Abandonement of a crime
Actus reus is the Latin term for “guilty act” and often referred to as the objective element of a crime. Actus reus refers to an active conduct while the other element, mens rea, refers to the intent. In order to establish criminal liability it must be proved a person committed a “guilty act” (actus reus) and has a “guilty mind” (mens rea).
Adjudicated facts are findings which have been determined in earlier proceedings. Therefore they don‘t have to be proven again at trial. Taking judicial notice of adjudicated facts is a method to speed up proceedings and avoid unnecessary disputes. The Chamber creates a presumption which may, however, be challenged by the opposing party by submitting own evidence. An example for an adjudicated fact is the nature of a conflict which has been classified earlier already. The Rome Statute does not explicitly provide for adjudicated facts.
Admissibility of evidence
At the ICC any evidence is admissible that is, first, relevant and, second, has a probative value. Probative value should be understood as related to the allegations. Even evidence that could not be used before a national court might be admissible. Evidence before the ICC is inadmissible only when it causes substantial doubts on its reliability, or when it would seriously damage the integrity of the Court or the proceedings, or when its probative value is outweigh by the need for a fair trial. An example for the second and third criteria would be torture which would damage the trust in the court and violate the right to a fair trial.
Prosecutor and defence may agree that an alleged fact is not contested – for example the date of a country‘s declaration of independence. According to Rule 69 of the Rules of Procedure and Evidence, the Chamber shall consider those facts as proven. In the Lubanga case, the parties were requested to provide the Trial Chamber with a “draft schedule” of agreed facts eight weeks before the start of the trial.
Amicus curiae, a friend of the court, is a third entity which does not take neither the side of the prosecutor nor the defense. The Amicus curiae makes submissions and can be called by the Chamber in order to make proceedings more smooth.
*Benjamin Duerr is a correspondent and foreign reporter covering the International Criminal Court and the war crimes tribunals in The Hague.