Can we return to the Law, please? Rethinking the judicial interpretation of procedural rules in the ICC – a conversation with judge tarfusser after the Gbagbo-Blé Goude appeal judgment

On 31 March 2021, the Appeals Chamber of the International Criminal Court (“ICC”) delivered its judgment in the Prosecutor’s appeal against the decision of Trial Chamber I of 15 January 2019 (with reasons issued on 16 July 2019), wherein the Trial Chamber acquitted Mr Laurent Gbagbo and Mr Charles Blé Goudé of all charges. The Appeals Chamber found no error that could have materially affected the decision of the Trial Chamber in relation to both of the Prosecutor’s grounds of appeal. Therefore, the Appeals Chamber rejected the Prosecutor’s appeal and confirmed the decision of the Trial Chamber. In this conversation, Giovanni Chiarini interviews Cuno Jakob Tarfusser – former Judge and Second Vice-President of the ICC – on two of the many fragile points that emerge from this appeal judgment, such as the method of judicial interpretation regarding the procedural rules. Specifically, they focus on: 1) the interpretation of “no case to answer”; and 2) the interpretation of the burden of proof. At the end of this short conversation, we could definitely agree that the manner of judicial interpretation of the procedural rules should strictly conform to the legal framework of the Court. Otherwise, an increasingly intricate and unforeseeable procedure emerges, based on an almost arbitrary discretion of the judges.