20 Jan No Case to Answer? Show Me the (Standard of) Proof!
[Paul Bradfield is a PhD candidate at the Irish Centre for Human Rights at NUI Galway. He formerly worked as a lawyer in the Office of the Prosecutor at the ICC, and in Defence at the ICTY, ICTR and ICC. The views expressed above are entirely his own.]
On Tuesday, Trial Chamber I of the international Criminal Court issued its oral decision on the “no case to answer” applications made by Laurent Gbagbo and Charles Blé Goudé. By a 2-1 majority, Judge Carbuccia dissenting, the Trial Chamber acquitted them both, and ordered their immediate release. Later, on Friday, the Appeals Chamber, by a 3-2 majority, Judges Morrison and Hofmański dissenting, temporarily suspended the decision to release them, pending further written submissions and an oral hearing to be held on 1 February.
This post will not focus on the substantive outcome to acquit, or the structural reasons why this happened. Rather, this post examines – to the extent possible – the legal standard used to arrive at Tuesday’s decision. It considers that the Gbagbo Trial Chamber appears to have applied a different standard of proof previously adopted for “no case to answer” proceedings. The decision consequently creates uncertainty around the applicable law with regard to a procedure that is not expressly provided for in the legal framework of the court.
The acquittal decision has prompted much critical reaction, including in the media, from civil society, practitioners and the academic community, with much of the criticism directed towards the door of the Office of the Prosecutor for another unsuccessful case. However, at this stage much of this criticism is, I respectfully suggest, premature, for two main reasons. First, appeal proceedings will continue, and a 2-1 split makes clear the acquittal decision was not a clear-cut one. Second, and as noted by the Prosecution, without a full written decision, it is impossible to know the full content of the evidentiary assessment and legal reasoning that led to the acquittal decision.
Before a closer examination of the Gbagbo acquittal decision, it is necessary to first recall the only ICC jurisprudence on the “no case to answer” procedure, pronounced for the first time in the Ruto case.
The Ruto “no case to answer” standard – the first precedent
Followers of ICC proceedings will know that the legal framework of the court (unlike the ad hoc tribunals) does not expressly provide for a “no case to answer” procedure. Thus, when first requested in the Ruto case, the power of a chamber to hold this procedure had to be interpreted and read-in to article 64(2) of the Rome Statute, which provides that:
“The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.” (emphasis added)
Relying on this legal basis, the 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.” (Ruto Conduct of Proceedings Decision, para. 23). The Ruto Trial Chamber noted that the legal assessment at the half-way point of a trial is very different to that carried out at the conviction stage, i.e., that of “beyond all reasonable doubt”, the standard contained in article 66(3) of the Statute (Id., para. 23 & fn. 39). It further stated that it “would not consider questions of reliability or credibility relating to the evidence, save where the evidence is incapable of belief by any reasonable Trial Chamber.”(Id., para. 32)
Following the close of the Prosecution case, “no case to answer” submissions were made by the parties. But, rather than “acquitting” the accused, the Ruto Trial Chamber, by a 2-1 majority (Judge Carbuccia dissenting), innovatively declared a “mistrial”, a judicial result likewise not expressly provided for in the Statute. Despite the Ruto Trial Chamber earlier stating that evaluation of credibility would not occur save where the evidence was “incapable of belief”, in his reasons Judge Fremr stated that a chamber should nevertheless be entitled make such an evaluation where a case is effectively “breaking down” (Ruto “no case to answer” decision, p. 53, para. 144). Judge Eboe-Osuji opined that a “provisional” review of credibility was necessary, but underscored that such a review was “not to settle the question whether the case for the prosecution has established guilt beyond reasonable doubt […].” (Id, p. 105, para. 115)
The Gbagbo “no case to answer” decision – an elevated standard?
On a first reading, the Gbagbo Trial Chamber appears to have departed from the standard enunciated in Ruto. In Tuesday’s ruling, Presiding Judge Tarfusser stated:
“For all these reasons, the Chamber, by majority, hereby: Decides that the Prosecutor has failed to satisfy the burden of proof to the requisite standard as foreseen in Article 66 of the Rome Statute.” (Acquittal ruling, p. 4, lines 14-16)
This statement is curious, as the burden of proof contained in article 66 concerns the threshold relevant to proving guilt, not whether the accused has a “case to answer.” Article 66 reads:
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.” (emphasis added)
This does not appear to be in line with the burden of proof in Ruto (Conduct of Proceedings Decision, para. 23, quoted above). 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”:
“[…] 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.” (Dissent, paras. 40-41).
However, on Wednesday, when delivering the Majority’s ruling denying the Prosecution’s request to maintain the accused’s detention pending appeal, Judge Tarfusser clarified that the Majority had not, in fact, applied such a standard to its assessment of the evidence:
“It should be noted, in this regard, that the dissenting judge is mistaken in stating that the majority has acquitted Mr Gbagbo and Mr Blé Goudé by applying the beyond a reasonable doubt standard. The majority limited itself to assessing the evidence submitted and whether the Prosecutor has met the onus of proof to the extent necessary for warranting the Defence to respond. Adopting this standard, it is not appropriate for these proceedings to continue. (emphasis added) (Detention ruling, p. 4, lines 11-16).
Leaving aside the extraordinary open disagreement between the Majority and Judge Carbuccia as to the legal standard that has actually been applied in the acquittal decision, the question remains: what is the nature of the “onus of proof” the Majority is referring to? It is not entirely clear. However, it is hard to reconcile this clarification with the Majority’s prior holding that the Prosecution had not met the standard of proof contained in article 66 (i.e., beyond reasonable doubt), quoted above. Perhaps article 66 was simply referenced by the Majority as being the basis for its mid-way assessment for whether the Majority “could” have convicted, not the application of the “beyond reasonable doubt” standard per se. But we do not yet have clarity in this regard, and must await the full reasoned decision.
While the Ruto jurisprudence states (as the ad hoc caselaw does) that a successful “no case to answer” decision results in a full or partial acquittal, in the sense of a final judgement (Ruto Conduct of Proceedings Decision, para. 22; Dissent, para. 21), it does feel 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. Notably, the Ruto “no case to answer” decision does not appear to be considered one made pursuant to articles 66 or 74 . It was deemed to have been one made pursuant to article 64 (Ruto “no case to answer” decision, p. 132, para. 190). Tellingly, in the 254-page Ruto “no case to answer” decision, the phrase “article 74” appears only once, in a footnote, and out of context to the present discussion (Id, p. 50, fn. 206). “Article 66” does not appear at all. Yet, article 66 appears to be the pivotal provision in the Gbagbo acquittal decision.
The above analysis is indeed a preliminary one, and is based on the limited ruling and dissent handed down on Tuesday. It is one that some will also disagree with. However, while we await the full reasoned decision to see exactly what legal standard has been applied (and how), it does appear that the Gbagbo Trial Chamber has departed from the approach of the Ruto Trial Chamber, at least insofar as the provisions it has expressly relied upon to issue the acquittal decision, and the standard used to assess evidence at the half-way stage of a trial. While a chamber has the ability to depart from previous decisions, per article 21(2) of the Statute (“The Court may apply principles and rules of law as interpreted in its previous decisions.” (emphasis added)), the principle of legal certainty should also be a relevant consideration, especially for a statutorily undefined procedure, so that the parties may know the legal standards required of them. Notably, earlier in the Gbagbo case, a Prosecution application to have the applicable “no case to answer” standard clarified last year was denied. Appellate guidance is now required to give certainty as to the applicable law with respect to the “no case to answer” procedure, and no doubt will be forthcoming as the Prosecution makes its direct appeal of the acquittal decision under article 81(1)(a) of the Statute.
In conclusion, the Assembly of States Parties should give serious consideration to amending the Rules of Procedure and Evidence to comprehensively delineate the “no case to answer” procedure, since it is likely to be a regular feature in future cases. It is quite remarkable that two cases have now been discontinued using a procedure that is not expressly provided for in the legal framework of the court. It is a lacuna that should be remedied.