Index
acquittal see See under Bemba case; Gbagbo and Blé Goudé case
based on circumstantial evidence
based on evaluation of evidence weight
continental law
cost of acquittals
doubt
high-profile acquittals
insufficient evidence
Nuremburg
presumption of innocence
proof of guilt
prosecutor’s duty
Woolmington
adversarial legal system See under Bemba case; Canadian law; common law; evaluation of evidence; ICC judges; ICC trials; Ongwen case; prejudice; prosecutorial burden of proof;
active roles for defence and prosecution
American model
continental judges
coordinate model
cross-examination
European Union
evidence
hierarchical model
party-led proceedings 14, 99
prosecutorial burden of proof
Rome Statute
Ambos, Judge Kai
judge’s role in ICC trials
judicial discetion
ICC legal framework
prosecutorial role
amicus curiae see See Gbagbo and Blé Goudé case: amici curiae. See under Ongwen case. See also Robinson, Darryl.
Arendt, Hannah
assessment of evidence see See evaluation of evidence
Bemba case See Rules of Procedure and Evidence
acquittal
accusations against (charges)
admissibility of evidence
adversarial trial
appeal
beyond a reasonable doubt
circumstantial evidence
conviction
court decisions
crimes against humanity
dispute over admissibility and weight of evidence
Eboe-Osuji, Judge Chile opinion
evidence assessment
evidence law
FIDH (International Federation of Human Rights)
hearsay evidence
interlocutory decisions
judicial discretion
judicial opinions
judicial reasoning
Ozaki, Judge Kuniko opinion
Wyngaert, Judge Christine and Morrison, Judge Howard opinions
Mondonga Inquiry
prejudice
prosecution
prosecutorial burden
rights to a fair trial
trial of Bemba
truth-seeking mission
weight of evidence
Bemba, Jean Pierre, Jean Pierre Bemba Gombo see See Bemba case
Blé Goudé, Charles see See Gbagbo and Blé Goudé case
burden of proof see See prosecutorial burden of proof
Canadian law See also circumstantial evidence; evidence law
adversarial legal system
Cartesian doubt
case law
Civil Code of Quebec
expert testimony
influence in ICC framework
evidence problems
evolution of
judicial discretion
judicial reasoning
prejudice
proportionality in sentencing decisions
Quebec Act of 1774
Handy (R v Handy, [2002] 2 S.C.R. 908, 2002 SCC 56)
rights to a fair trial
Sheppard v. R., [2002] 1 S.C.R.
Supreme Court of Canada
tripartite approach
Case study analysis See Bemba case; comparative analysis; Gbagbo and Blé Goudé case; Ongwen case
misunderstandings of standard of proof
Central African Republic (CAR) See also Bemba case
Bozizé, General François
Forces Armées Centrafricaines (FACA)
Patassé, Ange–Félix
circumstantial evidence See under Bemba case; Ggagbo and Blé Goudé case; prosecutorial burden of proof
Canadian law
Cartesian doubt
criminal trials
conviction
evaluation of
guilt
innocence
inferences from
insufficient
motive
no case to answer motions
poor quality
reliability
value as direct evidence
wrongful convictions
civil law see See continental law
common law See Canadian law; comparative analysis; evaluation of evidence; evidence admissibility; evidence law; ICC evidence rules; ICC legal framework: legal transplants; Ongwen case: sentencing; prosecutorial burden of proof: beyond a reasonable doubt
adverserial legal system
beyond a reasonable doubt
case law
evaluation of evidence admissibility
evaluation of evidence weight
in ICC framework
guilty plea
Henderson, Judge
judge’s role
precedent
prejudice
presumption of innocence
prosecutor’s role
rights to a fair trial
technical formalities
trial mode
truth
comparative analysis
Canada and ICC evidence law
Canada, U.K., and U.S. case law
common law vs. continental law
common law, continental law and Canadian law
hierarchical model vs. coordinate model
presumption of innocence
continental law See comparative analysis; evaluation of evidence; evidence admissibility; evidence law; ICC judges; ICC legal framework; prosecutorial burden of proof: beyond a reasonable doubt; Rome Statute
absence of case law
absence of evidence rules
bias
guilty plea
inexperience
in dubio pro reo principle
in ICC legal framework
inquisitorial legal system
judge’s role
judge’s role in adverserial trial model
judicial discretion
l’intime conviction
material truth
misconceptions of common law traditions
misunderstanding evidence evaluation
precedent
presumption of innocence
prosecutorial burden
prosecutor’s role
reasonable doubt
right to a fair trial
sentencing
trial mode
truth-seeking mandate
Weigend, Professor Thomas
Wigmore, John Henry
conviction See also Bemba case; circumstantial evidence; Gbagbo and Blé Goudé case; Ongwen –case
appellate court duty
certainty
common law
continental law
conviction hearing
evidence rules
evidentiary barriers
guilty plea
legal standards for
prosecutorial burden
reasonable inferences of admissible evidence
wrongful conviction
Côte d’Ivoire civil war See Gbagbo and Blé Goudé case
Accra III Agreement
Bédié, Henri Konan
Guéï, General Robert
Houphouët-Boigny, Félix
Kokou, Joseph
Linas-Marcoussis Agreement
Ouagadougou Political Agreement
Ouattara, Alassane
Pretoria Agreement
Rally of the Republicans
crime of aggression
Damaška, Professor Mirjan
evaluation of evidence
models of trial procedures
Descartes, René
deGuzman, Judge Margaret See also Gbagbo and Blé Goudé case: amici curiae
Democratic Republic of Congo
Armée de libération du Congo
Mouvement de libération du Congo (MLC)
direct evidence See also circumstantial evidence; evaluation of evidence: witness testimony; hearsay evidence
absence of direct evidence
Bemba case
Combs, Nancy
direct evidence (cont.)
common law
Gbagbo and Blé Goudé case
probative value
domestic courts (national courts)
causation
crimes against humanity
direct evidence
domestic courts vs. ICC trials
evidence
in European Union
judicial discretion
national criminal procedure law
national legal traditions
proportionality in sentencing decisions
prosecuting individul crimes
prosecuting international crimes
witness testimony
Eboe-Osuji, Judge Chile see See under Bemba case; Gbagbo and Blé Goudé case; Ongwen case
evaluation of evidence See under evidence law: Canadian law. See also circumstantial evidence; direct evidence; free evaluation of evidence; prejudice; probative value of evidence
adversarial legal system (trial)
bad character evidence
Combs, Professor Nancy
common law approach
continental judicial approach
corroboration of evidence
disputes (contrasting opinions)
fair evaluation
forensic evidence
for weight
prima facie evaluation
relevance of evidence
reliability and credibility of evidence
poor quality of
trial decisions
truth-seeking
witness testimony
evidence assessment see See evaluation of evidence
evidence admissibility
admissibility rulings and reasoning
admission process
antithetical views
Canadian law
common law
continental law
continental misconceptions
evidence law See also circumstantial evidence: evaluation; Canadian law: Handy; ICC evidence law; ICC judges;
Canadian law
common law
contemporary evidence law
continental law
judicial discretion
prejudice
right to a fair trial
similar fact evidence
evidentiary burden see See prosecutorial burden of proof
ICC legal framework see See Bemba case; evaluation of evidence; Gbagbo and Blé Goudé case; hearsay evidence; ICC case law analysis; ICC judges: training; Ongwen case; prejudice; probative value
Candian legal system
common law
continental law
evidence law
ICC case law
ICC evidence law
judicial discretion
prima facie admissiblity of evidence
submission regime
timing of rulings
vs. evidence weight
evolution of legal systems see See ICC case law: evolution; Stephens, Sir James Fitzjames
expert evidence (expert witness)
Canadian law
continental law
Ggagbo and Blé Goudé case
ICC cases
Ongwen case
Titeca, Professor Kristof
Ferencz, Benjamin see See Ongwen case: child soldier
free assessment of evidence see See free evaluation of evidence
free evaluation of evidence (free assessment) See also holistic approach; ICC legal framework; probative value of evidence; prosecutorial burden of proof; Rome Statute: free evaluation and prosecutorial burden of proof
admissibility rulings
Bemba case
continental law system
credibility and reliability of evidence
flexibility
ICC trials
l’intime conviction
hierarchical model of authority
ICC mixed approach
in adversarial trial
Napoleonic Code of Criminal Procedure
Ongwen case
Piragoff, Donald
truth-seeking mission
Friedman, Professor Lawrence
Gbagbo and Blé Goudé case See also no case to answer; probative value of evidence
acquittal
admissability of evidence
amici curiae
Appeal Court decision
arrest warrents
antithetical views
Bossa, Judge Balungi opinion
circumstantial evidence
conviction
court decisions
crimes against humanity
documentary evidence
Eboe–Osuji, Judge Chile opinion
evidence law
free assessment of evidence
Gbagbo, Laurent Koudou
Gbagbo, Simone
Guéï, General Robert opinion
Henderson, Judge Geoffrey opinion
Herrera-Carbuccia, Judge Olga opinion
Ibáñez Carranza, Judge Luz del Carmen opinion
interlocutory decisions
judges’ opinions
judicial discretion
judicial reasoning
Morrison, Judge Howard opinion
no case to answer
Ozaki, Judge Kuniko opinion
presumption of innocence
Gbagbo and Blé Goudé case (cont.)
prosecutorial burden of proof
reliability of evidence (indicia)
Tarfusser, Judge Cuno Jakob opinion
Trial Court decision
trial of Gbagbo and Blé Goudé
Wyngaert, Judge Christine opinion
Wyngaert, Judge Christine and Morrison, Judge Howard opinion
genocide
Ginsberg, Justice Ruth Bader
guilty plea
hearsay evidence See also Bemba case; Canadian law
adversarial approach
anonymous hearsay evidence
principle of necessity
principle of orality (procès–verbaux)
principle of reliability
rights to a fair trial
transparency
Herschell, Lord Farrer see See evaluation of evidence: bad character evidence
hierarchical command structures
holistic approach
Bemba case
contintental law
Gbagbo and Blé Goudé case
holistic vs. atomistic approach
misunderstanding holistic approach
Ongwen case
Human Rights Watch
ICC case law See also Canadian law; continental law: absence of case law; ICC judges: interpretation of case law
analysis
challenges of balancing legal traditions
evidence admissibility
evidence problems
evolution
judicial discretion
legal traditions
misconceptions
misinterpretations
motive and intent
rights to a fair trial
sentencing
ICC evidence law See also Bemba case; Gbagbo and Blé Goudé case; ICC judges: training; prosecutorial burden of proof
antithetical views
bespoke evidence law (tailored evidence law)
development
challenges
complementarity
conflict of legal traditions
documentary evidence
misunderstandings in applying
rights to a fair trial
unpredictable judicial reasoning
vs. ICC Rules and Procedures
ICC evidence rules See under conviction. See also direct evidence; free evaluation of evidence; Rome Statute: Rules of Procedure and Evidence
admissibility of evidence and free evaluation
complexity of causation
common law elements
evidentiary difficulties in ICC trials
exculpatory evidence
inferred liability (inferred motives)
judicial discretion
mens rea
ICC judges See under Gbagbo and Blé Goudé case. See also circumstantial evidence; common law: adversarial legal system. See also free evaluation of evidence.
assessing evidence in adversarial trial
criteria for choosing
contradictory evidentiary rules
interpretation of case law
antithetical decisions
antithetical legal backgrounds
antithetical views
conflicting mindsets (conflicting opinions) & conceptual understanding
contintental judges
inconsistencies
legal diversity
prosecutorial burden of proof
rights to a fair trial
training
ICC judicial reasoning (judicial opinions) See also Bemba case; evidence admissibility: admissibility rulings and reasoning; Gbagbo and Blé Goudé case; ICC evidence law: unpredictable judicial reasoning; Ongwen case; prejudice: reasoning prejudice
applying prosecutorial burden of proof or free evaluation of evidence
case analysis
classic continental tradition
Canadian legal tradition
contradictory (differences in) reasoning
determination of guilt or innocence
experience of judge
incompatibility of (antithetical) legal traditions
McDermott, Yvonne
Piragoff, Donald
Schmitt, Judge Bertram
sentencing reasoning
transparent reasoning
ICC judicial opinions See also Bemba case; Gbagbo and Blé Goudé case; Ongwen case
conflicts
contrasting (different) opinions
ICC Court criticism
ICC legal framework See also Ambos, Judge Kai; common law; continental law; ICC judges: inconsistencies
adversarial ICC trial (system)
combining burden of proof and free evaluation of evidence
crimes against humanity
development of
differences to classic common law
hybrid features from continental and common law systems
incompatibility of legal traditions
judicial discretion
judge’s role
large scale crimes
legal transplants
Paris Declaration on the Effectiveness of International Criminal Justice
precedence
prosecutorial burden
prosecutor’s role
presumption of innocence
rights to a fair trial
truth-seeking mission (truth-seeking mandate)
war crimes
ICC trials
admissibility of evidence
adversarial
beyond a reasonable doubt
both adversarial and continental features
burden of proof
decision delivery
flexibility
guilty plea
hybrid
inferences
judge’s investigative role
legal standards
precedent
sentencing hearing
trial mode
international criminal law See also circumstantial evidence: criminal trials; prosecutorial burden of proof (beyond a reasonable doubt): standard of proof
international criminal procedure
International Monetary Fund
Ivory Coast see See Cote d’Ivoire; Gbagbo and Blé Goudé
Jackson, Judge Robert H.
right to a fair trial
Kirsch, Judge Philippe
l’intime conviction see See Continental law
Langbein, Professor John H.
Legrand, Pierre see See ICC legal framework: incompatibility of legal traditions; ICC legal framework: -legal transplants; ICC judges
Lifchus [R. v. Lifchus, [1997] 3 S.C.R. 320]
Lord’s Resistance Army, Uganda see See Ongwen
Lubanga Dyilo, Thomas see See Ongwen case
Makin [Makin v Attorney General for New South Wales, [1894] [1984] AC57] see See evidence law: similar fact evidence
McDermott, Professor Yvonne
mental incapacity (duress) see See Ongwen Case: affirmative defence
Meron, Judge Theodor
Moreno Ocampo, ICC Chief Prosecutor Luis
Murphy, Judge Peter
no case to answer
Obote, Milton
Obote II regime
Tito Okello
Uganda National Liberation Army
Ongwen case See also Bemba case; expert evidence; Uganda Civil War
adversarial legal system (adversarial nature)
affirmative defence (mental capacity and duress)
amicus curiae
blameworthiness, moral
child soldier
conviction
court decision
credibility of evidence
crimes against humanity
criticism of ICC investigations
documentary evidence
Dolan, Professor Chris
Drumbl, Professor Mark
Dyilo, Thomas Lubanga
Eboe-Osuji, Judge Chile
free evaluation of evidence
gravity
Ibáñez Carranza, Judge Luz del Carmen
interlocutory decisions
judicial discretion
judicial reasoning
mental incapacity (“air of reality test”)
Pangalangan, Judge Raul C.
presumption of sanity
proportionality
prosecutorial burden of proof
right to a fair trial
sentencing hearing
standard of proof
submission regime
trial (Trial Court, Trial Chamber)
truth-seeking mission
victims/victimisation
Westernised legal approach & views
Ongwen, Dominic see See Ongwen case
Paciocco, David M., Palma Paciocco, and Lee Steusser
prejudice See also Bemba case, Canadian law; common law; evidence –law; ICC legal framework
adversarial legal system (adversarial common law)
continental law
bad character prejudice
moral prejudice
reasoning prejudice
outweighing probative value
rights to a fair trial
presumption of innocence See also Woolmington
prima facie admissibility of evidence
probative value of evidence See also prejudice;
Rome Statute: free evaluation of evidence; weight of evidence
Bemba case
Canada
continental law
corroboration evidence
evidence admissibility
Gbagbo and Blé Goudé case
indicia of reliability
Ongwen case
principle of orality
three-part test
outweighing prejudicial impact
Prosecutor v. Ruto and Sang see See Gbagbo and Blé Goudé case: Henderson, Judge Geoffrey opinion
prosecutorial burden of proof (beyond a reasonable doubt) See under acquittal; Bemba case; continental law; conviction; Gbagbo and Blé Goudé case; ICC case law: prosecutor; ICC legal framework; Ongwen case; Rome Statute. See also free evaluation of evidence; Lifchus; Woolmington.
adverserial legal system
adjusting prosecutor’s narrative
antithetical dynamics with free evaluation (l’intime conviction)
burden of proving defences
ICC case law analysis
Canadian law
circumstantial evidence
coexistence with free evaluation
common law
comparing legal systems
prosecutorial burden of proof (cont.)
contraditory application of
continental law
determination of evidence admissibility
domestic courts
evaluation against weight
evidentiary and persuasive burdens
establishing guilt
European Union mandate
failure to meet burden
feature of hybrid ICC trials
ICC evidence law
ICC evidence rules
inapplicability of free evaluation
insufficient evidence
judicial experience
judicial reasoning
material facts vs. subsidiary facts
misapplication of evidence evaluation
multiple reasonable inferences
no case to answer
presumption of innocence
right to a fair trial
standard of proof
trier of fact
truth-seeking mandate
Procès-verbaux See hearsay evidence
psychological trauma See also Ongwen case
R. v. Khela, 2009 SCC
R. v. Villaroman, [2016] 1 S.C.R. see See Canadian law: circumstantial evidence
reasonable doubt see See prosecutorial burden of proof
Robinson, Professor Darryl See also Gbagbo and Blé Goudé case: amici curiae; ICC evidence law; Ongwen case
Cartesian doubt
conviction
rights to a fair trial
Rome Statute See also Bemba case; Gbagbo and Blé Goudé case; Ongwen case. See also Rules of Procedure and Evidence
Canada influence
classic continental legal system
common and continental legal traditions
compromise
free evaluation and prosecutorial burden of proof
ICC adversarial trial
Independent Expert Review
Kirsch, Philippe
Preparatory Works
United Nations Diplomatic Conference of Plenipotentiaries
Rules of Procedure and Evidence See under ICC evidence law
amendment
Bemba case
Gbagbo and Blé Goudé case
Ongwen case
Schabas, Professor William see See Ongwen case: sentencing
Schmitt, Judge Bertram see See ICC judges
Stephens, Sir James Fitzjames
The Prosecutor v. Dominic Ongwen see See Ongwen case
The Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08) see See Bemba case
The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé see See Gbagbo and Blé Goudé case
theoretical analysis See also circumstantial evidence; evidence admissibility; evidence law: similar fact evidence; hearsay evidence; ICC evidence rules; ICC judges; misapplication of evidence; prosecutorial burden of proof;
Titeca, Professor Kristof see See expert evidence
Uganda Civil War
Acholi
Acholi traditional legal system
Acholiland
Bashir, Omar al-
Dada, Idi Amin
Front for National Salvation
Holy Spirit Movement, Acholiland
Kony, Joseph
“Lakwena”, Alice Auma
LRA (Lord’s Resistance Army)
Museveni, Yoweri
National Resistance Army
North Uganda
Tanzania
Uganda’s People Democratic Army
Victor v. Nebraska, 511 U.S. 1 (1994) see See Ginsburg, Justice Ruth Bader
Von Hirsch, Andrew and Andrew Ashworth see See under Ongwen case: proportionality
Watson, Professor Alan see See legal transplatnts
Wigmore, Professor John Henry see See under continental law
witness testimony see See under evaluation of evidence
Woolmington (Woolmington v. D.P.P. [1935] AC 462) see See acquittal