An Introduction To The International Criminal Court - Institute for ...

140 introduction to the international criminal court
logically from the nature of such a hearing. At the hearing itself, the Prosecutor
is required to support each specific charge with ‘sufficient evidence
to establish substantial grounds to believe that the person committed the
crime charged’. 81 The Prosecutor can do this by means of documentary or
summary evidence, and is not required to call the witnesses expected to testify
at the trial itself. The accused may challenge the Prosecutor’s evidence
and present evidence.
The confirmation hearing seems to resemble preliminary hearings held
under common law procedure. It allows the Court to ensure that a prosecution
is not frivolous and that there is sufficient evidence for a finding
of guilt, thereby protecting the accused from prosecutorial abuse. From the
standpoint of the defendant, it also provides a useful opportunity to be
informed of important evidence in the possession of the prosecution and
even to test the value of such evidence, at least in a superficial way, during
a judicial proceeding. Where the Statute is not clear is in the usefulness of
submitting defence evidence during the confirmation hearing. While the
Statute invites the defence to present evidence at this stage, it is not obvious
that contradictory evidence adduced by the defence can have any effect
upon the determination of the existence of ‘sufficient evidence’. The Pre-
Trial Chamber may well decide that whether or not defence evidence raises
doubts about the validity of Prosecution evidence is a matter for the trial
court and not a pre-trial issue.
At the close of the confirmation hearing, the Pre-Trial Chamber may conclude
that there is sufficient evidence and commit the person for trial. Upon
confirmation, the Presidency of the Court is to constitute a Trial Chamber
responsible for subsequent proceedings. 82 The Trial Chamber is to confer
with the parties and address a number of preliminary matters, including
the language or languages to be used at trial. Its powers also include provision
‘for disclosure of documents or information not previously disclosed,
sufficiently in advance of the commencement of the trial to enable adequate
preparation for trial’. 83 Finally, the Trial Chamber may make orders
for joinder or severance of charges against more than one accused.
But the Pre-Trial Chamber may also decline to confirm the charges, a decision
that does not prevent the Prosecutor from returning with a subsequent
request on the basis of additional evidence. There is also a third option:
the Pre-Trial Chamber may adjourn the hearing and ask the Prosecutor to
81 Rome Statute, Art. 61(5). 82 Ibid., Art. 61(11). 83 Ibid., Art. 64(3)(c).