The First Decision of the ICC
Pre-Trial Chamber
International Criminal Procedure
Under Construction
Michela Miraglia*
Abstract
By its decision of 17 February 2005 to convene a status conference on the situation
in Democratic Republic of Congo, the ICC Pre-Trial Chamber I broadened its role by
referring to and interpreting the general provision contained in Article 57(3)(c) of the
ICC Statute. It resorted to the status conference in order to exercise general control
over the work of the Prosecutor that is not related to a specific occasion, with a view
to obtaining information about the investigations seven months after their initia-
tion. During this time, the Prosecutor had not let the Chamber know anything about
his progress and results. Arguably, the main reason behind the Chamber's decision
was its intention to both speed up the investigations and to take care of the rights
of the `prospective suspects' ç a special aspect of the `interest of justice' ç to whom
the delay could, obviously, be prejudicial. Thus, the Chamber somewhat shifted
the `equilibrium' between legal traditions reached in Rome, arguably taking on a
role more closely resembling an investigating judge than provided for in the Statute
and ICC Rules of Procedure and Evidence.
1. Introduction
On 17 February 2005, Pre-Trial Chamber I of the International Criminal Court
(ICC) issued the first decision in the history of the ICC, activating the judicial
`construing process' of the ICC Statute (ICCSt.) and of the Rules of Procedure
and Evidence (ICC RPE).
 Lecturer in Comparative and International Criminal Procedure, University of Genoa.
[CO529@unige.it]
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Journal of International CriminalJustice 4 (2006),188^195 doi:10.1093/jicj/mqi093
ß Oxford University Press, 2006, All rights reserved. For permissions please email: journals.permissions@oxfordjournals.org
Pre-Trial Chamber I1
decided to convene a status conference on the situation
in the Democratic Republic of Congo (DRC),2
into which the Chief Prosecutor
of the ICC had opened the first investigation of the Court in June 2004.3
Pre-Trial Chamber I made its decision after meeting with representatives
of the Office of the Prosecutor on 9 November 2004, in which they discussed
the progress of the investigation of the situation in the DRC. Previously,
the Pre-Trial Chamber requested that the Prosecutor submit documents
concerning the abovementioned situation. The Prosecutor refused to
transmit these, citing concerns about the confidentiality of some of the
requested documents.
Having considered all of these elements, the Pre-Trial Chamber, applying
Article 57(3)(c) ICCSt.,4
decided to hold a status conference in order `to provide
inter alia for the protection of victims and witnesses and the preservation of
evidence'.5
2. The Role of the Pre-Trial Chamber
in ICC Proceedings
The establishment of Pre-trial Chambers in the ICC procedural framework is a
meaningful example of the overall trend which informed the rule-making
process of the Rome Statute and the Rules of Procedure and Evidence.6
1 On 23 June 2004, the Presidency of the ICC decided to constitute three pre-trial chambers
(Decision Constituting Pre-Trial Chambers (ICC-Pres-01/04), Presidency, 6 June 2004). The
Presidency assigned the situation in DRC to Pre-Trial Chamber I, composed by Judge Claude
Jorda (President), Judge Akua Kuenyehia and Judge Sylvia Steiner (Decision Assigning the
Situation in the Democratic Republic of Congo to Pre-Trial Chamber I (ICC-01/04), Presidency,
5 July 2004). All ICC official decisions are available online at http://www.icc-cpi.int/cases.html
(visited 24 November 2005).
2 Decision to Convene a Status Conference, Situation in the Democratic Republic of Congo (ICC-01/
04), Pre-Trial Chamber I, 17 February 2005.
3 After having received several communications from individuals and non-governmental organi-
zations about crimes committed within the jurisdiction of the ICC on the territory of the
Democratic Republic of Congo (DRC), the Prosecutor of the Court, in September 2003, informed
the Assembly of the States Parties of his intention to seek authorization from a pre-trial cham-
ber to start an investigation proprio motu. In March 2004, the President of the DRC formally
referred the situation in his own country to the Prosecutor, who announced in June his
decision to open the first investigation of the ICC on crimes committed anywhere on the
territory of the DRC since 1 July 2002.
4 See infra note 9.
5 Decision to Convene a Status Conference, supra note 2, at 2.
6 See O. Fourmy, `Powers of the Pre-Trial Chamber', in A. Cassese, P. Gaeta and J. Jones (eds),
The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University
Press, 2002) 1207^1230, at 1208. In general, for role and powers of the Pre-Trial Chamber, see
M. Bergsmo and J. Pejic¤ , `Article 15', in O. Triffterer (ed.), Commentary on the Rome Statute of
the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 359^372;
M. Bergsmo and P. Krueger, `Article 53', ibid., 701^714; F. Guariglia, `Article 56', ibid., 735^741;
F. Guariglia and K. Harris,`Article 57', ibid., 743^752; A. Schlunk,`Article 58', ibid., 753^763.
The First Decision of the ICC Pre-Trial Chamber 189
The way in which the process is a compromise between different proposals
brought into negotiations by the delegates7
represents a novel solution com-
pared with the ones adopted in the traditional procedural models: Pre-trial
Chambers are to act as an organ of judicial scrutiny and review, not as an
investigating judge (juge d'instruction).8
The Rome Statute outlines the functions and powers of the Pre-Trial
Chamber, defining at the same time the relationship and interplay between it
and another organ of the Court: the Prosecutor. The first task of the Pre-Trial
Chamber is to decide whether or not to authorize any investigation, when the
Prosecutor is acting on his proprio motu power (Article 15(3) ICCSt.). Secondly,
the Pre-Trial Chamber decides on challenges to the Court's jurisdiction or on
the admissibility of a case prior to confirmation of the charges (Article 19(6)
ICCSt.). Thirdly, it reviews the Prosecutor's decision not to initiate an investiga-
tion or not to prosecute; thus, it directly narrows the prosecutorial discretion
of the investigation ç whether at the request of the state or of the Security
Council making a referral, or on its own initiative when the decision is justified
only by the lack of the interest of justice (Article 53(3)(a)(b) ICCSt.). The
Pre-Trial Chamber plays a critical role when the Prosecutor considers that a
specific investigative activity represents a unique opportunity to collect evi-
dence which may not be available in the future for the trial. The Pre-Trial
Chamber may take all the necessary measures, both at the request of the
Prosecutor or on its own initiative, to ensure the efficiency and the integrity
of the proceeding and to protect the rights of the defence (Article 56(1)(b) and
(3)(a) ICCSt.). In addition to such powers, Article 57 provides that the Pre-Trial
Chamber, at the request of the Prosecutor, may issue all the orders and
warrants necessary for the investigation and that it is up to Pre-Trial
Chamber to authorize the Prosecutor `to take specific investigative steps
within the territory of a State Party' (Article 57(3)(a) ICCSt.). Similarly,
the Pre-Trial Chamber `assists' those who have been arrested, or who have
appeared in Court pursuant to a summons, in preparing their defence;
in order to achieve this goal, it issues the necessary orders or seeks the neces-
sary cooperation pursuant to Part 9 of the Statute (Article 57(3)(b) ICCSt.).
Moreover, the Pre-Trial Chamber retains the general (proprio motu) powers
listed in Article 57(3)(c), related to preservation of evidence and protection of
victims, witnesses, arrested or summoned persons and national security.9
Furthermore, the Pre-Trial Chamber issues arrest warrants, summons to
appear upon the application of the Prosecutor (Article 58 ICCSt.) and decides
7 See F. Guariglia, `International Criminal Law Procedure (Investigation and Prosecution)', in
R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (The Hague:
Kluwer Law International, 1999) 227^238, at 238.
8 F. Guariglia, supra note 6, at 738.
9 Article 57(3)(c) ICCSt. provides as follows: `3. In addition to its other functions under this
Statute, the Pre-Trial Chamber may: . . . (c) Where necessary, provide for the protection and
privacy of victims and witnesses, the preservation of evidence, the protection of persons who
have been arrested or appeared in response to a summons, and the protection of national
security information.'
190 JICJ 4 (2006), 188^195
on all the questions de libertate, such as applications for interim release
(Article 60(2) ICCSt.). The Pre-Trial Chamber holds the confirmation hearing,
at the end of which it may decide to confirm the charges, having determined
that there are substantial grounds to believe that the person committed the
alleged crimes, or, if not, to adjourn the hearing and request the Prosecutor to
provide more evidence, to conduct further investigation or to amend a charge
(Article 61 ICCSt.).
The abovementioned powers are explicitly provided for by the Statute and
show that the role of the Pre-Trial Chamber is akin to an `umpire' that should
intervene only to a very limited extent in the merits of investigations and
prosecutions.
Moreover, through the reading of the aforementioned provisions, it appears
that the Pre-Trial Chamber, leaving aside the mentioned occasions when it
can act on its own initiative, has mainly a `passive' role ç one related to very
specific moments of the pre-trial phase ç that has to be stimulated by a
request submitted, or act performed by the Prosecutor (or the defence). By the
same token, Article 57(3)(c) ICCSt. envisions very general proprio motu powers
that the Pre-Trial Chamber can exercise over the course of the pre-trial phase,
paving the way for a more active and `interventionist' attitude, beyond the
minimum limits specified by the other provisions of the Statute.
3. Pre-Trial Chamber's First Decision: Textual
and `Hidden' Meanings
Going back to the short and rather plain 17 February 2005 decision, we should
ask whether it was simply a `routine decision' or should instead be considered
the first strategic move in the actio finium regundorum whose goal is to define
the boundaries of the Pre-Trial Chamber's powers in its interplay with the
Prosecutor.
Before drawing such a conclusion, we must clarify when a status conference
can be held according to the provisions contained in the Statute and the
ICC RPE.
Only Rules12110
and 13211
ICC RPE explicitly refer to this kind of conference.
These provisions provide that a status conference can be held on two different
10 Rule 121 ICC RPE provides in part as follows: `2. In accordance with article 61, paragraph 3,
the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the
Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has
been issued. During disclosure: (a) . . . (b) The Pre-Trial Chamber shall hold status conferences
to censure that disclosure takes place under satisfactory conditions. For each case, a judge of
the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her
own motion, or at the request of the Prosecutor or the Person.'
11 Rule 132 stipulates that: `1. Promptly after it is constituted, the Trial Chamber shall hold a
status conference in order to set the date of the trial. . . .2. In order to facilitate the fair and
expeditious conduct of the proceedings, the Trial Chamber may confer the parties by holding
status conferences as necessary.'
The First Decision of the ICC Pre-Trial Chamber 191
specific occasions: (i) before the confirmation hearing in order to
ensure that the disclosure between the Prosecutor and the defence
takes place under satisfactory conditions, and (ii) before the trial in order to
set its date or to facilitate the fair and expeditious conduct of the proceedings,
respectively.
The Prosecutor's view of the 17 February 2005 decision is expressed
in a Position Paper.12
He writes that `a status conference is a procedural
device which aims at efficiently organizing imminent or ongoing judicial
proceedings'.13
This appears to be correct from a formal point of view. Neither
the Statute nor the ICC RPE directly authorize the holding of a status confer-
ence at the present early stage of the proceedings. On the contrary, the
Rules allow for this procedural mechanism to be resorted to on the eve of the
confirmation hearing and of trial.
Moreover, even if we do not find in the Statute and in the Rules any explicit
provision forbidding the holding of an ex parte status conference, we must
note that usually (referring to the common-law systems, the birthplace of the
procedural device), this kind of conference is conceived of as an inter partes
hearing.14
Thus, it may be contended that Pre-Trial Chamber I broadened its role by
referring to and interpreting the general provision contained in Article 57(3)(c)
ICCSt: it resorted to the status conference in order to exercise a general
control over the work of the Prosecutor not related to a specific occasion
(such as, for example, the decision not to prosecute provided for in Article 53
ICCSt.). More specifically, the status conference was arranged in order to obtain
information about the progress of investigations during a very early stage of
the process. The Pre-Trial Chamber, it may be submitted, broadened its role
from a procedural viewpoint beyond the minimum explicit normative limits.
Furthermore, it also shifted the `equilibrium' between legal traditions reached
12 Prosecutor's Position on Pre-trial Chamber I's 17 February 2005 Decision to Convene a Status
Conference, Situation in the Democratic Republic of Congo (ICC-01/04), Prosecutor, 8 March
2005. Our comments relate to the `redacted version' of the position, available online at
www.icc-cpi.int/libraryorgans/otp/ICC0104Anx__2005March08-e.pdf (visited 24 November
2005).
13 Ibid., x 13. The Prosecutor touches upon three other points in the Position Paper: first, he
complains because the decision has been taken without consulting him, the relevant and
only party at this stage of the proceedings; secondly, he argues that the decision to hold the
status conference broadens the scope of the interaction between the Pre-Trial Chamber and
the Prosecution pictured in the Statute and the Rules: this can affect the `compromise reached
in Rome between different legal traditions' (ibid., x 3). Finally, he claims that this kind of
interpretation can reduce the impartiality of the Pre-Trial Chamber, influencing `any subse-
quent trial proceedings against the accused' (ibid., x 21).
14 O. Fourmy, supra note 6, at 1228, appears to state that even the need for an ex parte hearing has
to be discussed during an inter partes conference.
192 JICJ 4 (2006), 188^195
in Rome, arguably getting closer to being an investigating judge than provided
in the Statute and the ICC RPE.15
We are now in a position to answer the question asked above. The 17
February 2005 decision could be considered more than a `routine act' and
could represent the first step of the Pre-Trial Chamber toward defining its
powers in relation to the Prosecutor.We have highlighted the textual meaning
of the Pre-Trial Chamber I's decision (i.e. holding a status conference to obtain
information about the investigations and to control the Prosecutor's work).
We can, however, dig deeper, behind the `simple' written words and try to find
out whether that decision also has a `hidden' meaning.
The role of a Pre-Trial Chamber in the procedure of the ICC is aimed at
`supervising' the Prosecutor, principally, but not exclusively, when he decides
to investigate proprio motu. This control, from a strict procedural point of view,
should be strongly exercised in order to protect the `suspect'16
and balance the
Prosecutor's and the defence's positions during the investigations. The Statute
and the ICC RPE give this organ of the Court very few occasions to intervene
and perform this specific task during the first part of this phase of the proce-
dure (i.e. from the starting of the investigation to the issuance of a warrant or a
summons to appear).
Pre-Trial Chamber I decided to intervene using the general powers provided
for in Article 57(3)(c) ICCSt. and the status conference procedural device
after seven months of investigations during which the Prosecutor had not let
the Chamber know anything about their progress and results. Thus, it could be
assumed that this decision was made both to speed up the investigations
and also to take care of the rights of the `prospective suspects' ç a special
aspect of the `interest of justice' ç to whom the delay could, obviously, be
prejudicial.
Subsequent events support this view and should be considered a positive
result of the Pre-Trial Chamber's action. Only one month after the status con-
ference (19 April 2005), the Prosecutor informed Pre-Trial Chamber I of the
existence of a unique investigative opportunity, asking for measures under
Article 56.17
Pre-Trial Chamber I, having recognized the effective existence of
15 Pre-Trial Chamber I refers to Regulation 30 of the Regulations of the Court. This Regulation
does not state in which cases a status conference can be held, but only the procedure that has
to be followed in holding such a conference. Regulation 30 provides that: `A Chamber may hold
a status conference by way of hearings, including by way of audio- or video- link technology
or by way of written submissions. The Chamber may require use of standard forms at a status
conference as appropriate. Such standard forms shall be approved n accordance with regula-
tion 23, sub-regulation 2.'
16 The drafters chose not to use the word `suspect' in the ICC Statute and the ICC RPE. Article 55
generally refers to `persons during investigation'; x 2 lists specific rights for persons about
whom `there are grounds to believe' they have committed a `crime within the jurisdiction of
the Court'. See S. Zappala' , `Rights of Person During an Investigation', in A. Cassese, P. Gaeta
and J. Jones (eds), supra note 6, 1181^1203, at 1196.
17 The request was related to the carrying out of a forensic examination.
The First Decision of the ICC Pre-Trial Chamber 193
the unique investigative opportunity on the basis of the Prosecutor's request
and having held an ex parte consultation with the Prosecutor himself,18
adopted all of the necessary measures in order to make sure that the collection
of evidence prior to trial would be conducted in as impartial and adversarial a
manner as possible. It allowed among these measures the participation in the
operations of an ad hoc counsel, appointed by the Registrar. This counsel
(whom we would define `counsel of the defence') is called upon to `assist' not a
specific client, who has not been identified yet, but `the general interests of the
defence'.19
In trying to control the Prosecutor's work and appointing the `counsel of the
defence', i.e. utilizing the most protective measure among those listed in
Article 56,20
Pre-Trial Chamber I showed great concern about the `inequality
of arms' during the investigation phase and its willingness to take care of
the protection of defence rights, especially when the Prosecutor is working
only on a `situation', i.e. when a `suspect' is not yet formally identified such
that his or her counsel has not entered into the proceedings and cannot act
as a `watchdog'.
The decisions analysed above seem to have exposed another myth. Article
54(1)(a) ICCSt. states that `The Prosecutor shall: (a) In order to establish the
truth, extend the investigation to cover all facts and evidence relevant to an
assessment of whether there is criminal responsibility under this Statute,
and, in doing so, investigate incriminating and exonerating circumstances
equally'. This provision does not make the Prosecutor a super partes organ.
Furthermore, it is not sufficient to protect defence rights during investigations.
In fact, the object of the investigative opportunity was a forensic examination
of items considered not available at subsequent stages of the procedure.
Although the Chamber had ascertained the independence and impartiality
of the proposed body (Netherlands Forensic Institute) in charge of the exam-
ination itself, it nevertheless deemed the presence of the Defence Counsel
necessary. It would appear that it implicitly considered the provisions of
Article 54(1)(a) as insufficient to protect the rights of the `prospective suspects'.
Similarly, it saw the Prosecutor as an `organ of justice', not a super partes organ.
4. Concluding Remarks
The first judicial decision of the ICC should be greatly appreciated. Pre-Trial
Chamber I has used the general powers provided for in Article 57 in order to
speed up the investigations and to offer more protection to defence rights.
18 Decision to Hold Consultation Under Rule 114, Situation in the Democratic Republic of Congo
(ICC-01/04), Pre-Trial Chamber I, 21 April 2005, at 4.
19 Decision on the Prosecutor's Request for Measures Under Article 56, Situation in the Democratic
Republic of Congo (ICC-01/04), Pre-trial Chamber I, 26 April 2005.
20 The measures listed in Art. 56(2) ICCSt. are not exhaustive.
194 JICJ 4 (2006), 188^195
In addition, through the procedure of Article 56 (which could have been
stimulated by the status conference), the Pre-Trial Chamber enabled a
Defence Counsel to participate in the proceedings, thereby making the pre-
trial phase more fair. At the same time, as we mentioned above, the Pre-Trial
Chamber would appear to have used the status conference device at a very
early stage of the investigations and outside the specific occasion explicitly
mentioned in the ICC RPE, exposing itself to possible, but perhaps
short-sighted, criticism regarding prosecutorial independence in conducting
investigations.
Moreover, it would seem that the decision has slightly changed the shape of
ICC procedure, making it different from the one that we would otherwise have
found `on the books'.
Furthermore, the decision could open the door to other interpretative deci-
sions (and, consequently, to other problems) which could, in turn, further
change that original shape by themselves. For example, from a mere textual
reading of the Statute and the ICC RPE, one could conclude that the Pre-Trial
Chamber may not on its own initiative ask the Prosecutor to collect evidence
prior to trial in presence of the situation described in Article 56. There seem
to be two grounds for this contention. The Pre-Trial Chamber is not a juge
d'instruction. Additionally, from a technical point of view, it would appear to
be unable to evaluate the status of the investigation and the occurrence
of a unique opportunity, as it is a `judge without dossier' and, consequently,
without tools to ask for investigative operations. Now, however, after Pre-Trial
Chamber I's decision and its consequent knowledge of some details about the
investigations at a very early stage, this kind of initiative, in accordance with
the general provision of Article 57(3)(c) ICCSt., may not be excluded.
We have witnessed only the first steps of the judicial interpretation in the
ICC system: now, the scholars' duty is to pay attention to all of the next steps,
aware that although we are faced with a coherent procedural system, it is one
that is still under construction. As pointed out above, the 17 February 2005
decision may have shifted the balance reached in Rome that underlies the
interplay between the Prosecutor and the Pre-Trial Chamber. However, it may
also have given more overall equilibrium to the system, better balancing the
Prosecutor's and the suspect's (or the prospective suspect's) position during
the investigations.
The First Decision of the ICC Pre-Trial Chamber 195