No CrossRef data available.
Article contents
Burden and Standard of Proof in Defence Challenges to the Jurisdiction of the International Criminal Court
Published online by Cambridge University Press: 27 January 2015
Abstract
The jurisdiction of the International Criminal Court has remained largely uncontested during the first 10 years of its operation. Today, the jurisdictional cooling-off period seems to have run its course. The Prosecutor has opened the first Article 15 investigations and prosecutions in Kenya. The defence has been active in challenging the jurisdiction of the Court. Judges at the pre-trial stage have taken a more inquisitive approach to jurisdictional assessments. This awakening has led to the identification of novel legal issues. One of them is the applicable burden and standard of proof for defence challenges to jurisdiction. So far, this issue has been addressed largely through interpretation of the Statute. The Court's first decisions seem to fluctuate significantly on this point. From pronouncements accepting that such burden and standard do exist and seeking to articulate them, to rulings implying that they do not exist altogether, the Court's case law reveals a measure of inconsistency and a lack of reasoning. This article seeks to expose the different positions assumed on the matter, typically as a result of the judges’ efforts to balance procedural efficiency and fair trial considerations. In doing so, we will reflect critically on the causes and effects of the current state of the law and propose a reorientation of the case law through the use of other relevant international jurisprudence.
- Type
- HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals
- Information
- Copyright
- Copyright © Foundation of the Leiden Journal of International Law 2015
References
1 Referral of the ‘Union of the Comoros’ with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip, pursuant to Arts. 12, 13, and 14 of the Rome Statute. See ‘Situation on Registered Vessels of the Union of the Comoros, The Hellenic Republic and The Kingdom of Cambodia’, ICC-01/13, 14 May 2013.
2 Ibid., para. 4 et seq.
3 Ibid., paras. 18–19.
4 Rules of Procedure and Evidence for the International Criminal Court, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, ICC-ASP/1/3 and Corr.1, 3–10 September 2002, part II.A [hereinafter ‘the Rules’ or ‘RPE’].
6 Basically, 13 rules seem directly relevant to evidence. G. Boas et al., International Criminal Procedure (2011), Vol. III, at 335–6 [hereinafter ‘Boas et al.’].
7 RPE Rules 58–62 for jurisdiction, and Rules 63–72 for evidence.
8 C. Schuon, International Criminal Procedure: A Clash of Legal Cultures (2010), at 287; Boas et al., supra note 6, at 334–5. From recent case-law on jurisdiction and the limits of discretion, see Prosecutor v. Laurent Gbagbo, Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of Proceedings, ICC-02/11-01/11 OA 2, 12 December 2012, paras. 22–6 [hereinafter ‘Gbagbo Jurisdictional Appeal Decision’].
9 J. Lindenmann, ‘The Rules of Procedure and Evidence on Jurisdiction and Admissibility’, in H. Fischer, C. Kress, and S. Lüder, International and National Prosecution of Crimes under International Law (2001), 173, at 174–5, and 189.
10 See Boas et al., supra note 6, at 337.
11 Piragoff, D., ‘Evidence’, in Lee, R. S. (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), 349Google Scholar, at 351–4; Schuon, see supra note 8, at 287.
12 Rome Statute Art. 64 (9); RPE Rule 63(2).
13 Gaynor, F. et al., ‘Law of Evidence’, in Sluiter, G. et al., International Criminal Procedure: Principles and Rules (2013), 1038Google Scholar–9. See also M. Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (2013), 156–7.
14 Situation in the Republic of Kenya, Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010 [hereinafter ‘Kenya Authorization Decision’], paras. 70–71 et seq.
15 Among many others, see Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a warrant of arrest, Article 58, ICC-01/04-01/06-8-US-Corr., 10 February 2006, paras. 21–28.
16 Prosecutor v. Callixte Mbarushimana, Decision on the ‘Defence Challenge to the Jurisdiction of the Court’, ICC-01/04-01/10-451, 26 October 2011 [hereinafter ‘Mbarushimana Decision on Jurisdiction’], para. 4.
17 Ibid.
18 Taylor, M., ‘Article 19’, in de Hert, P.et al. (eds.), Code of International Criminal Law and Procedure, Annotated (2013)Google Scholar [hereinafter ‘de Hert et al. (eds.), Code of International Criminal Law], at 121–2.
19 Ibid.
20 Mbarushimana Decision on Jurisdiction, supra note 16, para. 4.
21 E. Groulx et al., ‘Article 67’, in de Hert et al. (eds.), Code of International Criminal Law, supra note 18, 295 at 319–20. See further, Prosecutor v. Bemba, Judgment on appeals from both the Prosecutor and Mr. Bemba against the decision of Trial Chamber III of 19 November 2010, entitled ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution's List of Evidence’, ICC‐01/05‐01/08-1386, 3 May 2011, para. 72. The discussion here is concerned solely with Art. 67(1)(i) and not other provisions of Art. 67.
22 Jorgic v. Germany, Judgment of 12 July 2007, [2007-III] ECHR, para. 64; Ould Dah v. France, Decision of 17 March 2009, [2009-I] ECHR, at 264. Further, M. Vagias, The Territorial Jurisdiction of the International Criminal Court (2014), at 70–73, and 124–30.
23 See below, section 3.4.
24 M. Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events (2013), at 136–42.
25 Rome Statute Art. 58(1)(a).
26 Rome Statute Art. 61(7).
27 Rome Statute Art. 66(3).
28 See Klamberg, supra note 24, at 115–16 on factum probans and the relevant distinctions of evidence.
29 Rome Statute Arts. 63 and 66. Further, see Acquaviva, G., ‘Written and Oral Evidence’, in Carter, L. and Pocar, F. (eds.), International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems (2013), at 103Google Scholar–8.
30 Prosecutor v. Lubanga, Decision on the Admissibility of Four Documents, ICC-01/04-01/06-1399, 13 June 2008, para. 25.
31 For the indicative division between specific and subsidiary facts, see Prosecutor v. Banda and Jerbo, Corrigendum of the ‘Decision on the Confirmation of Charges’, ICC-02/05-03/09-121-Corr-Red., 7 March 2011, paras. 36–38. For different standards relating to the proof of facts, see Farthofer, H., ‘Evidence’, in Safferling, C. (ed.), International Criminal Procedure (2012), at 492Google Scholar.
32 RPE Rule 69.
33 Rome Statute Art. 69(6).
34 Prosecutor v. Mbarushimana, Warrant for the Arrest of Callixte Mbarushimana, ICC-01/04-01/10-2, 11 October 2010.
35 Ibid., paras. 9–10.
36 Ibid. See also, Rastan, R., ‘The Jurisdictional Scope of Situations before the International Criminal Court’, (2012) 23 Criminal Law Forum 1CrossRefGoogle Scholar, at 2–5.
37 Prosecutor v. Mbarushimana, Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana, ICC-01/04-01/12-1, 11 October 2010, para. 7.
38 Ibid.
39 Prosecutor v. Mbarushimana, Defence Challenge to the Jurisdiction of the Court, ICC-01/04-01/10-290, 20 July 2011, paras. 12–13 [hereinafter ‘Mbarushimana Defence Challenge’]. See Rastan, supra note 36, at 5–9.
40 Mbarushimana Decision on Jurisdiction, supra note 16.
41 Ibid., para. 4.
42 Ibid., para. 5.
43 Ibid.
45 Mbarushimana Defence Challenge, ibid. paras. 31–38.
46 Ibid., para. 41.
47 See Mbarushimana Decision on Jurisdiction, supra note 16, paras. 44–45.
49 Prosecutor v. Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009 [hereinafter ‘Bemba Confirmation Decision’].
50 Prosecutor v. Bemba Gombo, Confirmation of Charges Hearing of 12 January 2009, Transcript, at 71, 79.
51 Bemba Confirmation Decision, supra note 49, para. 24.
52 Ibid., para. 23. The idea for this standard may have stemmed from the celebrated Nicaragua judgment to which the Chamber refers in the previous paragraph – see Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 24, para. 29.
53 Kenya Authorization Decision, supra note 14, paras. 83 et seq. Judge Kaul Dissenting Opinion to Kenya Authorization Decision, ibid., paras. 21–22 et seq. Further, Kress, C., ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’, (2010) 23 LJIL 855CrossRefGoogle Scholar, at 857 et seq.
54 Judge Kaul, Dissenting Opinion to Kenya Authorization Decision, ibid., paras. 37–44, 51.
55 The Pre-Trial Chamber's examination of jurisdiction under Art. 15 in Kenya requires more elaborate examination. The early stage of the process did not prevent the judges from engaging in a rigorous assessment of jurisdiction. The questionable equation of the ‘appears to fall’ standard in Art. 15(4) with ‘a crime … within the jurisdiction’ in Art. 53(1)(a) seems to be largely responsible for this outcome. Kenya Authorization Decision, ibid., and Judge Kaul's Dissenting Opinion to Kenya Authorization Decision, ibid., paras. 14–15.
56 Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, ICC-01/09-02/11-1, 18 July 2012 [hereinafter: ‘Muthaura Decision on Summons’], para. 9; Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang, ICC-01/09-01/11-1, 08 March 2011 [hereinafter ‘Ruto Decision on Summons’], para. 9.
57 Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012 [hereinafter ‘Muthaura Confirmation Decision’], para. 23; Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, 23 January 2012 [hereinafter ‘Ruto Confirmation Decision’], para. 25.
59 Muthaura Confirmation Decision, paras. 33–35, Ruto Confirmation Decision, paras. 35–36.
60 Judge Kaul, Dissenting Opinion to the Muthaura Confirmation Decision, supra note 57.
61 Ibid., para. 33.
62 Ibid.
63 On the difference in philosophy between the French and Australian proposals that drove the debate on jurisdiction, see Lindenmann, supra note 9, at 177–80.
64 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’, ICC-01/04-01/06-568, 13 October 2006, paras. 53–54, and 56.
65 Ibid. See also, Prosecutor v. Laurent Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, para. 25.
67 From the literature, Jacobs, D., ‘The Importance of Being Earnest: The Timeliness of the Challenge to Admissibility in Katanga’, (2010) 23 LJIL 335CrossRefGoogle Scholar, at 339–41.
68 Ibid. The moment when the trial commences is not clearly defined in Art. 19(4) of the Rome Statute. In the Katanga admissibility decision, the Court considered this to be the moment when the Trial Chamber is constituted, whereas one year later in the Bemba decision, the Trial Chamber considered this moment to arise when the evidence is called and the counsel addresses the merits of the case. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)), ICC-01/04-01/07, 16 June 2009, para. 49. Prosecutor v. Bemba Gombo, Decision on the Admissibility and Abuse of Process Challenges, ICC-01-05/01-08, 24 June 2010, para. 210.
69 This is inspired by Judge Kaul's argument on another point; see Judge Kaul, Dissenting Opinion to the Muthaura Confirmation Decision, supra note 57, para. 39.
70 For the same reasoning as regards admissibility, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah al-Senussi, Decision Requesting further Submissions on Issues Related to the Admissibility of the Case against Saif Al-Islam Gaddafi, ICC-01/11-01/11-239, 7 December 2012, paras. 10–11; in the same case, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah al-Senussi, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi, ICC-01/11-01/11-344-Red., 31 May 2013, para. 54.
71 Judge Kaul, Dissenting Opinion to the Muthaura Confirmation Decision, supra note 57, para. 33.
72 Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, Appeals Chamber, CC-02/05-01/09-OA, 3 February 2010, para. 33.
73 Ibid., para. 31.
74 See supra note 52.
75 See supra note 53.
76 Prosecutor v. Ruto et al., Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’, ICC-01/09-01/11-414, 24 May 2012, [hereinafter ‘Ruto Jurisdictional Appeal Decision’]; Prosecutor v. Muthaura et al., Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’, ICC-01/09-02/11-425, 24 May 2012, [hereinafter ‘Muthaura Jurisdictional Appeal Decision].
77 Prosecutor v. Muthaura et al., Document in Support of Appeal on behalf of Uhuru Muigai Kenyatta and Francis Kirimi Muthaura pursuant to Article 82(1)(a) against Jurisdiction in the ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute’, ICC-01/09-02/11-399, 14 February 2012, paras. 18–19 et seq.
78 Ibid.
79 Ibid., paras. 180–1.
81 Ibid.
83 Ibid., Muthaura Jurisdictional Appeal Decision, para. 33; Ruto, para. 27.
84 Ibid., Muthaura Jurisdictional Appeal Decision, para. 35; Ruto, para. 29.
85 Ibid., Muthaura Jurisdictional Appeal Decision, para. 36; Ruto, para. 30.
86 Ibid.
87 Ibid., Muthaura Jurisdictional Appeal Decision, para. 37; Ruto Jurisdictional Appeal Decision, para. 31.
88 Ibid.
89 Bemba Confirmation Decision, supra note 49, para. 24. See also above section 3.3.
90 Ibid.
91 Prosecutor v. Mbarushimana, Defence Request for Disclosure, ICC-01/04-01/10-29, 14 December 2010), operative paragraph, where the Defence requested the PTC to ‘order the Prosecution to effect immediate disclosure of all materials necessary for enabling Defence challenges pursuant to both Article 19(2)(a) of the Rome Statute and Rule 117(3) of the [RPE]’. Prosecutor v. Mbarushimana, Defence Request under Article 57(3)(b) of the Rome Statute for State Cooperation from the Democratic Republic of the Congo, ICC-01/04-01/10-30, 28 December 2010, paras. 1, 5, and 15, where the Defence requested the PTC to order the DRC to provide the Defence with supporting documentation ‘in order to pursue its jurisdictional challenge’ under Art. 19(2)(a) of the Rome Statute. Prosecutor v. Mbarushimana, Defence Request for the Compliance of the Democractic Republic of the Congo with ICC-01/04-01/10-56-Conf-Exp, ICC-01/04-01/10-123, 27 April 2011, para. 5, where the Defence requests the PTC to remind the DRC to co-operate by transmitting relevant documentation, ‘given the desirability, if not the obligation, to file a jurisdictional challenge’.
92 From 14 December 2010 (ibid., Prosecutor v. Mbarushimana, Defence Request for Disclosure, ICC-01/04–01/10–29, 14 December 2010), until 19 July 2011 to be exact, when the defence filed its challenge to jurisdiction.
93 Friman, H., ‘Interlocutory Appeals in the Early Practice of the International Criminal Court’ in Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2009), at 559Google Scholar.
94 Gbagbo Jurisdictional Appeal Decision, supra note 8, at paras. 101–3.
95 Prosecutor v. Katanga and Ngundjolo, Decision on the Admissibility for the Confirmation Hearing of the Transcripts of Interview of Deceased Witness 12, ICC-01/04-01/07-412, 18 April 2008, at 5; Prosecutor v. Lubanga, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled ‘Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’, ICC-01/04-01/06-774, 14 December 2006, para. 47 (explaining that the reliability of a witness testimony may not be fully tested at the confirmation hearing as the evidence may satisfy the lower threshold required for the purposes of that process).
96 Ibid., and Rome Statute Art. 66.
97 Supra at note 95, (‘Second Decision’), para. 90. Note however that in Prosecutor v. Lubanga, Decision on the Status before the Trial Chamber of the Evidence Heard by the Pre-Trial Chamber and the Decisions of the Pre-Trial Chamber in Trial Proceedings, and the Manner in which Evidence shall be Submitted, ICC-01/04-01/06-1084, 13 December 2007, para. 6, the Trial Chamber has indicated that it will depart only if it is necessary or appropriate from an earlier finding on the evidence made by the Pre-Trial Chamber, not least for reasons of judicial comity.
98 See supra note 64 and text.
99 Judge Kaul, Dissenting Opinion to the Muthaura Confirmation Decision, supra note 57, para. 39.
100 Ibid.
101 Ibid.
102 Among many others, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04/-01/07-717, 30 September 2008, paras. 449–51.
103 Muthaura Jurisdictional Appeal Decision, supra note 76, para. 37.
104 See Arts. 19(2), 81(1)(a) ICC Statute and RPE Rule 58 paras. 1–3.
105 For example, in Gbagbo the Court used its earlier decisions on admissibility in Kony and Bemba to explain that procedural errors in jurisdictional proceedings fall under Art. 82(1)(a). Gbagbo Jurisdictional Appeal Decision, supra note 8, para. 36.
106 Kenya Authorization Decision, supra note 14, para. 52. The relevant aspect here is complementarity.
107 Situation in the Republic of Kenya, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, ICC-01/09-01/11-307 (OA), 30 August 2011, para. 61 [hereinafter Kenya Admissibility Appeal Decision], para. 39.
108 For State challenges to admissibility, Kenya Admissibility Appeal Decision, ibid., para. 62. For defence challenges to admissibility, Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Admissibility and Abuse of Process Challenges, ICC-01/05-01/08-802, Tr. Ch. III, 24 June 2010, [hereinafter ‘Bemba Admissibility Decision’], para. 201.
109 Bemba Admissibility Decision, ibid., para. 204.
110 Ibid.
111 Ibid., paras. 68–70.
112 Ibid., para. 72.
113 Ibid., para. 73.
114 Ibid., para. 203.
115 Ibid.
116 Ibid., para. 203.
117 There is support for this contention in literature as regards international proceedings; Kazazi, K. M. and Shifman, B. E., ‘Evidence before International Tribunals – Introduction’, (1999) 1 International Law Forum 93Google Scholar, at 95; Fairlie, M. A., ‘Establishing Admissibility at the International Criminal Court: Does the Buck Stop with the Prosecutor, Full Stop?’, (2005) 39 The International Lawyer 817Google Scholar, at 827, 839.
118 In the Extraordinary Review decision, the Appeals Chamber considered that 21 examples of domestic legislation did not sufficiently prove the contention of the Prosecutor that there is a general principle of law allowing the Prosecutor to file an appeal against a refusal of leave to appeal. The Chamber endorsed a very high, universal adoption standard. Situation in Dem. Rep. Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04, 13 July 2006, paras. 27, 31–32. Moreover, in its decision on witness proofing, the Trial Chamber rejected the argument of the Prosecutor that substantive preparation of witnesses before trial is allowed as a matter of a general principle of law. The Trial Chamber stated that this conclusion was warranted, because the Prosecutor had failed to provide support for this contention from Romano-Germanic systems and relied solely on common law jurisdictions. Prosecutor v. Thomas Lubanga Dyilo, Decision Regarding the Practices Used to Prepare and Familiarize Witnesses for Giving Testimony at Trial, ICC-01/04-01/06-1049, 30 November 2007, para. 41. In detail, Vasiliev, S., ‘General Rules and Principles of International Criminal Procedure: Definition, Legal Nature, and Identification’, in Sluiter, G. and Vasiliev, S. (eds.), International Criminal Procedure: Towards a Coherent Body of Law, (2009), at 70–71Google Scholar, Bitti, G., ‘Article 21 Of The Statute Of The International Criminal Court And The Treatment Of Sources Of Law In The Jurisprudence Of The ICC’, in Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court, 2009, 299–300Google Scholar.
119 Among many others, Pellet, A., ‘Applicable Law’, in Cassese, A.et al., The Rome Statute of the International Criminal Court: A Commentary (2002), at 1075Google Scholar et seq.
120 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Appeal against the decision of the Pre-Trial Chamber I entitled ‘Decision on the Prosecutor's Application for Warrants of Arrest, Article 58’, ICC-04-01-169, A. Ch., 13 July 2006, paras. 47–48.
121 M. Taylor, ‘Article 19’, supra note 18, at 121.
122 Kenya Admissibility Appeal Decision, supra note 107.
123 For the US experience, see Clermont, K. M., ‘Jurisdictional Fact’, (2005–6) 91 Cornell L. Rev. 973Google Scholar.
124 Jacobs, D., ‘Standard of Proof and Burden of Proof’, in Sluiter, G. et al. (eds.), International Criminal Procedure, Principles and Rules (2013), 1129Google Scholar, at 1148; Bantekas, I., ‘Head of State Immunity in the Light of Multiple Legal Regimes and Non-Self-Contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction against the Background of the 2003 Iraq War’, (2005) 10 Journal of Conflict and Security Law 21CrossRefGoogle Scholar at 36.
125 Kinsch, P., ‘On the Uncertainties Surrounding the Standard of Proof in Proceedings before International Courts and Tribunals’, in Venturini, G. and Bariatti, S., Individual Rights and International Justice – Liber Fausto Pocar (2009), 427Google Scholar, at 432.
126 Prosecutor v. Al-Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-3, 3 March 2009, para. 44. For the definition of lacuna, see Situation in Democratic Republic of the Congo (Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04, 13 July 2006, para. 39. Prosecutor v. Muthaura, Decision on the ‘Request to Make Oral Submissions on Jurisdiction under Rule 156(3)’, ICC-01/09-02/11-421, 01 May 2012, para. 11.
127 In this spirit, Vasiliev, S., ‘General Rules and Principles of International Criminal Procedure: Definition, Legal Nature and Identification’, in Sluiter, G. and Vasiliev, S. (eds.), International Criminal Procedure: Towards a Coherent Body of Law (2009), at 71Google Scholar – it refers particularly to the function of general principles as an ‘important channel of communication between international criminal procedure and national legal systems’.
128 Case Concerning the Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment of 12 December 1996, [1996] ICJ Rep. 803, at 856, paras. 33–34 (Separate Opinion of Judge Higgins).
129 Ibid. Further, from the field of investment arbitration, Vasani, B. S. and Foden, T. L., ‘Burden of Proof Regarding Jurisdiction’, in Yannaca-Small, K. (ed.), Arbitration under International Investment Agreements (2010), 271Google Scholar at 275–6.
130 E. Valencia-Ospina, ‘Evidence before the International Court of Justice’, (1999) 1 International Law Forum 202 at 203. Further, Fairley, M. A. and Powderly, J., ‘Complementarity and Burden Allocation’, in Stahn, C. and El Zeidy, M. M., The International Criminal Court and Complementarity: From Theory to Practice, (2011), 642CrossRefGoogle Scholar, at 651–2, arguing that too much flexibility would leave the Court vulnerable to criticism due to lack of predictability.
131 Generally, see D. Jacobs, supra note 124, at 1148 (‘[w]here discretion is high, there is no point in defining a standard of proof in too complex a fashion, because it will not necessarily be judicially evaluated afterwards’).
132 State co-operation in the production of documentary and other evidence in jurisdictional proceedings – and the lack thereof – have been one of the main reasons of the protracted Mbarushimana litigation. See supra note 91 and accompanying text.
133 For this line of reasoning in proceedings before the International Court of Justice, see R. Kolb, The International Court of Justice (2013), 944; and Tomuschat, C., ‘Reparations in Case of Genocide’, (2007) 5 Journal of International Criminal Justice 905CrossRefGoogle Scholar at 908.
134 See supra note 52.
135 R. Kolb, supra note 133.
136 Benzing, M., ‘Evidentiary Issues’, in Zimmermann, A.et al. (eds.), The Statute of the International Court of Justice (2012), at 1265Google Scholar–6, specifically on the proposition that ‘fully conclusive evidence’ stands for proof beyond reasonable doubt in the international civil procedural context. Further, C. Brown, A Common Law of International Adjudication (2007), at 99–100.
137 See supra note 87.
138 See supra note 114.