By Ady Niv, lawyer at the international criminal tribunals and courts. The views expressed herein are those of the author alone and do not necessarily reflect the views of any International Tribunal or Court in general.
Since their creation, international tribunals and courts have been grappling with the application of the “no case to answer” test (NCA). Originating in adversarial legal systems, the NCA is a juncture at the end of Prosecution’s case that allows the defence to argue that the Prosecution has failed its burden of proof, even if its evidence were given full weight. If the motion is successful, the defendant is acquitted of any of the charges that are not supported by the evidence, without presenting a case in rebuttal. The purpose of the NCA is to safeguard the principle of presumption of innocence and promote judicial economy.
The Symptoms of the NCA test
The problem with the NCA test is that it was originally designed for trials with a jury, in which the judge was only the trier of law. In that capacity, the judge would only evaluate whether a reasonable jury could convict the accused, before allowing the trial to continue with the defence case. However, international tribunals and courts – devoid of any jury – incorporated this test without any adjustment to its new legal surrounding. According to the NCA test in international criminal adjudication, the Trial Chamber has to decide whether any reasonable trial chamber could convict the accused based on the evidence, given it full probative value. Considering there is no jury in international criminal proceedings, this formula makes little sense. ICTY Judge Agius (as was his title at that time) explained (p. 23118):
“[…] we have got this hybrid animal of transporting the common law principle and putting us in the anomalous situation where we have to acknowledge that we — the three of us suffer from schizophrenia. We have to convince ourselves that we are not going to be the Judges that will eventually try this case at the end […]”
The International Criminal Court has been suffering from a similar malaise when NCA claims were raised. In the Gbagbo and Blé case – in which both accused were acquitted of all charges following an NCA motion – the Appeals Chamber, aware of the issues in applying the “reasonable trial chamber” formula within the international judicial arena, failed to rectify this problem (see Appeals judgment, paras. 303-340 and discussion here).
Is there a cure for the NCA?
A decade ago, I argued that requiring a Trial Chamber to speculate whether another trial chamber could convict had no place in the judicial process. I proposed two possible solutions for NCA claims in non-jury based trials – either the Trial Chamber examines the evidence only as a trier of law to ascertain that the evidence supports the legal elements required for a conviction, or the Trial Chamber examines whether it could convict the accused based on the Prosecution’s evidence (whether presumed to have full weight or following evidentiary assessment). In December 2025, a new rule introduced at the ICC seems to have favoured the former solution.
Following a proposal from the plenary of judges, the ICC Assembly of States Parties adopted Rule 140 quater, which sets the parameters for NCA motions at the ICC:
“1. Upon the conclusion of the evidence presented by the Prosecutor or if evidence is presented on behalf of the victims, at the conclusion of that evidence, if the Trial Chamber finds that the evidence is insufficient in law to sustain a conviction on one or more charges, the Trial Chamber, on a motion being filed or proprio motu, shall enter a decision of acquittal on any charge.” (emphasis added)
This is a welcome development, at the very least, because the procedure for dealing with NCA motions is now anchored in the Rules of Procedure and Evidence of the Court, as it was with the ICC older siblings, the ICTY and ICTR. The test should not be left to judges’ individual discretion, in particular since an ICC chamber is not required to apply “rules of law as interpreted in its previous decisions” (article 21(2)) and is free to adopt its own procedure unless regulated in the Statute or in the Rules (article 64). The new rule will surely improve consistency and legal foreseeability in the adjudication of such motions.
Most importantly, Rule 140 quater potentially clarifies the test for considering an NCA motion. According to the new rule, the assessment by the Trial Chamber is limited to the legal insufficiency of the evidence. This clearly refers to the trier of law role of the Trial Chamber, to the exclusion of its ‘ultimate trier of fact’ role. As purely a trier of law, the Trial Chamber has to ensure that there is some evidence in support of the different elements of the crime charged. It is not required to conduct an in-depth analysis of the whole evidence. The legal test is considerably narrower, limited to finding that the crime charged has some evidentiary footing to stand on.
Unless the Prosecution’s case has changed drastically since the charges were confirmed by the Pre-Trial Chamber, the Trial Chamber will most likely reach the exact same conclusion as the Pre-Trial Chamber, and will allow the trial to proceed. While serving different purposes, the confirmation of charges by the Pre-Trial Chamber and the NCA assessment by the Trial Chamber are filters of charges. The Pre-Trial Chamber, in confirming the charges, has to determine whether “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged” (article 61(7)). Arguably, Rule 140 quater would then require the Trial Chamber to determine whether there is sufficient evidence to establish beyond reasonable doubt that the accused committed each of the crimes charged. This would make sense considering that a successful NCA motion – when there is a reasonable doubt even if the evidence is given full weight – will result in a judgement of acquittal (see also Rule 140 quater (8)). This is also in line with the requirement of the Rule to ensure that the evidence can sustain a conviction. However, and contrary to the Pre-Trial Chamber, which may evaluate the credibility of the evidence presented when deciding on whether to confirm the charges, in its exclusive role as trier of law in the mid-trial stage, the Trial Chamber does not need to be convinced by the evidence, or even to assess it as it is given its full weight; rather it only has to ensure that there is some evidence in support of the allegations.
This simple assessment is not necessarily an easy one, in particular when dealing with circumstantial evidence – a common feature in international criminal proceedings. In such cases, the Trial Chamber has to be satisfied that the circumstantial evidence can sustain the alleged conclusion, but it does not need to be the only reasonable conclusion from the circumstantial evidence. The requirement that that conclusion is the only reasonable inference from the circumstantial evidence is reserved for the end of the trial, when deciding upon the guilt of the accused, having assessed the entire evidence (see, e.g,. Muvunyi judgement, para. 43).
By requiring the Trial Chamber to assess whether the evidence is sufficient in law, the new rule seemingly excludes from this exercise any deference to the fictitious notion of a “reasonable trial chamber”. It would defy reason to persist with the previous NCA test, requiring a Trial Chamber to speculate whether another reasonable trial chamber could find that the elements of the crime are supported by any of the evidence admitted. If the rule has indeed changed the NCA test, as suggested here, then the anomalousness of the NCA judicial assessment, to which Judge Agius alluded, has been corrected for the first time in international criminal adjudication.
Does Rule 140 quater Promote Judicial Economy?
One side effect of NCA motions in international adjudication has the potential of defeating its own purpose, namely, judicial economy. If acquitted of any of the charges, the trial is considerably shortened and resources are not wasted unnecessarily, but when NCA motions are dismissed, the procedure can be very taxing, extending further the trial. NCA motions were so time consuming at the ICTY, that the rules were amended in December 2004, requiring judges to render an oral decision.
The drafters of Rule 140 quater were acutely aware of the potential risks of NCA motions if not restrained and regulated (see also, Expert Review Report, paras. 525-530). First, the Rule does not confer a right for NCA motions; it is within the Trial Chamber’s discretion to grant leave for such a filing, while ensuring that the trial is fair and expeditious (Rule 140 quater, sub-sections 2-4; article 64(2)). This empowers trial chambers, which are undoubtfully satisfied that the Prosecution has met its burden at this mid-trial stage, to pre-empt NCA motions that have no chance of success. Second, the Rule highlights the necessarily expeditious nature of the procedure for NCA motions and that a decision “shall be issued as expeditiously as possible within 45 days of the hearing or written arguments”(Rule 140 quater, sub-sections 5-7; see also Regulation 56 bis).
Equally important, Rule 140 quater refers to “charges” and not to incidents, which further distances the Trial Chamber from a detailed analysis of the facts. The only question is whether the charge, as a whole, survived the first half of the criminal proceedings and has not been completely obliterated (for example, in cases where the Prosecution could not produce its witnesses or the witnesses lost any credence while taking the stand). This is a binary assessment. Even if some of the incidents charged are no longer supported by the evidence, as long as there is enough for the charge to remain, the NCA claim shall be dismissed.
The above measures, coupled with the limited role of the Trial Chamber as a trier of law, ensure that the NCA procedure is used wisely, without wasting judicial resources when it is unwarranted. From this perspective, Rule 140 quater is a remarkable balance between the right of the accused to be presumed innocent and maintaining an expeditious trial.
Is That Just What the Doctor Ordered?
Rule 140 quater is a refreshing approach to NCA motions. By delimiting the NCA test to the legal sufficiency of the evidence, the raison d’être of this procedure is fulfilled – it preserves the sacrosanct principle of presumption of innocence and reflects the Prosecution’s burden of proof, while avoiding a mid-trial in-depth assessment of the evidence – an exercise that should be reserved for the end of the trial.
The Trial Chamber has only to examine whether the Prosecution succeeded in showing that there are some incriminating clouds floating above the accused that require the defence to open its evidentiary umbrella – if it so wishes. In other words, the Trial Chamber has to ask itself: has the Prosecution made a sufficient case for the accused to answer? Nothing more, nothing less.
Hopefully, in the near future, the Chambers will interpret Rule 140 quater as the much needed panacea for NCA motions, laying the previous NCA test to rest, rather than reducing the Rule to the same old jagged pill.
