INTRODUCTORY NOTE TO THE INTERNATIONAL CRIMINAL COURT: PROSECUTOR V. CALLIXTE MBARUSHIMANA: 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'

摘要

On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarashimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Democratiques de Liberation du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber's decision on three separate issues, all of which were rejected. The decision deserves special attention for several reasons. At the outset, this is the first decision rejecting charges against a suspect before the ICC that was appealed and the rejection subsequently confirmed on appeal. Moreover, the decision sets out the parameters of the Pre-Trial Chambers' powers during the confirmation process, and seems to have solidified the Pre-Trial Chambers' position as an early arbiter of evidence, not simply a barrier against prima facie baseless charges. Further, the decision tackled, albeit indirectly, the important issue of how and when the Prosecution is supposed to finalize its investigations in a case, which touches upon the principle of prosecutorial independence and raises some important practical considerations. Finally, the judgment also discusses the type of contribution required for criminal liability pursuant to Article 25(3)(d) of the Statute.