* This text was reproduced and reformatted from the text available at the International Criminal Court Web site (visited March 4, 2013) http://www.icc-cpi.int/iccdocs/doc/doc1420080.pdf.

1 Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10-514, Judgment on the Appeal of the Prosecutor Against the Decision of Pre-trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges” (May 30, 2012) [hereinafter Mbarushimana Appeals Judgment].

2 Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10-330, English Version of Prosecution’s Document Containing the Charges Submitted Pursuant to Article 61(3) of the Statute (Aug. 3, 2011).

3 Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10-465-Red, Corrigendum to the Prosecution’s Document in Support of Appeal Against the “Decision on the Confirmation of Charges” (Mar. 12, 2012) [hereinafter Document in Support of the Appeal].

4 The Court has also refused to confirm the charges against Bahar Idriss Abu-Garda, Sudan’s Chairman and General Coordinator of Military Operations of the United Resistance Front, but the Pre-Trial Chamber in that case did not grant the Prosecutor’s request to appeal that decision. In the Situation in the Republic of Kenya, charges against Henry Kiprono Kosgey and Mohammed Hussein Ali were also not confirmed, while they were confirmed against their cosuspects.

5 Many jurisdictions have nowadays departed from their original “investigative magistrate” model. Among these are Germany, Italy, Portugal, Costa Rica, and Chile, to name but a few.

6 Document in Support of the Appeal, supra note 3, ¶¶ 24, 36-37.

7 Id. ¶¶ 25-48.

8 Mbarushimana Appeals Judgment, supra note 1, ¶¶ 1, 40.

9 Rome Statute of the International Criminal Court art. 61(5), July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002), available at http://www.un.org/law/icc/index.html [hereinafter Rome Statute].

10 Id. at art. 61(7).

11 See Mbarushimana Appeals Judgment, supra note 1, ¶ 47.

12 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-108-Corr, Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence (May 19, 2006).

13 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-568 (OA 3), Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence,” ¶¶ 2, 54 (Oct. 13, 2006).

14 Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11-614, Decision Requesting Observations on the “Prosecution’s Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute” (Jan. 29, 2013). The Prosecution did not appeal this decision, but submitted that in provision of justifications for conducting investigations post-confirmation is not a prerequisite for deciding on amendment of charges, as is apparent from the reading of Article 61(7) of the Statute. The Pre-Trial Chamber eventually permitted the Prosecution to amend its charging document. See Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11-700-Corr, Corrigendum to “Decision on the Prosecution’s Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute” (Mar. 22, 2013). The charges against Francis Muthaura have in the meantime been withdrawn.

15 Mbarushimana Appeals Judgment, supra note 1, ¶ 44.

16 Id.

17 Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11-728, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, ¶ 119 (April 26, 2013).

18 Id. ¶ 120-121.

19 Article 25(3)(d) of the Rome Statute, supra note 9, provides:

1. (i)

   (i) Be made with the aim of furthering the criminal activity of criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

2. (ii)

   (ii) Be made in the knowledge of the intention of the group to commit the crime; [. . .] (emphasis added).

20 Mbarushimana Appeals Judgment, supra note 1, ¶¶ 55-56.

21 Id. ¶ 68.

22 Judge Fernandez de Gurmendi, writing in a separate opinion, thought the Pre-Trial Chamber did effectively apply the “significant contribution standard in its reasoning, and addressed the issue on merits.” Judge Fernandez de Gurmendi stated that she would have found that the Pre-Trial Chamber erred in finding that the contribution to the crimes must be significant. See id. at 30-34 (Fernandez de Gurmendi, J., separate op.).

1 Transcript of 16 September 20 II, JCC-01104-01110-T-6-Red2-ENG (CT WT), p. 57, lines 4-12.

2 “Prosecution’s written submissions on the confirmation of charges”, 6 October 2011, ICC-01/04-01/10-448-Red (hereinafter: “Prosecutor’s Written Submissions on the Confirmation of Charges”).

3 “Defence Written Submissions Pursuant to the Oral Order of Pre-Trial Chamber I of 16 September 2011”, 21 October 2011, ICC-01/04-01/10-450 (hereinafter: “Defence Written Submissions”).

4 “Observations de victimes autorisées à participer à la procédure au terme de l’audience de confirmation des charges retenues contre M. Callixte Mbarushimana”, 6 October 2011, ICC-01/04-01/10-446.

5 ICC-01/04-01/10-465-Conf. A public redacted version was filed as ICC-01/04-01/10-465-Red. All references herein are to the public redacted version

6 ICC-01/04-01/10-480.

7 “Defence Response to ‘Prosecution’s Application for Leave to Appeal the “Decision on the confirmation of charges”’ (ICC-01/04-01/10-480)”, 26 February 2012, ICC-01/04-01/10-486-tENG.

8 ICC-01/04-01/10-487.

9 ICC-01/04-01/10-495 (OA 4).

10 ICC-01/04-01/10-499 (OA 4).

11 “Corrigendum to the ‘Prosecution’s Document in Support of Appeal against the “Decision on the Confirmation of Charges’” (ICC-01/04-01/10-465-Red)”, ICC-01/04-01/10-499-Corr (OA 4).

12 On 9 March 2012, the Appeals Chamber rendered the “Decision on Mr Mbarushimana’s request for time extension”, ICC-01/04-01/10-497 (OA 4), extending the time limit for the filing of Mr Mbarushimana’s response to the Prosecutor’s document in support of the present appeal from 10 days to 15 days from the notification of the original version of that document. On 23 March 2012, the Appeals Chamber further extended the time limit for the filing of Mr Mbarushimana’s response to the Document in Support of the Appeal to 2 April 2012, in its “Decision on the ‘Requête urgente aux fins de reconsidération de la décision ICC-01/04-01/10 OA4, de protestation et de réserve’”, ICC-01/04-01/10-505 (OA 4).

13 ICC-01/04-01/10-508-tENG (OA 4).

14 “Decision on the ‘Requête tendant à obtenir autorisation de participer à la procédure d’appel contre la “Décision relative à la confirmation des charges” (ICC-01/04-01/10-465-ConftFRA)”’, ICC-01/04-01/10-509 (OA 4).

15 ICC-01/04-01/10-510-Red (OA 4).

16 ICC-01/04-01/10-511-tENG (OA 4).

17 Annex A to “Corrigendum to the ‘Prosecution’s Document in Support of Appeal against the “Decision on the Confirmation of Charges”’ (ICC-01/04-01/10-465-Red)”, 13 March 2012, ICC-01/04-01/l 0-499-Corr-AnxA, paras 4-7.

18 Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’”, 2 December 2009, ICC-01/05-01/08-631-Red (OA 2), para. 38.

19 Response to the Victims’ Observations, paras 2-5.

20 Appeals Chamber, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, “Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled ‘Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation”’, 17 February 2012, ICC-02/05-03/09-295 (OA 2), para. 20.

21 Document in Support of the Appeal, p. 11.

22 Document in Support of the Appeal, p. 11.

23 Document in Support of the Appeal, para. 22 (misquoting the Decision on Leave to Appeal, para. 21 as finding the two issues “intrinsically connected” whereas the Pre-Trial Chamber had found the issues “inextricably connected”).

24 Prosecutor’s Written Submissions on the Confirmation of Charges, para. 31. Mr Mbarushimana’s response to the Prosecutor’s arguments was set out before the Pre-Trial Chamber in the Defence Written Submissions, paras 39-43.

25 Prosecutor’s Written Submissions on the Confirmation of Charges, para. 31.

26 Prosecutor’s Written Submissions on the Confirmation of Charges, para. 32.

27 Prosecutor’s Written Submissions on the Confirmation of Charges, para. 33.

28 Prosecutor’s Written Submissions on the Confirmation of Charges, paras 32-33.

29 Prosecutor’s Written Submissions on the Confirmation of Charges, para. 31.

30 Impugned Decision, paras 45-47. 31 Impugned Decision, para. 45.

32 Impugned Decision, para. 46.

33 Impugned Decision, para. 47.

34 Document in Support of the Appeal, para. 24.

35 Document in Support of the Appeal, para. 24.

36 Document in Support of the Appeal, p. 11.

37 Document in Support of the Appeal, paras 36-37.

38 Document in Support of the Appeal, para. 41.

39 Document in Support of the Appeal. pp. 12, 14, 17.

40 Document in Support of the Appeal, paras 25-28.

41 Document in Support of the Appeal, para. 25.

42 Document in Support of the Appeal, para. 27.

43 Document in Support of the Appeal, para. 28.

44 Document in Support of the Appeal, paras 29-34.

45 Document in Support of the Appeal, para. 30.

46 Document in Support of the Appeal, para. 31.

47 Document in Support of the Appeal, para. 31.

48 Document in Support of the Appeal, para. 32.

49 Document in Support of the Appeal, para. 33.

50 Document in Support of the Appeal, paras 35-48.

51 Document in Support of the Appeal, paras 36-37.

52 Document in Support of the Appeal, para. 36.

53 Document in Support of the Appeal, para. 37.

54 Document in Support of the Appeal, paras 38-39.

55 Document in Support of the Appeal, para. 38.

56 Document in Support of the Appeal, para. 39.

57 Document in Support of the Appeal, paras 40-44.

58 Document in Support of the Appeal, para. 41.

59 Document in Support of the Appeal, para. 43.

60 Document in Support of the Appeal, para. 44.

61 Document in Support of the Appeal, paras 45-48.

62 Document in Support of the Appeal, para. 47.

63 Document in Support of the Appeal, para. 48.

64 Response to the Document in Support of the Appeal, paras 1-5.

65 Response to the Document in Support of the Appeal, paras 6-9.

66 Response to the Document in Support of the Appeal, para. 10.

67 Response to the Document in Support of the Appeal, para. 11.

68 Response to the Document in Support of the Appeal, para. 12.

69 Response to the Document in Support of the Appeal, para. 18.

70 Response to the Document in Support of the Appeal, para. 19.

71 Response to the Document in Support of the Appeal, paras 22-23.

72 Response to the Document in Support of the Appeal, para. 24.

73 Response to the Document in Support of the Appeal, paras 25, 44-46.

74 Response to the Document in Support of the Appeal, para. 29.

75 Response to the Document in Support of the Appeal, para. 31.

76 Response to the Document in Support of the Appeal, para. 32.

77 Response to the Document in Support of the Appeal, para. 35.

78 Response to the Document in Support of the Appeal, para. 39.

79 Cf. Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Procedural Matters, “Paper put forward by the Delegations of Argentina, Australia, Austria, Canada, France, Germany, Japan, Korea, Malawi, The Netherlands, South Africa, Sweden, the United Kingdom, and the United States, proposing a framework for the fundamental stages of the criminal process of the Court”, 27 March 1998, UN Doc. A/AC.249/WG.4/DP.36, http://www.legal-tools.org/doc/c44e59/, p. 2 (introducing the confirmation of charges hearing as having the purpose of establishing whether there is a “prima facie case with respect to each of [the] charges”, a phrase which was subsequently rejected in favour of “sufficient evidence to establish substantial grounds to believe the person committed each of the crimes charged).

80 Document in Support of the Appeal, para. 41.

81 See Document in Support of the Appeal, para. 33.

82 Rule 47 (B) of the ICTY and ICTR Rules of Procedure and Evidence.

83 Article 19 of the ICTY Statute; article 18 of the ICTR Statute.

84 This inference is further supported by the fact that the language of article 61 of the Statute was adopted in place of the prior term “prima facie case” while the language of Rule 47 of the ICTY/ICTR Rules of Procedure and Evidence gives life to article 19 (1) of the ICTY Statute/article 18 (1) of the ICTR Statute which provides for confirmation of the indictment upon establishment of a “prima facie case”. See also, Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Procedural Matters, Paper put forward by the Delegations of Argentina, Australia, Austria, Canada, France, Germany, Japan, Korea, Malawi, the Netherlands, South Africa, Sweden, the United Kingdom, and the United States, proposing a framework for the fundamental stages of the criminal process of the Court, 27 March 1998, A/AC.249/1998/WG.4/DP.36, http://www.legal-tools.org/doc/c44e59/,p. 2.

85 See, United Nations General Assembly, Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, 4 February 1998 Google Scholar, A/AC.249/1998/L.l3, p. 95.

86 Preparatory Committee on the Establishment of an International Criminal Court, Working Group on Procedural Matters, Proposal Submitted by the Delegations of Argentina, Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Japan, Lesotho, Malawi, Mexico, the Netherlands, New Zealand, Norway, the Republic of Korea, Singapore, South Africa, Sweden, United States of America, United Kingdom, 1 April 1998, A/AC.249/1998/WG.4/DP.40, p. 1; http://www.legaltools.org/doc/18aea9/.

87 See article 19 (1) of the ICTY Statute,; article 18 (I) of the ICTR Statute (defining the standard for review of indictment as whether a prima facie case has been established); See also, ICTY Prosecutor v. Slobodan Milošević, “Decision on Review of Indictment”, 22 November 2001, IT-01-51-I.

88 See e.g., Document in Support of the Appeal, para. 36.

89 Prosecutor v. Thomas Lubanga Dyilo, “Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence”’, 13 October 2006, ICC-01/04-01/06-568 (OA 3), para. 54 (acknowledging that the Prosecutor may continue his investigation beyond the confirmation hearing, but stating that “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing”).

90 Article 61 (3) of the Statute; rules 121 (2) (c), 121 (10) of the Rules of Procedure and Evidence.

91 See Document in Support of the Appeal, paras 7, 36.

92 See Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled ‘Decision on the admission into evidence of materials contained in the prosecution’s list of evidence”’, 3 May 2011, ICC-01/05-01/08-1386 (OA 5, OA 6) (hereinafter: “Bemba OA 5, OA 6 Judgment”), para. 76.

93 Bemba OA 5, OA 6 Judgment, para. 77.

94 Bemba OA 5, OA 6 Judgment, para. 80.

95 Prosecutor v. Thomas Lubanga Dyilo, “Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”’, 14 December 2006, ICC-01/04-01/06-773 (OA 5) (hereinafter: “Lubanga OA 5 Judgment”), para. 50.

96 Lubanga OA 5 Judgment, para. 51.

97 See, Bemba OA 5, OA 6 Judgment, para. 76.

98 Rule 121 (7) of the Rules of Procedure and Evidence.

99 See Impugned Decision, paras 49-51.

100 Document in Support of the Appeal, paras 48-49.

101 Document in Support of the Appeal, para. 50.

102 “English version of ICC-01/04-01/10-311-Conf-Anx A Prosecution’s document containing the charges submitted pursuant to Article 61(3) of the Statute”, 3 August 2011, ICC-01/04-01/10-330-Conf-AnxA-Red (hereinafter: “Document Containing the Charges”), para. 106.

103 Document Containing the Charges, para. 110.

104 Document Containing the Charges, para. 115.

105 Document Containing the Charges, para. 115.

106 Document Containing the Charges, para. 116.

107 Document Containing the Charges, para. 117.

108 Document Containing the Charges. para. 117.

109 Document Containing the Charges. para. 118.

110 Document Containing the Charges, para. 121.

111 Document Containing the Charges. para. 122.

112 Impugned Decision, paras 108 et seq.

113 Impugned Decision, para. 266.

114 Impugned Decision, para. 267.

115 Impugned Decision, paras 270-289.

116 Impugned Decision, paras 276-285.

117 Impugned Decision, para. 276.

118 Impugned Decision, paras 278-82.

119 Impugned Decision, para. 291, referring to Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, “Décision sur la confirmation des charges”, dated 29 January 2007 and registered on 2 February 2007, ICC-01/04-01/06-803, para. 344.

120 Impugned Decision, para. 292.

121 Impugned Decision, paras 293-339.

122 Impugned Decision, para. 303 (building on a sub-finding in paragraph 299 that the evidence did not provide “substantial grounds to believe that the Suspect contributed to the FDLR’s alleged plan of attacking civilians by agreeing to conduct an international media campaign in support of it”).

123 Impugned Decision, para. 315.

124 Impugned Decision, para. 320.

125 Impugned Decision, para. 339.

126 Dissent, para. 65.

127 Dissent, para. 105.

128 Dissent, para. 112.

129 Document in Support of the Appeal, para. 51.

130 Document in Support of the Appeal, para. 50.

131 Document in Support of the Appeal, para. 67.

132 Document in Support of the Appeal, paras 52-58.

133 Document in Support of the Appeal, paras 59-60.

134 Document in Support of the Appeal, paras 61-66.

135 Response to the Document in Support of the Appeal, para. 56.

136 Response to the Document in Support of the Appeal, para. 54.

137 Response to the Document in Support of the Appeal, paras 55-57, referring to Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, “Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’”, 8 December 2009, ICC-01/04-01/06-2205 (OA 15, OA 16), para. 92.

138 Response to the Document in Support of the Appeal, para. 56.

139 Response to the Document in Support of the Appeal, paras 62 et seq.

140 Response to the Document in Support of the Appeal, paras 57-61.

141 Response to the Document in Support of the Appeal, para. 57.

142 Response to the Document in Support of the Appeal, para. 58.

143 Response to the Document in Support of the Appeal. para. 61.

144 Response to the Document in Support of the Appeal, para. 60.

145 Response to the Document in Support of the Appeal. footnote 12.

146 Response to the Document in Support of the Appeal, footnote 12 (referring to Transcript of 20 September 2011, ICC-01/04-01/10-T-8-CONF-FRA (ET). p. 4. lines 10-13).

147 Impugned Decision, para. 29 (referring to Prosecutor v. Thomas Lubanga Dyilo, Décision sur la confirmation des charges”, dated 29 January 2007 and registered on 2 February 2007, ICC-01/04-01/06-803, para. 344).

148 Impugned Decision, para. 292.

149 See, footnote 24 supra; See also Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 6 January 2012 entitled ‘Decision on the defence’s 28 December 2011 “Requête de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo””’, 5 March 2012, ICC-01/05-01/08-2151-Red (OA 10), para. 29; Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, “Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled ‘Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation”’, 17 February 2012, ICC-02/05-03/09-295 (OA 2), para. 20; Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled ‘Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence”’, 19 November 2010, ICC-01/05-01/08-1019 (OA 4), para. 69; Prosecutor v. Jean-Pierre Bemba Gombo, “Corrigendum to Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled ‘Decision on the Admissibility and Abuse of Process Challenges”’, dated 19 October 2010 and registered on 26 October 2010, ICC-01/05-01/08-962-Corr (OA 3), para. 102; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled ‘Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”’, 12 July 2010, ICC-01/04-01/07-2259 (OA 10), para. 34; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case”, 25 September 2009, ICC-01/04-01/07-1497 (OA 8) (hereinafter: “Katanga OA 8 Judgment”), para. 37; Prosecutor v. Joseph Kony and others, “Judgment on the appeal of the Defence against the ‘Decision on the admissibility of the case under article 19 (1) of the Statute’ of 10 March 2009”, 16 September 2009, ICC-02/04-01/05-408 (OA 3), paras 48, 80; Prosecutor v. Joseph Kony and others, “Judgment on the appeals of the Defence against the decisions entitled ‘Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06’ of Pre-Trial Chamber II”, 23 February 2009, ICC-02/04-179, para. 40 Situation in the Democratic Republic of the Congo, “Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”’, 16 July 2006, ICC-01/04-169 (OA), para. 84.

150 Impugned Decision, para. 292.

151 Impugned Decision, paras 293-339.

152 Impugned Decision, para. 292.

153 Decision Granting Leave to Appeal, para. 38.

154 See Katanga OA 8 Judgment, para. 38; Prosecutor v. Jean-Pierre Bemba Gombo, “Corrigendum to Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled ‘Decision on the Admissibility and Abuse of Process Challenges”’, dated 19 October 2010 and registered on 26 October 2010, ICC-01/05-0l/08-962-Corr (OA 3), paras 103-104; Prosecutor v. Joseph Kony and others, “Judgment on the appeal of the Defence against the ‘Decision on the admissibility of the case under article 19 (1) of the Statute’ of 10 March 2009”, 16 September 2009, ICC-02/04-01/05-408 (OA 3), para. 51.

155 Katanga OA 8 Judgment, para. 38.

1 See Judgment, paras 66-68.

2 Impugned Decision, para. 292.

3 Impugned Decision, para. 292.

4 See e.g, Impugned Decision, paras 304-315.

5 Decision Granting Leave to Appeal, para. 38.

6 Document in Support of the Appeal, para. 52.

7 Document in Support of the Appeal, paras 52-66.

8 Response to the Document in Support of the Appeal, footnote 12.

9 Impugned Decision, para. 285.

10 Prosecutor v. Thomas Lubanga Dyilo, “Decision on the confirmation of charges”, 27 March 2007, ICC-0l/04-01/06-796-Conf, para. 337; G. Werle “Individual Criminal Responsibility in Article 25 ICC Statute”, Journal of International Criminal Justice 2007, pp. 953-975, at p. 971.

11 G. Werle, Principles of International Criminal Law, (T.M.C. Asser Press 2009), para. 365.

12 Situation in the Democratic Republic of Congo, “Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”’, 16 July 2006, ICC-01/04-169 (OA), para. 72, see also paras 68-84.

13 Impugned Decision, para. 276.

14 Impugned Decision, para. 277.

15 Impugned Decision, paras 278, 279.

16 Impugned Decision, para. 279.

17 Impugned Decision, para. 282.

18 Impugned Decision, para. 282.