Did the Gbagbo Majority Get the No Case to Answer Standard Wrong?

I highly recommend Paul Bradfield’s erudite post yesterday, in which he suggests that “the Gbagbo Trial Chamber appears to have departed from the standard enunciated in Ruto” concerning the standard of proof applicable to No Case to Answer (NCA) motions. I do not completely agree — and I want to offer a couple of thoughts on Paul’s post, with the caveat that we will not know precisely what the Majority thinks the standard is until it issues its written decision.

To begin with, I think it is important to reiterate — as Paul rightly does in his conclusion — that if the Majority did depart from the Ruto standard, it had every right to do so. Trial Chambers are bound by decisions of the Appeals Chamber; they are not bound by the decisions of other Trial Chambers. So, in the absence of an Appeals Chamber decision, there is nothing inherently wrong with one Trial Chamber taking a different approach than one of its predecessors. It might be a good idea for Trial Chambers to generally follow the approach taken by previous Trial Chambers. (Indeed, I think it is.) The new approach might be worse than the previous one. But the mere fact of a disagreement between two Trial Chambers tells us very little — much less that the later Trial Chamber did something wrong.

My first disagreement with Paul concerns his claim that the Ruto Trial Chamber adopted the ad hoc tribunals’ standard of proof for NCA motions. Here is what he says:

[T]he Ruto Trial Chamber essentially adopted the legal standard used at the ICTY/R: “the test to be applied for a ‘no case to answer’ determination is whether or not, on the basis of a prima facie assessment of the evidence, there is a case, in the sense of whether there is sufficient evidence introduced on which, if accepted, a reasonable Trial Chamber could convict the accused.”

Paul is correct about what the Ruto TC said the standard should be. But the Ruto TC did not exactly do justice to the ad hoc tribunals’ jurisprudence. Here is the standard of proof for an NCA motion that the ICTY Appeals Chamber adopted in Jelisic (para. 36; my emphasis):

[W]hether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict — that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.

The ICTY Appeals Chamber’s standard, from which it has never deviated, is straightforward. In the face of an NCA motion, the Trial Chamber should assume that the Prosecution’s evidence is valid and then ask itself whether, in light of that evidence, a reasonable Trial Chamber could conclude that the Prosecution had proved the defendant’s guilt beyond a reasonable doubt. If so, the trial should continue. If not, the Trial Chamber should acquit the defendant.

The Ruto TC based its standard of proof on Jelisic — as n. 43 makes clear. Yet it presented an incomplete account of the Jelisic standard, because it failed to explain what the ICTY AC meant for evidence to be sufficient to convict: namely, that the evidence was capable of proving the defendant’s guilt beyond a reasonable doubt.

It is thus anything but clear — and this is my central point — that the Gbagbo TC applied an “elevated” standard of proof to the defendants’ NCA motion. Paul suggests as much, echoing Judge Herrera Carbuccia’s dissent:

 In her dissenting opinion from the acquittal decision, Judge Carbuccia refers to the lack of clarity in the standard applied by the Gbagbo Majority, and at one point indicates that a higher standard has been applied – akin to that of “beyond reasonable doubt.”

Here is what Judge Herrera Carbuccia says (emphasis mine):

40. … I consider that the applicable standard is that of “whether there is evidence on which a reasonable Trial Chamber could convict”. I consider that if this standard would have applied and would have been clearly informed to the parties, the Chamber would have been able to render a reasoned decision in an expeditious manner and in respect to the rights of the accused and other parties in the proceedings. It is my view that the application of any other standard, and the lack of clarity as to the applicable standard in these proceedings, attempts against the purpose of such proceedings and ultimately against the rights of all the parties, including the accused.

41. The Chamber must analyse the evidence bearing in mind the nature and purpose of this “halfway stage”, which will not conclude with a determination of the truth or a decision based on a ‘beyond reasonable doubt” standard.” In essence, such a mid-trial motion ought to be expeditious and superficial (prima facie) in order not to preclude the judges from continuing with the trial (or be disqualified) if the Chamber decides to dismiss the motions for acquittal and carry on with the trial.

Like the Ruto TC before her, Judge Herrera Carbuccia specifically cites (n. 48) ICTY jurisprudence for the correct standard of proof for NCA motions. Her characterization of that jurisprudence, however, is is no less incomplete than Ruto TC’s, because it implies that the Prosecution’s evidence does not have to prove the defendant’s guilt beyond a reasonable doubt at the NCA motion stage. As we have seen, that is not the ICTY Appeals Chamber’s position. What distinguishes final judgments from NC motion decisions, according to the Appeals Chamber, is not the presence or absence of reasonable doubt, but how the Trial Chamber should assess the Prosecution’s evidence:

[1] At the final-judgment stage, the Trial Chamber is free to disregard evidence it finds questionable (a witness lying or a document being unreliable). At the NCA motion stage, the Trial Chamber must put aside such doubts and assume that the Prosecution’s evidence is valid.

[2] At the final-judgement stage, the Trial Chamber asks whether they believe that the Prosecution has proved the defendant’s guilt beyond a reasonable doubt. At the NCA motion stage, the Trial Chamber asks whether any reasonable Trial Chamber could reach that conclusion.

Judge Herrera Carbuccia’s argument is odd, given that the decision she cites — the Trial Chamber in Kunarac — adopted exactly the same standard for NCA motions as Jelisic, decided a year later (para. 3):

The test which the Trial Chamber has applied in the present case is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict – that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.

So has the Gbagbo Majority really applied an elevated standard for NCA motions compared to the Ruto TC? It is impossible to know for sure, because — as Paul rightly notes — the Majority has offered a number of cryptic statements concerning its understanding of the NCA motion standard. But I disagree with Paul that it “feel[s] misplaced that a ‘no case to answer’ decision would be rendered with reference to a provision (article 66) that contains the standard necessary to prove guilt beyond a reasonable doubt.” On the contrary, that is exactly what the Majority should have done if it wanted to follow the ICTY’s approach to NCA motions. As the ICTY Appeals Chamber said in Jelisic (para. 36): “the notion of proof of guilt beyond reasonable doubt must be retained in the operation of Rule 98bis(B)… If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis(B), ‘insufficient to sustain a conviction’.”

There is no legal — as opposed to prudential — reason why the ICC has to take the same approach to NCA motions as the ICTY and ICTR. Insofar as it has chosen to do so, however, the responsibility for any confusion in the Court’s approach lies with the Ruto TC, for expressing the standard of proof in a misleading way. When the Gbagbo Majority releases its written decision, I very much hope we will see the phrase “evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused” within it.