that the confirmation decision could be appealed through the provi-
sion contained in Article 82(1)(d) ICC Statute40 with the leave of the PTC

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only when the criteria set in this article are met, i.e. when the decision ‘. . .
involves an issue that would significantly affect the fair and expeditious con-
duct of the proceedings or the outcome of the trial’. Therefore, the confirmation
decision should contain a statement of the PTC and not simply a statement
such as that required under Article 61(7) ICC Statute in order to enable
a prospective appeal. It seems though that the other option is preferable,
based on the textual interpretation of Article 82 which does not provide for
any appeal against the confirmation decision. This option would avoid the
burden for the PTC to render a reasoned statement of finding and would
also have the great advantage of preserving, in the most extensive way, the
impartiality of trial judges and the principle of the presumption of innocence.
Looking at the statement contained in the confirmation decision in Lubanga
and taking into account the fact that it is so full, long and detailed, one may
conclude that the suggested interpretation is indeed warranted. However, one
must consider that to a certain extent, the choice made by the PTC in Lubanga
is laudable. In a way, one might conclude that it was ‘necessitated’ by the
circumstances of the case. When the PTC was applying for the first time the
standard of proof provided for in Article 61 ICC Statute it performed a sort of
essential ‘educational duty’ not only explaining the meaning of that standard in
a formal way, but showing how it concretely applied the standard. In any event,
it would be unwise to follow this precedent in the future. The confirmation
decision in Lubanga, as far as the length and deepness of its statement of
reasons, should not constitute a model for the subsequent cases. In the future,
the pre-trial judges should make an effort to cut down the statement of the
decision without explaining in detail the means used to reach the confirma-
tion of charges, especially in so far as they concern the evaluation of evidence.

38 See Art. 429 Italian Code of Criminal Procedure.

39 See Shibahara, supra note 23, at 791.
40 See H. Brady and M. Jennings, ‘Appeal and Revision’, in R.S. Lee (ed.), The International Criminal
Court. The Making of the Rome Statute (The Hague: Kluwer Law International, 2002) 294^304, at
300 and Decision on the Prosecution and Defence applications for leave to appeal the Decision
on the confirmation of charges, Situation in the Democratic Republic of Congo in the case of the
Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04-01/06), PTC I, 24 May 2007, at 7.
 ICC Confirmation of Charges in Lubanga 501

This goal should be pursued primarily in order to protect the ‘virginity’ of the
trial judge because if it is true that the trial court will issue its decision on
the basis of a different standard of proof and probably evaluating different, or
not completely identical, evidentiary elements, it is also true that knowing in
such detail the reasoning of the PTC can influence the final trial decision.
Moreover, shortening the drafting process of the confirmation decision will
help judges to manage cases in an efficient way when the ICC caseload
increases.41

5. The Divergence Between the Crime Charged by the

Prosecutor and the Determination of the PTC

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One final issue that is worth discussing is the divergence between the charges
brought by the Prosecutor and the ones confirmed by the PTC. In this respect,
some remarks are required because the determination reached by PTC on this
point seems to be one of the other interesting procedural details of the
decision.
Article 61(7) ICC Statute gives the PTC several options at the end of the
confirmation hearing including the possibility of adjourning the hearing and
requesting the Prosecutor to consider ‘amending the charge because the evi-
dence submitted appears to establish a different crime within the jurisdiction
of the Court’.
Following that provision, the Chamber, after having found that the conflict
in Ituri (in the context of which the alleged crime had been committed) was,
at least in part, of an international nature, should have adjourned the hearing
in order to allow the Prosecutor to amend the charge because the crimes
provided in the two articles are not formally identical to each other. However,
the PTC chose a different solution: it stated that the provision does not apply to
a given specific situation. The PTC interpreted the term ‘crime’ contained in
Article 61(7) ICC Statute based on the concept of criminal ‘conduct’, consider-
ing the purpose of that provisions which is ‘to prevent the Chamber from

41 In our opinion there is another critical point about impartiality, this time referring to the
position of the PTC. As we have said above, the Statute and the RPE allows the PTC to authorize
redactions of evidentiary materials, as a protective measure for victims and witnesses, even to
grant the anonymity of those subjects, admitting, as matter of fact, ‘anonymous witnesses’. In
ruling on the matter the PTC, or better the Single Judge, obviously, has to examine the integral
version of those materials, to check if the redactions are necessary and useful for the purpose;
but, at the end, the PTC for issuing the confirmation decision has to rely only on the redacted
admitted version of those materials. Without doubting of the great professionalism of the three
judges in the case against Lubanga Dyilo and their capacity of detach themselves from the
versions of the materials reviewed to authorize the redactions and considering that only one
judge of the panel had to analyze the full text of the redacted materials, we wonder if it could be
more correct in order to assure an impregnable fairness, having different judges^persons who
perform the functions of the PTC during the investigations and during the confirmation hear-
ing. Even if there are no provisions either in the Statute or in the RPE about this issue the
question is open and it is worth consideration.
502 JICJ 6 (2008), 489^503

committing a person for trial for crimes which would be materially different
from those set out in the Document Containing the Charges and for which the
Defence would not have had the opportunity to submit observations at the
confirmation hearing’.42 As for Articles 8(2)(e)(xxvi) and Article 8(2)(b)(vii)
ICC Statutes, the PTC concluded that they criminalize the same material con-
duct. The PTC stated that the Defence had been able to play its role fully and
thus, that the Chamber was entitled to directly confirm the charges without
adjourning the hearing.
Both the Prosecution and the Defence based their requests for leave to
appeal PTC’s 29 January 2007 decision precisely on the above mentioned sub-
stitution of the crimes charged.43 The Prosecution argued that the Chamber
exceeded the scope of its authority under Article 61(7) ICC Statute and thereby
deprived it of its right under the Statute to amend the charges; the Defence

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alleged that the Chamber erred in confirming the charges without adjourning
the hearing because it did not give the Defence the right to be heard. In reject-
ing the two requests for leave to appeal, the PTC I stated that ‘the legal char-
acterization of the conflict as of an international nature had already been
mentioned in the Decision on the arrest warrant against Thomas Lubanga
Dyilo; that ‘the Defence itself raised the issue of the international character
of the conflict at the confirmation hearing and all participants had the
opportunity to present their observations on the matter’ and that pursuant to
regulation 55 of the Regulation of the Court, the Trial Chamber may ‘change
the legal characterization of facts accord with the crimes under articles 6, 7
or 8, or to accord with the form of participation of the accused’ and so the
parties will be able to ask for the reconsideration of the crimes as confirmed
by the PTC.44
Although the PTC I’s decision does facilitate expeditiousness in proceedings,
considered on the whole, it is not ideal. First of all, the decision does not reflect
the literal meaning of Article 61(7) which, when speaking of ‘different crime’,
seems to preclude any option other than the adjournment of the hearing and
the return to the Prosecutor of the power to characterize the crime. It is true,
as the PTC emphasized in its rejection of the request for leave to appeal, that
the Trial Chamber has the authority to modify the legal characterization of the
facts, but this power can be exercised only when the necessity emerges during
the trial and it does not change the nature of the problem regarding the con-
firmation hearing the fact that there is only one option offered to the PTC by
the Statute, even in the case where it is confronted with a situation such as the
one faced in Lubanga, i.e. where the crime charged and the one confirmed are

42 Decision on the Confirmation of Charges, supra note 1, at 72.

43 The Prosecutor presented the request for leave to appeal against the decision based only on the
divergence between his determination in the ‘Charging Document’ and the decision itself. The
Defence applied for the leave to appeal on a more complex set of reasons. Both the applications
have been rejected by the PTC I (see Decision on the Prosecution and Defence applications for
leave to appeal, supra note 40).
44 Ibid., at 13, 14.
 ICC Confirmation of Charges in Lubanga 503

‘similar’, but not ‘identical’ and therefore ‘different’. The decision of the PTC
not to adjourn the hearing must be read not only as a mechanism for promot-
ing speediness, but also as another step in the actio finium regundorum to
strengthen the powers of the PTC in its interplay with the Prosecutor during
pre-trial proceedings.45

6. Conclusions
The first confirmation decision in the history of the ICC gives food for thought
both as far as substantive law and procedural law are concerned. The interpre-
tation given by PTC I to Article 69(7) and Article 61(7)(c)(ii) in particular, is of

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great interest. Moreover, even the choice to render such a lengthy and detailed
decision (contrary to all other confirmation decisions at the ad hoc Tribunals)
creates concerns with regard to the preservation of the trial judges’ impartial-
ity and efficient case management. The choices made by PTC I could create a
precedent for subsequent cases or they could represent a first experiment from
which the judges in the future of the ICC can learn a good lesson in order to
improve the new procedural system. For the reasons argued above, this first
confirmation decision should not be accepted as precedent and should not be
used as a model for future confirmation hearings.

45 On the topic see M. Miraglia, ‘The First Decision of the ICC Pre-Trial Chamber: International
Criminal Procedure Under Construction’, 4 JICJ (2006) 188^195.