Today, Single Judge Cuno Tarfusser, acting on behalf of Pre-Trial Chamber I of the International Criminal Court (ICC), issued a decision postponing the confirmation hearing in the case against Ahmad A1 Faqi A1 Mahdi, a suspected rebel charged with war crimes arising from the alleged destruction of cultural property in Mali. The decision comes as no surprise, as confirmation proceedings in nearly every case that has come before the ICC have been postponed at least once, tacking on weeks or months to an already lengthy process intended only to ensure that the charges in a case go beyond “mere theory or suspicion” and that a trial on “wrongful and wholly unfounded charges” is avoided [Lubanga Confirmation Decision, para 37]. This process, which is unique to the ICC and which has come under increasing scrutiny from both outside and within the Court, is the subject of the latest report issued by the War Crimes Research Office, entitled The Confirmation of Charges Process at the International Criminal Court: A Critical Assessment and Recommendations for Change.

Prior to committing a suspect to trial, a Pre-Trial Chamber of the ICC must hold a hearing to assess whether the Prosecution has presented sufficient evidence to establish substantial grounds to believe that the suspect bears responsibility for the charged crime(s) [Rome Statute, Art. 61]. In theory, the confirmation process is intended to achieve several goals, including ensuring prosecutorial fairness and efficiency, protecting the rights of the suspect, and promoting judicial economy. However, as a detailed review of the twelve confirmation hearings held at the ICC to date shows, in practice, the process has fallen far short of achieving these goals. Rather than promoting efficiency, the confirmation process has added significant time to the overall length of trials before the ICC, with the shortest amount of time between a suspect’s initial appearance and a decision on whether to confirm the charges being more than seven months and the longest period being more than two and a half years. (See table above.) Furthermore, the delay a suspect faces to actually get to trial does not end once the decision confirming charges is issued, as the parties may seek leave to appeal.

Once a Trial Chamber is finally constituted – a process that itself can take up to three months – the actual start of trial has frequently been delayed by issues relating to disclosure, translations, witness security, etc. (See table to the right.)

Issues regarding the precise nature of the charges against the accused have also persisted well into the trial due to Trial Chambers’ extensive use of a regulation that permits the Court to change the legal characterization of the facts during trial, meaning that the Court is spending on average more than fifteen months to confirm charges that may be substantially altered over the course of trial. Although one could argue that the confirmation process has protected certain suspects from lengthy trials on unmeritorious charges, the weakness in those cases suggests that the charges could have been disposed of pursuant to a process far less extensive than that which has come to characterize Article 61 proceedings.

Given the disconnect between the goals of the confirmation process and the way the process has played out in practice, it is clear that a fundamentally different approach is needed.

One way to bring about such a dramatic restructuring – albeit not the one we ultimately recommend – is to significantly expand the confirmation process in a manner that would result in a case being much more “trial ready” than is currently the case. Notably, some of the Court’s Pre-Trial Chambers appear to be increasingly moving towards this approach. For instance, although the provisions governing disclosure only require that the parties share with each other and with the Pre-Trial Chamber the evidence upon which they intend to rely at the confirmation hearing, some Chambers have required that the Prosecutor disclose all exculpatory evidence prior to confirmation. Additionally, one Chamber went so far as to adjourn the confirmation proceedings to demand more evidence from the Prosecution on the theory that the Prosecution is required to present its strongest case against the suspect at the confirmation hearing. This position not only directly contradicts the minimal burden established by Article 61, but is also at odds with the fact that Article 61 expressly authorizes the Prosecution to rely on summary evidence at confirmation. Furthermore, even if a prolonged confirmation process reduces the amount of preparation required at the trial stage, there will undoubtedly be issues that need to be resolved by the Chamber ultimately charged with deciding on the guilt of the accused, meaning the overall time savings are likely to be insignificant in terms of protecting the suspect’s right to a speedy trial and judicial efficiency. A prolonged confirmation stage would be even more problematic for suspects whose cases are ultimately not confirmed, as it means such suspects could be deprived of liberty for a substantial period of time before a determination is made that the charges against them did not meet the low standard to be applied at confirmation.

The other option for a fundamental change in the confirmation process is to significantly scale back the proceedings, which is the approach recommended in the WCRO’s report. Specifically, we recommend requiring that the confirmation process be conducted solely on the basis of written submissions and that it be completed within ninety days of a suspect’s first appearance before the Court, absent exceptional circumstances. As detailed in the report, this could be achieved through a series of amendments to the ICC’s Rules of Procedure and Evidence and Regulations of the Court, coupled with a basic shift in the approach of the Pre-Trial Chambers regarding their role in the confirmation process.

We recognize that we are calling for some significant changes, and that those changes involve rule amendments, which have been challenging in the past. However, we believe this is a real opportunity to make a difference not only in the practice of the Court in ways that will save time and resources, but also in the perception of justice as carried out by the ICC. It is no secret that the Court has been facing increasing criticism over the slow pace of proceedings and is the target of increasing frustration, and these changes represent an opportunity to improve an institution in which so much has already been invested and which holds so much promise.