Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure

Abstract

The article begins with a discussion of the judicial debate on the confirmation procedure before the International Criminal Court, which arose in the pretrial proceedings in the Gbagbo case. The author argues that in finding that a confirmation of the charges decision should be based on ‘the strongest possible case based on a largely completed investigation’, Pre-Trial Chamber I imposed too high a standard of proof, and that adopting such standards could potentially disrupt proceedings by blurring the boundaries between pretrial and trial stages. This would ultimately be detrimental to the rights of the accused, both in terms of the right to a speedy trial and the presumption of innocence. Even if available evidence does not appear sufficient to sustain a possible conviction at trial, a case could still be worthy of trial if the PreTrial Chamber established that doubts and inconsistencies regarding the credibility of the evidence would be more properly addressed and solved through the examination of witnesses.