Questions being advanced by commentators observing the confirmation charges hearings are whether ICC Chief Prosecutor Luis Moreno Ocampo has sufficient evidence and whether he conducted independent investigations. To set the record straight, no one can claim to know what the prosecutor did or did not do. The Pre-Trial Chamber is the only one that can determine the veracity of the evidence presented by the chief prosecutor.
But what is the established evidentiary burden before the ICC? Jurisprudence seems to indicate that this varies from one Pre-Trial Chamber to another. The ICC itself is yet to establish sufficient case law database that can help predict what the Pre-Trial Chamber II on the Kenyan cases may adopt.
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