International

international criminal law review 16 (2016) 158-176 Criminal Law

Review

brill.com/icla

Arrest Warrants at the International Criminal

Court: Reasonable Suspicion or Reasonable
Grounds to Believe?
Amrutanshu Dash
National Law University, Delhi, India
[email protected]

Dhruv Sharma
National Law University, Delhi, India
[email protected]

Abstract

Pre-trial detention is not advance punishment and the deprivation of liberty

should only occur if necessary in the interests of justice. Striving to achieve this
objective, Article 58 of the Rome Statute dictates that an arrest warrant shall be
issued if there are reasonable grounds to believe that the person has committed a
crime within the jurisdiction of the court. The Pre-Trial Chamber has over the
years relied on the reasonable suspicion threshold sourced from the European
Convention on Human Rights (echr) as an elucidation of the reasonable belief
standard. It is argued that the reliance on echr is misplaced in the context of the
evidentiary thresholds present in the Rome Statue. Textually, reasonable belief is a
higher standard than reasonable suspicion. Instead, it is submitted that the Court
should rely on the prima facie case jurisprudence from the icty to interpret the
threshold for Article 58.

Keywords

arrest warrants – international criminal law – International Criminal Court (icc) –

evidentiary standards – reasonable suspicion – reasonable grounds to believe – Article
58 Rome Statute – icc Statute

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Arrest Warrants at the International Criminal Court 159

1 Introduction

An arrest warrant is issued against a person if the Pre-Trial Chamber (ptc) has
reasonable grounds to believe that the person has committed a crime within the
jurisdiction of the court.1
The framework established by the Rome Statute (or the Statute) pro-
vides for three distinct stages2 at which the ptc and the Trial Chamber
(tc) evaluate the evidence presented by the prosecution. Evidence so pro-
duced must justify (i) issuance of an arrest warrant or summons to appear
under Article 58 of the Statute; (ii) the confirmation of charges under
Article 61; and finally (iii) the conviction of an accused under Article 66 of
the Statute.3

1 Art, 58(1) Rome Statute of the International Criminal Court (‘ICCSt’).

2 While the Court in 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-Corr.), Pre-Trial Chamber II, 31 March 2010; Situation in the Republic
of Côte d’Ivoire, Corrigendum to Decision Pursuant to Article 15 of the Rome Statute on the
Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, (icc-
02/11–14-Corr.), Pre-Trial Chamber IiI, 15 November 2011 held that there exist four stages of
evidence evaluation, however, the authors submit that the ‘reasonable basis to proceed
standard’ provided for under Article 53(1) of the Statute should be the same as the ‘reason-
able grounds to believe’ standard under Article 58, albeit with a different purpose. The stan-
dard offered by the ptc is practically indistinguishable from that guiding the issuance of
arrest warrant or summons to appear under Article 58. However, a distinction needs to be
maintained not because one standard is inherently lower than other, but because of the
different contexts in which they are applied. At the Article 58 stage, the Prosecutor needs to
produce evidence to ‘pin’ the individual to the crime unlike Article 53 which deals with the
establishment of a crime. The former is not required for a proceeding under Article 53. See
generally, Manuel J. Ventura, ‘The ‘Reasonable Basis to Proceed’ Threshold in the Kenya and
Côte d’Ivoire Proprio Motu Investigation Decisions: The International Criminal Court’s
Lowest Evidentiary Standard?’, 12(1) The Law and Practice of International Courts and
Tribunals (2013) 49–80. Nonetheless the existence of a fourth standard (or the lack of it)
does not in any way prejudice the submissions made in this paper.
3 Decision Pursuant to Article 61(7)(a) and (b) of the Rome statute on the Charges of the
Prosecutor against Jean-Pierre Bemba Gombo, Jean-Pierre Bemba Gombo (icc-01/05-01/08-
424), Pre-Trial Chamber II, 15 June 2009, para. 27, <http://www.icc-cpi.int/iccdocs/doc/
doc699541.pdf>, 3 September 2015; Separate and Partly dissenting opinion of Judge Anita
Usacka, Decision on the Prosecution’s Application for a warrant of arrest against Omar
Hassan Ahmad Al Bashir, Al Bashir (icc-02/05–01/09), Pre-Trial Chamber I, 4 March 2009,
<http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf>, accessed 3 September 2015, para. 7.

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160 Dash AND Sharma

In effect, the Statute provides for progressive evidentiary thresholds to be

met at every stage of the proceedings.4 At the stage of issuing an arrest warrant
or summons, the ptc need only be satisfied that there are reasonable grounds
to believe that the person has committed a crime.5 While confirming the
charges against the person, the ptc would require evidence establishing sub-
stantial grounds to believe that the person has committed the crime charged.6
Finally, in order to convict the accused, the tc must be convinced of the guilt
of the accused beyond reasonable doubt.7
The ptc has previously likened the standard of reasonable grounds to believe
with the reasonable suspicion threshold as specified in Article 5(1)(c) of the
European Convention on Human Rights (echr or the Convention).8 In the
decision concerning the issuance of an arrest warrant against Thomas Lubanga
Dyilo, the Court first adopted this threshold basing its reliance on the case-law
of the European Court of Human Rights (ECtHR), and the jurisprudence of the
Inter-American Court of Human Rights (IACtHR).9 It stated that,

as required by Article 21(3) of the Statute, the Chamber considers this

to be the only interpretation consistent with the “reasonable suspi-
cion” standard provided for in Article 5(1)(c) of the European
Convention on Human Rights and the interpretation of the Inter-
American Court of Human Rights in respect of the fundamental right
of any person to liberty under Article 7 of the American Convention
on Human Rights.

However, the Court failed to elaborate upon the reasons for such an adoption
which is evident from the above paragraph. Subsequently the ptc has gone on
to discuss this standard while issuing arrest warrants in a number of cases such

4 Separate and Partly dissenting opinion of Judge Anita Usacka, Decision on the Prosecution’s
Application for a warrant of arrest against Omar Hassan Ahmad Al Bashir, Al Bashir (icc-
02/05–01/09), Pre-Trial Chamber I, 4 March 2009, <http://www.icc-cpi.int/iccdocs/doc/
doc639096.pdf>, accessed 3 September 2015, para. 8.
5 Art. 58(1)(a) ICCSt.
6 Art. 61(7) ICCSt.
7 Art. 66(3) ICCSt.
8 Decision on the Prosecutor’s Application for a warrant of arrest, Thomas Lubanga Dyilo (icc-
01/04–01/06-8-Corr), Pre-Trial Chamber I, 10 February 2006, <http://www.icc-cpi.int/iccdocs/
doc/doc530350.pdf>, accessed 3 September 2015, para. 12.
9 Ibid.

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Arrest Warrants at the International Criminal Court 161

as Bosco Ntaganda,10 Laurent Koudou Gbagbo,11Al Bashir,12 Jean-Pierre Bemba

Gombo,13 and Ahmad Harun and Ali Kushayb14 wherein it has consistently jus-
tified this reliance based on Article 21(3) of the the Statute. Article 21(3) only
directs that the ‘application and interpretation of law pursuant to this article
must be consistent with internationally recognised human rights…”. It ‘provides
a standard against which all the law applied by the court should be tested’15
and the authors share the opinion that it should not form an independent
source for fostering an interpretation.
There is an opposing view that contends that a more progressive reading
of Article 21(3) understands it as a source of applicable law in and of itself.16
However, this would be opposed to a plain reading of the provision in the
Rome Statute which clearly lays down the applicable law in Article 21(1). The
authors’ view is also supported by the decision in Lubanga Dylio which reads,
‘prior to undertaking the analysis required by Article 21(3) of the Statute, the
Chamber must find a provision, rule or principle that, under Article 21(1)(a)
to (c) of the Statute, could be applicable to the issue at hand.’17 With regards

10 Decision on the Prosecutor’s Application under Article 58, Bosco Ntaganda (icc-01/04-
02/06), Pre-Trial Chamber II, 13 July 2012, <http://www.icc-cpi.int/iccdocs/doc/
doc1441449.pdf>, accessed 3 September 2015, para. 16.
11 Decision on the Prosecutor’s Application pursuant to Article 58 for a warrant of arrest
against Laurent Koudou Gbagbo, Laurent Gbagbo (icc-02/11-01/11), Pre-Trial Chamber IiI,
30 November 2011, <http://www.icc-cpi.int/iccdocs/doc/doc1291604.pdf>, accessed 3
September 2015, para. 27.
12 Decision on the Prosecution’s Application for a warrant of arrest against Omar Hassan
Ahmad Al Bashir, Al Bashir (icc-02/05-01/09), Pre-Trial Chamber I, 4 March 2009, <http://
www.icc-cpi.int/iccdocs/doc/doc639096.pdf>, accessed 3 September 2015, para. 32.
13 Decision on the Prosecutor’s Application for a warrant of arrest against Jean-Pierre
Bemba Gombo, Bemba Gombo (icc-01/05-01/08), 10 June 2008, <http://www.icc-cpi.int/
iccdocs/doc/doc535163.pdf>, accessed 3 September 2015, para. 24.
14 Decision on the Prosecution Application under Article 58(7) of the Statute, Ahmad Harun
and Ali Kushayb (icc-02/05-01/07), 27 April 2007, <http://www.icc-cpi.int/iccdocs/doc/
doc279807.pdf>, accessed 3 September 2015, para. 28.
15 Mahnoush H. Arsanjani, ‘The Rome Statute of the International Criminal Court’, 93 ajil
(1999) 29.
16 Daniel Sheppard, ‘The International Criminal Court and “Internationally Recognised
Human Rights”: Understanding Article 21(3) of the Rome Statute’, 10 Int. Crim. Law Rev.
(2010), p. 60; See generally Stephen Bailey, ‘Article 21(3) of the Rome Statute: A Plea for
Clarity’, 14 Int. Crim. Law Rev. (2014) 513–550.
17 Decision on the Practices of Witness Familiarisation and Witness Proofing, Prosecutor v.
Thomas Lubanga Dylio (icc-01/04-01/06), 8 November 2006, <http://www.icc-cpi.int/
iccdocs/doc/doc243711.PDF>, accessed 29 October 2015, para. 10.

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162 Dash AND Sharma

the standard of reasonable suspicion the Court has conveniently ignored the
reasons to indicate why or how the standard assists in construing reasonable
grounds in the first place.18 Consequently while it is accepted that the stan-
dard applied by the ECtHR and the IACtHR is consistent with internationally
recognised human rights, this does not ipso facto establish the precedence of
the threshold over any other standard (for instance the prima facie case stan-
dard of the International Criminal Tribunal for former Yugoslavia) that may
also be consistent with internationally recognised human rights.
Literature surrounding this stage,19 including commentaries,20 has often
failed to question if the evidentiary standard followed by the International
Criminal Court (icc) adheres to its true language under the Statute as inter-
preted in accordance with the general rules of interpretations found under
Articles 31 and 32 of Vienna Convention on Law of Treaties (vclt).21 The
Rome Statute is a criminal law instrument in addition to being a multilateral
treaty. The principle of dubio pro reo requires that in the interpretation of
criminal law instruments, any doubt should benefit the accused.22 The prin-
ciple has also found recognition in Article 22(2) of the Rome Statute. It has
been only recently argued by Scholars that the evidentiary threshold under
Article 58 has been unjustifiably lowered by equating it with reasonable sus-
picion.23 While others point out that the prima facie case from the
International Criminal Tribunal for former Yugoslavia (icty) will be helpful

18 William A. Schabas, The International Court: A Commentary on the Rome Statute (oup,
Oxford, 2010), p. 707.
19 Manuel J. Ventura, ‘The ‘Reasonable Basis to Proceed’ Threshold in Kenya and Cote
d’Ivoire Proprio Motu Investigation Decisions: The International Criminal Court’s Lowest
Evidentiary Standard?’, 12 Law & Prac Int’l Cts & Tribunals (2013) 49–80.
20 Christopher K. Hall, ‘Issuance by the Pre-Trial Cahmber of a warrant of arrest or a sum-
mons to appear’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International
Criminal Court (2nd edn, C.H.Beck, Munich, 2008), pp. 1138–1139.
21 Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial
Chamber’s I’s 31 March 2006 Decision Denying Leave to Appeal, Situation in the Democratic
Republic of Congo (icc-01/04–168), 13 July 2006, <http://www.legal-tools.org/uploads/tx
_ltpdb/CR2006_01806_Judgement_on_the_Prosecutor_s_Application_for_Extraordinary
_Review_of___Trial_Chamber_I_s_31_March_2006_Decision_Denying_Leave_to_Appeal
_05.PDF>, para. 33.
22 Dapo Akande, ‘Sources of International Criminal Law’, in Antonio Cassese (ed.), The
Oxford Companion to International Criminal Justice (oup, Oxford, 2010), pp. 44–45.
23 Michael Ramsden and Cecilia Chung, ‘Reasonable Grounds to Believe’, 13 J Int’l Crim Just
(2015) 555–578.

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Arrest Warrants at the International Criminal Court 163

in interpreting Article 58.24 In such a context, this article raises a difficult

question: ‘Have the arrest warrants issued by the icc based on a wrong evi-
dentiary standard?’
This article seeks to argue that the reliance on the threshold set under the
echr is misplaced in context of the evidentiary thresholds specified in the Rome
Statute for two reasons: First, the threshold of reasonable grounds to believe is
higher than reasonable suspicion standard.25 Second, the nature of proceedings
under Article 58 can be differentiated from Article 5(1)(c) of the echr.
The article consequently encourages an alternate reading of Article 58(1)
arguing that the standard should be interpreted in line with the prima facie
case threshold of the icty. Therefore, at the stage of issuance of an arrest war-
rant itself, the prosecutor should present proof which, if uncontested by the
defence, would justify a conviction.26 The reliance on the icty standard is also
in consonance with internationally recognised human rights and thus in
accordance with provisions of Article 21(3).

2 The echr Standard Is Not Applicable to the icc

It is extremely curious to observe that the evidentiary threshold under Article 58

has never been elucidated by the Appeals Chamber (ac). Further, various ptc
decisions regarding summons to appear or arrest warrants have failed to refer
to the reasons for using reasonable suspicion as an elucidation of the reason-
able belief standard.27 Be that as it may, the standard of reasonable suspicion
under the echr is not commensurate with the reasonable belief threshold
under the icc.

2.1 Reasonable Belief Threshold Is Higher than Reasonable Suspicion

2.1.1 ‘Belief’ Cannot Be Equated to ‘Suspicion’
At the very outset the standard of proof required under Article 5(1)(c) of the
echr is textually different from the standard required under Article 58(1) of

24 Andrew J Burrow, ‘The Standard of Proof in Pre-trial Proceedings’, in Karim A A Khan,

Caroline Buisman and Christopher Gosnell (eds.), Principles of Evidence in International
Criminal Justice (oup, Oxford, 2010), pp. 674–675.
25 The terms threshold and standard are used synonymously.
26 Decision on the Review of Indictment, Kupreškić (it-95-16-I), Judge Gabrielle Kirk
McDonald, 10 November 1995, p. 3; Decision on Review of Indictment, Milošević (it-01-
51-I), Judge Richard May, 22 November 2001, <http://www.icty.org/x/cases/slobodan
_milosevic/tdec/en/11122RIE16898.htm>, accessed 3 September 2015, para. 14.
27 Schabas, supra note 18, p. 707.

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164 Dash AND Sharma

the Statute.28 The literal meaning29 of the word belief indicates the existence of
something as likely or relatively certain.30 However, suspicion only indicates an
apprehension or imagination of the existence of something wrong based on
inconclusive or slight evidence.31 In fact this difference has been acknowl-
edged by the ac where it has termed belief in the context of Article 58 to mean
the acceptance of a fact.32 On the contrary the ECtHR has maintained that the
standard is that of plausible suspicion33 and not acceptance of fact. Thus,
while belief denotes mental acceptance of a statement, fact, etc., as true or
existing, suspicion only denotes a faint belief that something may be the
case.34 A literal interpretation of the Convention35 therefore indicates that the
suspicion threshold is not commensurate with the belief threshold. In his sep-
arate opinion in the Lubanga case Judge Pikis also explicitly acknowledged the
difference in the two thresholds stating that

the founding of a valid cause for the detention of the person does not rest
on reasonable suspicion, but on “grounds” founded on evidential mate-
rial giving rise to a reasonable belief that a crime has been committed by
the appellant (article 58 (2) of the Statute).36

It is surprising to note that reliance has never been placed on this opinion in
subsequent cases.

28 Art. 31(1), Vienna Convention on the Law of Treaties 1969 (vclt).

29 Article 31(1), vclt.
30 Blacks Law Dictionary (9th ed., 2009).
31 Ibid.
32 Judgment in the appeal by Mathieu Ngudjolo Chui of 27 March 2008 against the Decision
of Pre-Trial Chamber I on the application of the Appellant for Interim Release, Germain
Katanga and Mathieu Ngudjolo Chui (icc -01/04-01/07-OA 4), Appeals Chamber, 9 June
2008, <http://www.icc-cpi.int/iccdocs/doc/doc506245.pdf>, para. 18.
33 Fox, Campbell and Hartley v. United Kingdom, ECtHR (1990) Series A, No. 182, <http://
hudoc.echr.coe.int/eng?i=001-57721>, accessed 3 September 2015, p. 32; Labita v Italy,
ECtHR (2000) App No. 26772/95, <http://hudoc.echr.coe.int/eng?i=001-58559>, accessed
3 September 2015, p. 156; Murray v. United Kingdom, ECtHR (1994) Series A, No. 300, <http://
hudoc.echr.coe.int/eng?i=001-57895>, accessed 3 September 2015, p. 63.
34 Separate Opinion of Judge Georghios M. Pikis, Judgment in the appeal of Mr. Thomas
Lubanga Dylio against the decision of Pre-Trial Chamber I, Thomas Lubanga Dyilo (icc-
01/04-01/06 (oa 7), Appeals Chamber, 13 February 2007, < http://www.icc-cpi.int/iccdocs/
doc/doc248155.pdf>, para. 5.
35 Art. 31(1), vclt.
36 Pikis (icc-01/04-01/06 (oa 7), supra note 34.

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Arrest Warrants at the International Criminal Court 165

2.1.2 Adjudging the Distinction between the Probability of ‘Has’ as

Compared to the Possibility of ‘May’
The founding of a valid issuance of arrest warrant depends on evidentiary
material giving rise to a reasonable belief that a crime has been committed by
the person.37 However the explanation of the reasonable suspicion threshold
by the ECtHR, cited approvingly by the icc,38 indicates that the threshold
“forms an essential part of the safeguard against arbitrary arrest” and “presup-
poses the existence of facts or information which would satisfy an objective
observer that the person concerned may have committed the offence.”39 There
is a clear distinction in the facts that need to be proved under these two thresh-
olds. The Rome Statute in Article 58 mandates the prosecution to prove that
there are reasonable grounds to believe that the person has committed an
offence. A contrario, the provision in echr will be satisfied if it is merely
proved that the person was arrested based on an objective observer’s supposi-
tion that he may have committed the offence. Semantically the word has would
indicate a higher degree of certainty, that the word may which is illustrative of
doubtfulness. Thus the use of the word has as opposed to may, would prove
that the reliance on echr’s jurisprudence is not appropriate for the issuance
of an arrest warrant at the icc.
In fact, such an understanding is further supported by the negation of a
lower standard of arrest that was present in an earlier version of the Statute.
The International Law Commission’s (ilc) Draft Statute for an International
Criminal Court envisaged that arrest warrant may be issued if there is probable
cause to believe that the suspect may have committed a crime within the
Jurisdiction of the Court.40 But the same was rejected from Article 58 of the
Rome Statute which specifies that there should be reasonable grounds to
believe that the person has committed a crime within the jurisdiction of the
Court. In light of the explicit removal of such a standard, the intention of the
framers41 of the statute should be respected and the appropriate meaning
attributed to the threshold.

37 Article 58(1)(a) ICCSt. (emphasis added); Pikis (icc-01/04-01/06 (oa 7), supra note 34.
38 (icc-01/05-01/08), supra Note 13.
39 Article 5(1) European Convention on Human Rights (emphasis added); Fox, Campbell and
Hartley, supra note 33; Labita, supra note 33, para. 155; O’Hara v. United Kingdom, ECtHR
(2001) <http://hudoc.echr.coe.int/eng?i=001-59721>, accessed 3 September 2015, para. 34.
40 Art. 28(1)(a), Draft Statute for an International Criminal Court, Report of the International
Law Commission on the work of its forty-sixth session, 2 May – 22 July, 1994, u.n. Doc.
A/49/10, 1994 vol. II(2), p. 49.
41 Art. 32 vclt.

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166 Dash AND Sharma

2.2 Function of the Court and Purpose of Arrest under the echr Is
Different from the icc
In addition to the employment of literal interpretation to distinguish the two
standards, it is important to differentiate the purpose of the Rome Statute
from the echr.42 The European Convention on Human Rights was enacted
by members of the Council of Europe to recognize and observe the rights
contained in the Universal Declaration of Human Rights.43 The echr was
positioned as an ensemble of various human rights guaranteed by Member
states to their citizens. The primary purpose of the ECtHR is to adjudicate on
violations of the echr by the member states.44 On the contrary, the Rome
Statute guides the icc which is involved in the administration of a penal stat-
ute and punishing those responsible for its violations. Unlike the icc, the
ECtHR does not preside over the prosecution of individuals. Article 5(1)(c) of
the echr, serves as the source for the reasonable suspicion threshold and is
meant as a bare minimum protection against arbitrary arrests (which deprive
the right to liberty) by member states45 and not as a penal statute to grant
arrest warrant based on the requisite threshold. For instance, in the case of
Fox, Campbell and Hartley the echr found that the arrest of persons sus-
pected to have committed acts of terrorism by the u.k. authorities was in
contravention of Article 5(1) of the echr as the government failed to produce
material on which the suspicion against the applicants was based. The ECtHR
thus applies the provisions of the echr to analyse whether a particular arrest
warrant issued by a member state amounted to arbitrary arrest. In contrast
the icc itself issues an arrest warrant to secure the presence of the accused
based on evidence adduced before it. Therefore the functions of the two
Courts are highly dissimilar thereby making any analogous application of
standards erroneous.
Further, the echr presupposes that the criminal investigation by the
contracting parties is not complete and the arrest of a person based on rea-
sonable suspicion will further the investigation by way of confirming or dis-
pelling the concrete suspicion grounding the arrest.46 The ECtHR has
previously clearly stated the purpose of an arrest as provided for under
echr as;

42 Article 31(1), vclt.

43 Preamble para. 3, European Convention on Human Rights (echr).
44 Article 19 echr.
45 Art. 5(1) echr.
46 Murray, supra note 33, para. 55; O’Hara, supra note 39.

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Arrest Warrants at the International Criminal Court 167

The object of questioning during detention under sub-paragraph (c) of

Article 5 para. 1 (art. 5-1-c) is to further the criminal investigation by way
of confirming or dispelling the concrete suspicion grounding the arrest.47

Although there is a difference in opinion over interpreting the meaning of rea-

sonable suspicion however it is generally accepted that the echr permits the
arrest of a person for futher investigations based on concrete suspicions.48
However, the arrest of a person or issuance of a summon to appear under the
Rome Statute does not have share similar aims. The foremost objective of
arrest under the Rome Statute is to ensure the person’s appearance before the
Court which is a pre-requisite for trial49 and is necessary for the due conduct
of judicial proceeding.50 It does not strive at further investigation as one of its
objectives, made explicit from Article 58(1)(b) of the Rome Statute. The provi-
sion lays down three situations in which the arrest of a person is necessary: to
ensure the person’s appearance at trial, to ensure that the person does not
obstruct the investigative process and to stop the person from commission of
a crime. In cases where the ‘person can and will appear voluntarily before the
Court without the necessity of presenting a request for arrest and surrender’,51
the Prosecution requests the issuance of the summons. The only distinction
between the issuance of arrest warrant and the summons to appear under
Article 58 is the question of necessity of arrest found under Article 58(1)(b) of
the Statute while the standard of proof remains the same.52 If the person can
ensure his presence at the trial, the Court would not issue an arrest warrant
and instead issue a summons to appear.53 After having established that the icc
does not envisage the requirement of a person either through arrest or sum-
mons to appear for investigation, it is submitted that the similar evidentiary
threshold for arrest and summons make logical sense. The hearing relating to
the confirmation of charges follows the Article 58 stage and Article 61(1) of the
Statute directs that it shall be held in the presence of the person charged. In
order to fulfil the mandate of this provision and also Article 63 which requires

47 Murray, supra note 33, para. 55.

48 Jim Murdoch, ‘Safeguarding the Liberty of the Person: Recent Strasbourg Jurisprudence’,
42 iclq 494 (1993), p. 503.
49 Art. 63(1) ICCSt.
50 Art. 58(1)(b)(i) ICCSt.; Pikis (icc-01/04-01/06 (oa 7), supra note 34, para. 2.
51 Decision on the Prosecution application under Article 58(7) of the Statute, Ahmad Harun
and Ali Kushayb (icc-02/05-01/07), Pre-Trial Chamber. 27 April 2007, <http://www.icc-cpi
.int/iccdocs/doc/doc279807.PDF> para 117.
52 Schabas, supra note 18, p. 712.
53 Art. 58(7), ICCSt.

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168 Dash AND Sharma

the presence of the accused during the trial, Article 58 is solely directed towards
ensuring such presence. While the confirmation hearing54 and the trial55 may,
in certain specified cases, be conducted in the absence of the accused, such an
occurrence is exceptional.56 Apart from ensuring attendance at trial, the arrest
of a person is also sought on the grounds of ensuring that he does not obstruct
the investigation or continue with the commission of the crime.57 Judge Pikis58
has clarified that the arrest of a person is not intended as an aid to the investi-
gation of a case but as a means of securing his/her appearance before the court
in proceedings consequential thereto. It is reasonable to state that a threshold
which has further investigation as one of its premises is bound to be satisfied
by a lower evidentiary threshold vis-à-vis a standard which does not envisage
further investigation as one its purposes, but rather, only to secure the pres-
ence of the person at the trial the beginning of which is imminent.
Furthermore the ECtHR has through cases such as Fox, Campbell and
Hartley,59 O’Hara v. United Kingdom60 and Labita v. Italy,61 explicitly stated
that the purpose of an arrest warrant under Article 5(1)(c) is not to bring a
charge against the person but only to further a criminal investigation. For
instance in the case of Murray v. United Kingdom the Court held that an arrest
must be seen as independent from the bringing of a charge and that the
absence of a subsequent charge does not negate the finding of reasonable
suspicion.62 In contrast the application for the issuance of an arrest warrant/
summons to appear under the Rome Statute is for the purposes of bringing a
charge against a person,63 i.e. no warrant can be issued if the otp is unable to
justify the charges it seeks to prove. The same is clear from the second arrest
warrant issued against Al-Bashir wherein the Court affirmed the findings made
by the Office of the Prosecutor (otp) and added the charge of Genocide against
Al-Bashir.64 In fact the otp has previously conceded that a request for the

54 Art. 61(2), ICCSt.

55 Art. 63(2), ICCSt; Rules 134 ter, 134 quater, Rules of Procedure and Evidence (icc).
56 Pikis (icc-01/04-01/06 (oa 7), supra note 34, para. 2.
57 Art. 58(1)(b)(ii), (iii) ICCSt.
58 Pikis (icc-01/04-01/06 (oa 7), supra note 34, para. 3.
59 Fox, Campbell and Hartley, supra note 33, para. 19.
60 O’Hara, supra note 39, para. 36.
61 Labita, supra note 33, para. 155.
62 Murray, supra note 33, para. 67.
63 Schabas, supra note 18.
64 Second Decision on the Prosecutor’s Application for a Warrant of Arrest, Al Bashir (icc-
02/05-01/09), Pre-Trial Chamber, 12 July 2010, <http://www.icc-cpi.int/iccdocs/doc/doc907142
.pdf>, accessed 3 September 2015.

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Arrest Warrants at the International Criminal Court 169

issuance of an arrest warrant is made only when the office is trial-ready going
on to show that such request is not to further investigation but to bring a charge
against the person.65 As the reasonable suspicion threshold does not contem-
plate the bringing of a charge against a person the same cannot be adequate
for the issuance of an arrest warrant at the icc. Therefore, in view of the clear
distinction between the purposes that are to be achieved by the respective
thresholds, it is stated that the reliance on the European Convention standard
is misplaced.

3 The Prima Facie Case of icty Is the Appropriate Standard

It has been argued above that the reasonable suspicion standard fails to guide
the evidentiary requirements under Article 58 of the Statute due to different
terminology as well as purpose. However it is submitted that the prima facie
case standard adopted by the icty does provide an evidentiary threshold
equivalent to the reasonable grounds to believe standard of the icc.
Unlike the icc which has a bifurcated evidentiary threshold (Articles 58/61)
for issuance of arrest warrants and confirmation of charges, the icty has a
single threshold, the indictment proceedings. Under Article 19(1) of the icty
Statute, the Trial Chamber shall confirm the indictment if it is satisfied that a
prima facie case has been established by the prosecutor. Thereupon, the Judge
may issue an arrest warrant for the smooth conduct of the trial relying on
Article 19(2) of the icty Statue and Rule 54 of icty Rules of Procedure and
Evidence based on the same evidentiary threshold.
The prima facie standard has been elucidated in Rule 47(B) of the icty
Rules of Procedure and Evidence which departs from the wording of the icty
Statute. The Rule states that:

the prosecutor, if satisfied in the course of an investigation that there is

sufficient evidence to provide reasonable grounds for believing that a
suspect has committed a crime within the Jurisdiction of the Tribunal,
shall prepare and forward to the Registrar an indictment for confirmation
by a Judge, together with supporting material,

65 Prosecutorial Strategy 2009–2012 (icc Office of the Prosecutor), <http://www.icc-cpi.int/

en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/
reports%20and%20statements/statement/Pages/prosecutorial%20strategy%20
2009%20_%202012.aspx>, accessed 23 April 2015, p. 6.

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170 Dash AND Sharma

thereby equating prima facie case with reasonable grounds for believing. While
it has been argued by some that Rule 47(B) is ultra vires under the icty
statute,66 the controversy was laid to rest by Judge Rustam Sidhwa in the
Review of Indictment in Prosecutor v. Ivica Rajic.67 He concluded that the
phrase reasonable grounds for believing neither raises nor lowers the standard
of prima facie case set forth in the Statute and thus it is not ultra vires of the
Statute.68
In light of the almost identical wording of Rule 47(B) of the icty and Article
58 of the icc, and considering the Court’s willingness to rely on the jurispru-
dence of the Ad-Hoc Tribunals69 post a comprehensive analysis,70 it is argued
that the prima facie case jurisprudence of the icty is applicable to arrest war-
rant stage of the icc.71 The icty has previously discussed the scope and the
meaning of the prima facie case threshold in a string of cases wherein it has
held – while equating the standard with reasonable grounds to believe – that
the evidence necessary for the satisfaction of the standard must point to such
facts and circumstances as would justify a reasonable or ordinarily prudent
man to believe that the suspect has committed a crime.72 In confirming the
indictment against Milan Kovačević, the tc while applying the prima facie
standard went ahead to hold that the indictment proceedings are not a trial on
merits and do not require precise establishment of intent.73

66 D. Hunt, ‘The Meaning of a “Prima Facie Case” for the purposes of Confirmation’, in R. May
et al. (eds.), Essays on icty Procedure and Evidence in Honour of Gabrielle Kirk McDonald
(The Hague, Kluwer International, 2001).
67 Review of Indictment, Ivica Rajic (it-95-12-I), Judge Rustam Sidhwa, 29 Aug 1995.
68 Ibid.
69 Decision confirming the charges, Prosecutor v. Jean-Pierre Bemba Gombo, (icc 01/05-
/1/08), Pre-Trial Chamber II, 15 June, 2009, <http://www.icc-cpi.int/iccdocs/doc/doc699541
.pdf>, paras. 409–410.
70 Decision regarding the practices used to prepare and familiarize witnesses for giving tes-
timony at Trial, Thomas Lubanga Dyilo (icc-01/04-01/06), Trial Chamber I, 30 Nov 2007,
<http://www.icc-cpi.int/iccdocs/doc/doc371733.pdf>, accessed 3 September 2015, para.
44.
71 Andrew J. Burrow, ‘The Standard of proof in pre-trial proceedings’, in Karim A.A. Khan,
Caroline Buisman and Christopher Gosnell (eds.), Principles of Evidence in International
Criminal Justice (oup, Oxford, 2010), p. 674.
72 Ivica Rajic (it-95-12-I), supra note 67; Gabrielle Kirk MacDonald and Olivia Q. Swaak-
Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law –
Commentary (Brill, Leiden, 2000), p. 491.
73 Decision on Defence Motion For Provisional Release, Milan Kovacevic (it-97-24-pt), Trial
Chamber, 5 March 1998, <http://www.icty.org/x/cases/kovacevic/tdec/en/80120PR2
.htm>, accessed 3 September 2015, para. 20.

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Arrest Warrants at the International Criminal Court 171

This elaboration of the standard consequently resulted in the formation of

the below mentioned test for the satisfaction of the reasonable grounds to
believe (prima facie) threshold. In order to satisfy the prima facie case threshold
the prosecutor must establish a ‘credible case which would (if not contradicted
by the defence) be a sufficient basis to convict the accused on the charge.’74
This criterion was first laid down by the International Law Commission in its
Draft Statute for the International Criminal Court75 which was later relied
upon by Judge Kirk McDonald in the review of indictment of Kupreskic.76
Consequently the criterion has been applied by the icty in a catena of
cases77 which have maintained that in order to find reasonable grounds to
believe the prosecution must present evidence which taken on its own terms,
is capable of founding a conviction.78 Even the discussion of prima facie case
under Rule 50(A)(ii) of the icty Rules of Procedure and Evidence dealing with
the amendment of an indictment also lends the same view in so far as it states
that the amendment of indictment must adhere to the prima facie case stan-
dard.79 In accordance with the disposition by the icty, it is argued that the ptc
must demand evidence which, if not contradicted by the defence, can convict
an accused for the issuance of an arrest warrant. The acceptance of such a
standard is also in tune with internationally recognized human rights, pro-
vided for under iccpr,80 the echr81 and the American Convention on Human
Rights (‘achr’).82 The higher standard of proof under prima facie case stan-
dard gives great regard to the right to liberty by requiring an intense scrutiny
before the curtailment of the liberty of the accused. Pre-trial detention is not
advance punishment and the deprivation on liberty should only occur if necessary
for justice.83 This would assume an even higher significance in a transnational

74 Kupreškić (it-95-16-I), supra note 26.

75 Report of the International Law Commission on the work of its 46th Sess., u.n. gaor,
49th Sess., p. 95, u.n. Doc. A/49/10(1994).
76 Kupreškić (it-95-16-I), supra note 26.
77 Milošević (it-01-51-I), supra note 26; Decision on Prosecution Motion to Reconsider the
Trial Chamber’s Decision on the Motion to amend the First Amended Indictment,
Karadžić (it-95-5/18-pt), Trial Chamber, 26 February 2009, <http://www.icty.org/x/cases/
karadzic/tdec/en/090226.pdf>, accessed 3 September 2015, para. 12.
78 Burrow, supra note 71.
79 Karadžić (it-95-5/18-pt), supra note 77.
80 Art. 9(1), International Covenant on Civil and Political Rights (iccpr).
81 Art. 5, echr.
82 Art. 7, American Convention on Human Rights (achr).
83 Karim A.A. Khan, ‘Initial proceedings before the Court’, in Triffterer (ed.), supra note 20,
p. 1164.

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172 Dash AND Sharma

treaty-based court where the legitimacy of the court is based on the consent of
State parties. Finally in lieu of its conformity with internationally recognised
human rights the standard also fulfils the requirement of Article 21(3) thereby
negating any reason for reliance on the reasonable suspicion standard of the
echr or on the jurisprudence of the IACtHR.

3.1 A Deconstruction of the Arguments against the Adoption of the

Prima Facie Case
Three arguments may be made against the adoption of the icty position at the
arrest warrant stage: first, the prima facie case threshold is more suited to the con-
firmation hearing stage considering that the threshold is used by the icty at the
confirmation of the indictment. Second, the prima facie case standard was not
incorporated by the Rome Diplomatic Conference even though the ilc Draft
Statute84 and the Zutphen Draft85 clearly specified it. Third, the use of the word
person in Article 58, as opposed to the use of the word suspect in Rule 47(B) of the
icty suggests that a standard lower than prima facie case is therefore applicable.86
Article 19(1) of the icty Statute is in relation to the confirmation of the
indictment against the accused; this stage is not reached before the icc until
the hearing on confirmation of charge under Article 61 of the Rome Statute. In
view of the similarity in the stages of proceedings, the proponents of the first
argument believe that the prima facie case is more appropriate for the confir-
mation hearing stage. However, there are three objections to such a stand:
First, the textual interpretation of Article 61(7) does not support such a
conclusion. Prima facie case has been clarified by Rule 47(B) of icty Rules of
Procedure to be understood as a reasonable belief standard. Article 61(7)
envisages a threshold of substantial grounds to believe which is considered as
a higher threshold than reasonable ground to believe.87 While reasonable

84 Art. 27(2)(a), Draft Statute for an International Criminal Court, Report of the International
Law Commission on the work of its forty-sixth session, 2 May – 22 July, 1994, u.n. Doc.
A/49/10, 1994 vol. II(2), p. 47.
85 Art. 51[27], Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The
Netherlands, u.n. Doc. a/ac.249/1998/l.13, 4 Feb 1998, p. 95.
86 Oliver Fourney, ‘Powers of the Pre-Trial Chambers’, in Antonio Cassesse, Paola Gaeta and
John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court (oup,
Oxford, 2002), pp. 1219–1220.
87 (icc-01/05-01/08-424), supra note 3, p. 28; Manuel J. Ventura, ‘The ‘Reasonable Basis to
Proceed’ Threshold in the Kenya and Côte d’Ivoire Proprio Motu Investigation Decisions:
The International Criminal Court’s Lowest Evidentiary Standard?’, 12(1) The Law and
Practice of International Courts and Tribunals (2013) 49–80; Christoph Safferling,
International Criminal Procedure (oup, Oxford, 2012), p. 340.

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Arrest Warrants at the International Criminal Court 173

ground to believe standard requires that such evidence be produced as to

justify detention by proving a credible case securing conviction in the absence
of a defence, substantial grounds to believe requires evidence sufficient to
proceed with the prosecution of the person after the evaluation of counter
evidentiary materials produced by the defence and any defences raised by the
accused.88 Thus the evidentiary standard at the confirmation stage differenti-
ates the case that justify a prosecution from those that do not.89 Considering
the marked difference in language, the threshold cannot be applied to the
Article 61(7) standard.
Second, the formulation of the prima facie case test (credible case which if
not contested by the defence will result in conviction) by the icty is inappli-
cable to the format of the proceedings at the confirmation stage of the icc.90
The formulation makes sense in the icty structure because the defence plays
no role at this stage. In contrast to the icty, the icc confirmation hearing is
generally held in the presence of the defence per Article 61(1) of the Rome
Statute. Further, the defence is apprised of the documents containing the
charge and the evidence to be relied by the prosecutor at the hearing in accor-
dance with Article 61(3). At the hearing, the person may (a) object to the
charges; (b) challenge the evidence presented by the prosecutor; and (c) pres-
ent evidence.91 These provisions are hardly consistent with a test that takes the
lack of contestation as a premise for its application.92
Third, the confirmation of indictment/arrest warrant stage of the icty is in
essence more in tune with the Article 58 stage of the icc because this is the
stage at which the liberty of the person accused is placed in issue.93 The argu-
ment that the prima facie case standard of the Tribunals should be applicable
at the confirmation stage of the icc in light of a similarity between the two
proceedings fails to take into account the fact that the stage for the issuance of
an arrest warrant and confirmation of charges at the Ad-Hoc Tribunals was
based on the same threshold (the prima facie standard).94
Therefore, the same reason can also be used to state that prima facie case
should be applicable to Article 58 as the icty issues the warrants based on it.

88 Michela Miraglia, ‘Admissibility of Evidence, Standard of Proof, and Nature of the Decision
in the icc Confirmation of Charges in Lubanga’, 6 J Int’l Crim Just (2008) 489, p. 498.
89 (icc-01/05-01/08-424), supra note 3, p. 28.
90 Burrow, supra note 71, p. 675.
91 Art. 61(6) ICCSt.
92 Burrow, supra note 71, p. 675.
93 Ibid., p. 674.
94 Art. 19(2), Statute of the International Criminal Tribunal for the Former Yugoslavia
(ICTYSt); Art. 18(2), Statute of the International Criminal Tribunal for Rwanda (ICTRSt).

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174 Dash AND Sharma

Earlier, ad hoc tribunals like the icty and the International Criminal Tribunal
for Rwanda (ictr) had only two distinct stages of evidentiary thresholds:
prima face case (reasonable grounds to believe) in relation to the confirmation
of indictment/issuance of arrest warrant95 and proof beyond reasonable doubt
for the determination of guilt.96 The Rome Statute differs significantly from
other ad hoc tribunals, including ilc’s Draft Statute, and creates a sui generis
evidentiary threshold (substantial ground to believe) at the confirmation hear-
ing which is placed between reasonable belief and beyond reasonable doubt.
Accepting the contention that the prima facie case threshold is applicable to
the confirmation charges hearing would essentially signify that the Rome
Statute has created a new stage of evidentiary threshold at the arrest warrant
stage (reasonable grounds to believe) which is lower than the prima facie case
which does not hold true in practise. In fact, such a conclusion would re-write
years of jurisprudence that equated prima facie standard to a reasonable
grounds to believe threshold at the icty and ictr.
In relation to the second argument, although it is accepted that the Rome
Statute does not specifically include the term prima facie case, the inclusion of
the standard reasonable grounds to believe would assuage any doubts regard-
ing its exclusion. The icty as well as the ictr97 considered the latter standard
as the elucidation of the former and such knowledge was existent even at the
time of drafting of the Rome Statute. Thus, the inclusion of both the standards
simultaneously for the purposes of satisfying two differing and hierarchical
stages in the Zutphen Draft may be argued as having an implication that the
two thresholds’ are not equal. In the said Draft, the prima facie case threshold
was used for the confirmation of the indictment98 while the reasonable
grounds to believe threshold was used for the purposes of the pre-indictment
arrest warrant.99 Despite the presence of this option, the Rome Diplomatic
Conference100 preferred the further option which forms the current frame-
work of the icc. The preference of the latter over the Zutphen draft therefore
proves that the two thresholds’ are indeed equal.

95 Art. 19, ICTYSt.; Art. 18, ICTRSt.

96 Rule 87(A), Rules of Procedure and Evidence (icty); Rule 87(A), Rules of Procedure and
Evidence (ictr).
97 Art. 18(1) ICTRSt; Rule 47(A) Rules of Procedure and Evidence (ictr).
98 u.n. Doc. a/ac.249/1998/l.13, supra note 85.
99 Ibid., Article 52[28], p. 99.
100 Report of the Preparatory Committee on the Establishment of an International Criminal
Court, u.n. Doc. a/conf.183/2, 14 April 1998, pp. 50–52.

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Arrest Warrants at the International Criminal Court 175

Finally, the argument about the use of the word person in Article 58 as
opposed to suspect is unpersuasive.101 The Rome Statute along with the Rules
of Procedures and Evidence and the Regulations of the Court do not use the
term suspect in its provisions. The defendant is referred as a person in the
Statute and the accompanying rules and regulations till the confirmation of
charges after which he/she becomes the accused, in case the charges are con-
firmed. Hence, it would be futile to base an argument on the above differentia-
tion when the Rome Statute itself does not envisage such a distinction.
Moreoever, following a higher evidentiary threshold in case of a confusion
adheres to the priciple of dubio pro reo (favour the accused) explicitly recog-
nised in Article 22(2) of the Rome Statute.

4 Conclusion

The icc has provided some interesting judgments on the arrest warrants stage,
chief among which is the Al Bashir102 ac judgment. The judgment overturned
the ptc Majority and clarified the position of law regarding intent to commit
genocide at the arrest warrants stage.
Even so it is rather ironic to note that the defence has never taken the issue
of standard of proof required at the arrest warrants stage before the Court.
While it is accepted that the defence does not have any role to play in the ini-
tial issuance of the warrant, the fulfilment of the reasonable belief standard
can be questioned subsequently during the interim release proceedings under
Article 60(2). The article clearly lays an outlet for the defence to question if
the requirements of Article 58(1) are being met and the ac has previously held
that a ruling under Article 60(2) calls for a de novo assessment of the said
requirements.103 Therefore, at the risk of sounding impertinent and while
being fully aware of one’s position, the authors would venture to recommend
to the defence that their future arguments before this court could well begin
with an examination of this issue.

101 Burrow, supra note 71.

102 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’, Al Bashir
(icc-02/05-01/09-oa), Appeals Chamber, 3 February 2010, <http://www.icc-cpi.int/iccdocs/
doc/doc817795.pdf>, accessed 3 September 2015.
103 Judgment on the appeal of Mr. Laurent Koudou Gbagbo against the decision of Pre Trial
Chamber i of 13 July 2012, Laurent Koudou Gbagbo (icc-02/11-01/11 oa), Appeals Chamber,
26 October 2012, <http://www.icc-cpi.int/iccdocs/doc/doc1498173.pdf>, accessed 3 September
2015, para. 23.

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176 Dash AND Sharma

The use of words reasonable belief as opposed to reasonable suspicion indi-

cates that the latter threshold cannot be used as an elucidation of the former.
The purpose of arrest under the Rome Statute and the echr is different and
the reliance on the reasonable suspicion threshold is consequently misplaced.
Instead, the icc should follow the prima facie case threshold of the icty which
would mean that the icc shall issue an arrest warrant when it is satisfied that
the case is credible and which would, if not contested by the defence, produce
a conviction.
The icc is the result of the will of its parts, i.e. the Member States compris-
ing it. These states deliberated for years on the text of the Rome Statute and as
a result of this deliberation the phrase reasonable belief was incorporated in
the text of the Statute as opposed to the term reasonable suspicion. The
adopted terminology envisaged the rights of the accused to be weighed on a
certain pedestal. However the subsequent juxtaposition of the phrases reason-
able suspicion and reasonable belief and the consequent arrests furthered by
the Court based on a lower threshold betrays this intent of the member states
of arriving at a particular terminology. The icc today faces multifaceted chal-
lenges, including one of cooperation. An interpretation that can lead to head
of states being charged for international crimes on the basis of suspicion alone
may lead to an unenforceable and consequently weak international judicial
system. Thus downplaying the will of member states discourages existing
members from actively promoting the activities of the Court and further dis-
suades non-member states from joining such a system.
Finally, the arguments against the reliance on the icty standard can be
rebutted and should not be seen as a roadblock for the adoption of the stan-
dard. The icc has earlier specified that the body of law laid down by the ad hoc
tribunals is not automatically applicable but can applied by the icc after a
detailed analysis.104 Over the course of our arguments, it has been our sincere
effort to convince the readers of the reasons for following the lead given by the
icty in relation to the evidentiary threshold for the issuance of an arrest war-
rant. The above analysis was meant as an impartial effort to develop possible
discourses on the jurisprudence of arrest warrants followed by the icc and
indicate, with the natural limitations of an external observer, a reasonable
path to tread in the future.

104 Decision regarding the practices used to prepare and familiarize witnesses for giving tes-
timony at Trial, Thomas Lubanga Dyilo (icc-01/04-01/06), Trial Chamber i, 30 November
2007, <http://www.icc-cpi.int/iccdocs/doc/doc371733.pdf>, accessed 3 September 2015,
para. 44.

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