FREE PROOF, OVERLONG TRIALS AND LEGITIMACY IN INTERNATIONAL CRIMINAL LAW: THE PATH TO REFORM

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FREE PROOF, OVERLONG TRIALS AND LEGITIMACY IN INTERNATIONAL CRIMINAL LAW: THE PATH TO REFORM

by

KARL G. KEMP (11356952) A thesis submitted in partial fulfilment of the

requirements for the degree of MASTER OF LAWS (LL.M.) at the UNIVERSITY OF AMSTERDAM LAW SCHOOL 2017

Supervised by: Prof. Koen Vriend

Track: LLM International and European Law: Public International Law Submitted on: 17 July 2017

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This argumentative thesis regards the effect of the free system of evidence in international criminal trials on trial length and fair trial rights and concludes that it has been negative, and thus that reform is necessary. The legitimacy of the ICC, the focus of the thesis, is dependent on the highest possible standards of fair trial guarantees and overlong trials, in addition to fair trial right violations, endanger this legitimacy significantly. The thesis argues that the current normative content of ‘undue delay’ and test therefore is inappropriate to the international criminal law context and suggests an alternative content based on cumulative human rights standards. It also addresses the development of evidentiary practice in international criminal law and traces several themes, concluding that the conditions that necessitated a liberal system of free proof are no longer present in the modern context at the ICC, leading into an analysis of current practice and a thorough analysis of selected case law that illustrates the identified problems. It concludes that, having regard to the ICC’s initial conviction in Lubanga, the ICC is at risk of repeating the mistakes of its forbears, and yet has at its disposal the tools to remedy the situation speedily and effectively, in order to reduce trial lengths and guarantee fair trials as adjudged by human rights standards, minimizing the risk of mistrials and granting the court moral clout in order to justify its existence and engage with its detractors.

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1. Introduction

Not since the Nuremberg trials has a court been under as much public pressure as the International

Criminal Court (ICC). It is constantly under fire in the media1 and receives precious little praise in

recompense. It functions in a unique sphere of law, poisoned by politics,2 haltered by a lack of state

cooperation, blighted by inexperience, in addition to being possessed of a developing logistical

system and organizational structure3. Its legitimacy in the eyes of the international community is (or

should be) the single most pressing issue for practitioners and observers of the international criminal justice project across the world, being as it is the first and only permanent forum for the adjudication of international crimes. This is due to the fact that the court’s ius puniendi is largely predicated on international consensus – without legitimacy, it cannot hope to hold onto its establishing mandate. In other words: an illegitimate ICC is a useless, non-functioning ICC.

Legitimacy is a relative concept. Leaving aside unfounded allegations of bias towards certain regions, the chief allegation lodged against international criminal trials is that the entire process, from investigation to sentencing, is overlong.4 This by itself does not seem to engender a crisis of legitimacy. Certainly the criticism thus far has focused on the impact this issue has on funding, and more broadly, the patience of the public. Strictly speaking, these are not matters of law, and should be treated as such. They are severable from the technical functioning of the court insofar as they relate to the practice of international criminal law in a substantive sense. Legitimacy, for purposes of this thesis, relates to the infringement of human and fair trial rights engendered by aspects of the evidentiary regime of the ICC, and the near-unlimited discretion given to judges from differing legal backgrounds to structure proceedings on an ad hoc basis.

1

Elizabeth Peet “Why is the ICC So Bad At Prosecuting War Criminals” (Wilson Quarterly, June 15 2015) https://wilsonquarterly.com/stories/why-is-the-international-criminal-court-so-bad-at-prosecuting-war-criminals/

accessed on 4 July 2017 ; Jessica Hatcher-Moore “Is the World’s Highest Court Fit for Purpose?” (The Guardian, 5 April 2017) <https://www.theguardian.com/global-development-professionals-network/2017/apr/05/international-criminal-court-fit-purpose> accessed on 4 July 2017 ; Samar Al-Bulushi “Beyond the ICC” (Africa Is A Country, 27 October 2016) http://africasacountry.com/2016/10/beyond-the-international-criminal-court/ accessed on 4 July 2017

2

Marie Dhumieres “Judges Thrown of Yugoslavia War Crimes Tribunal For Criticising ‘Change of Direction’ in Verdicts” (The Independent, 24 September 2013) http://www.independent.co.uk/news/world/europe/judge-thrown-off-yugoslavia-war-crimes-tribunal-for-criticising-change-of-direction-in-verdicts-8837433.html accessed on 4 July 2017 3

Friman, Giuirgila, Kress et al “Measures Available to the ICC To Reduce the Length of Proceedings” Informal Expert Paper, ICC Office of the Prosecutor 2003, accessible at <https://www.legal-tools.org/doc/7eba03/pdf/>

4

Owen Bowcott “The Thomas Lubanga Conviction: Why did it take so Long?” (The Guardian, 14 March 2012) <https://www.theguardian.com/law/2012/mar/14/thomas-lubanga-international-criminal-court> accessed on 4 July 2017 ; Jon Silverman “10 years, $900m, one conviction: Does the ICC Cost Too Much?” (BBC News, 12 March 2012) accessed on 4 July 2017

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Hence, this thesis aims to show that overlong trials have had and will in future have human rights and fair trial implications that cannot be ignored, and that strike at the heart of the legitimacy of the court. It aims to explain how the unregulated system of evidence and largely unfettered judicial control adopted by international tribunals since the International Military Tribunal at Nuremberg (IMT or ‘Nuremberg Trials’) has been an essential contributor to this state of affairs. It seeks to illustrate this by zooming in on evidentiary provisions and their development from Nuremberg to the ICC; by explaining, through thorough analysis of case law, how they have often created unmanageable quantities of evidence and inefficient processes (what Peter Murphy terms ‘evidential

debris’)5 that result in an infringement of the accused’s rights.

The essential conclusion is that taken cumulatively, the scope and scale of fair trial rights infringements engendered by the current system of evidence, both those of undue delay and a lack of substantive equality between prosecution and defense, necessitates reform, lest the ICC lose all legitimacy in the eyes of the international community. This is made even more pressing by the worrying criticism in this regard leveled against several of the ICC’s most recent cases, notably those of Lubanga and Katanga, and the role that poorly regulated evidence played in their questionable convictions. Whilst not a uniform concern applicable to every single case, the pervasiveness of the infringements lead one to question the sustainability of the general system in the long term.

After having illustrated the problem at the hand of case law, the thesis will briefly explore the possibilities of reform in the evidence regime that may address the problems raised, specifically looking at the potential introduction of an exclusionary regime (critically, not exclusionary rules per se) tailored to the exigencies and pitfalls of international criminal law. It should be stressed from the outset that this does not entail the wholesale import of common law-esque exclusionary rules. Rather, it looks at the nature and purpose of these rules and areas in which their spirit, not technicality, could find purchase, keeping in mind the sui generis nature of the ICC. This is discussed in the context of minor amendments, practice directives and judicial policy.

The thesis will start by outlining the general concept of a ‘fair trial’ and its guarantees, in order to demonstrate effectively in the pursuant section how the system of free proof and judicial control offends these guarantees. It also aims to show why fair trial rights are so important as to strike directly at the heart of legitimacy in the case of the ICC.

5_{HH Peter Murphy & Lina Baddour “Evidence and the Selection of Judges: The Need for a Harmonized Approach” in} Elias van Sliedregt & Sergey Vasiliev (eds) Pluralism in International Criminal Law Oxford University Press 2014

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2. The essence of a fair trial and how derogation from this standard affects

legitimacy

2.1 The primacy of fair trial rights and arguments for non-derogability

The concept of a fair trial is so entrenched in law as to be axiomatic.6 Robinson notes that there is now significant scholarship indicating that the right to a fair trial has attained the status of ius cogens, meaning that it is a non-derogable standard. And perhaps most conveniently and clearly, the various statutes of the ad hoc tribunals, internationalized courts and the Rome Statute itself contain explicit provisions guaranteeing a fair trial. As scholars have noted, and as held in the Lubanga judgement

most recently, it is the duty of the judiciary to ensure a fair trial.7

What exactly a “fair trial” constitutes in practice however, is more debatable. Throughout the many codified versions of it, several provisions are extremely common: the right to a public hearing; the right to an impartial, fair and competent tribunal; the right to counsel; the right to have the proceedings in a language that the accused can understand, etc. In most, if not all, of these instruments and treaties, some variation of the right to a trial without ‘undue delay’ is to be found, whether it be known as the right to a speedy or expeditious trial in the positive, or expressed in the negative. Self-evident as it is, it should also be noted that the impact of human rights standards and provisions on the ICC is pervasive and widely accepted as legitimate, and is often referred to in case law when judges seek to inform certain provisions with content; for example, in determining the

burden of proof and on which party it should rest.8

Stapleton notes that there are minimum rights which indicate that a hierarchy of fair trial rights

exists.9 Minimum rights are the baseline below which a court cannot go without compromising the

process as a whole. When reading any human rights text dealing with fair trial rights however, it is clear that the right to a reasonably speedy trial or the like is not deemed substantially less or more important than, for example, the right to legal counsel.

6_{P Robinson “The Right to a Fair Trial in International Law, With Specific Reference to the Work of the ICTY” (2009)}

BJIL 3 1

7

Goran Sluiter, Hakan Friman et al International Criminal Procedure: Principles and Rules Oxford University Press (2013) 795

8

M Klamberg Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed

Events Marthinus Nijhoff Publishers , Leiden (2013) 141

9

S Stapleton “Ensuring a Fair Trial in the ICC: Statutory Interpretation and the Impermissibility of Derogation” (1998) 31 NYUJILP 535, 9

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A fair trial generally, in the eyes of the lay man, is one that is basically impartial. Yet the roots of the matter go much deeper. An essential, overarching purpose is to be distilled from these provisions and the historical origins of fair trial rights cumulatively – that the accused should, substantively, be equipped with the appropriate ‘tools’ to engage with the charges leveled against him – so that even where a judge is biased (common sense dictates that this is invariable, no matter how slight) the accused stands a fair chance of defending himself. Provisions protecting this ability far outweigh provisions that speak only to technical rights that order the presentation of the defendant’s trial, insofar as they do not relate indirectly to this ability. Judge Shahabuddeen, speaking in a separate opinion in the notoriously disastrous trial of Slobodan Milosevic, noted that trial fairness does not relate to technical perfection. Rather, the “essential question is whether the accused has had a fair

chance of dealing with the allegations against him”.10 However, both historically and by virtue of

current practice, the right to an expeditious trial seems to take a back seat to, for example, the right to legal counsel or the right to cross-examine a witness (in certain jurisdictions).

The result of this discussion leaves undue delay in a difficult position vis a vis the more ‘substantive’ rights. After all, it is quite possible for a trial to take a long time in the general sense of the word but remain fair if the accused is able to take part on equal grounds – conversely, a trial that is expeditious will never be fair if the accused does not, for example, have a legal counsel appointed. It is thus vitally important for present purposes to establish a normative content to ‘undue delay’ as guaranteed by art 67(c) of the Rome Statute, in order for it to become a legal fulcrum upon which rights and fair trials, and consequently, legitimacy, can turn. The following section argues that the court’s current approach to this problem is inappropriate and suggests an alternative standard based on a knock-on human and trial rights effect.

It is important to keep in mind precisely how important these rights are for the legitimacy of the ICC. Article 21(3) of the Rome Statute makes clear that the court is mandated to apply its laws consistently with internationally recognized human rights standards. This is due to the fact that the

ICC is widely seen as a standard-setter.11 It is a court that was established with the aim of protecting

human rights. It is the only permanent international criminal court. It is wholly dependent on state funding and state consent. It is intended to pave the way towards a future where international criminal law is an accepted and natural part of legal discourse. It is in so many ways a benchmark, and as such it simply cannot be seen to accept anything less than the utmost echelons of respect for

10

Robinson “The Right to a Fair Trial in International Law” (2009) BJIL 5 11

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human rights – and this includes fair trial rights. Stapleton speaks clearly when she notes that fair trial rights were to be absolutely enforced at the International Criminal Tribunal for the Former

Yugoslavia (ICTY) for example, lest they be seen as a ‘token political gesture’.12 Finally, the unique

regime of complementarity, often called the cornerstone of the Rome Statute, makes little sense if the fair trial rights of the accused cannot be guaranteed at the ICC – why then move from an ineffective domestic system at all?

Indeed, as previously mentioned, there is a strong argument to suggest that fair trial rights are ius cogens in the realm of international law. For any principle to meet this standard implies absolute non-derogability. Stapleton argues that derogation from fair trial rights is impermissible and hence implies their ius cogens status, citing also the almost universal acceptance of their provision. At the very least, if not ius cogens, their importance is made clear. When tied into the above standard-bearing standard, it becomes clear how easily the legitimacy of the ICC as a whole is affected by infringements.

Safferling writes that: “A fair trial is the only means to do justice. If no fair trial can be held, the

object of the judicial processes is frustrated and the process must be stopped.”13

The ICC, in its approach to undue delay, is dancing narrowly on a precipice, the cliff of which falls straight into illegitimacy. As will be explained in the following section, this is in part due to the fact that the standard by which ‘undue delay’ has thus far been tested is arguably inappropriate to the specific criminal context of the ICC.

2.2 Applying ECtHR standards: square peg in a round hole and poor judicial

application

The right to a trial without undue delay is guaranteed by the statutes of the various international courts – International Criminal Tribunal for Rwanda (ICTR) article 20(4), ICTY article 20(1), and ICC article 64(2). However, this is as far as explicit regulation extends. The international criminal courts have thus far applied a carbon copy of European Court of Human Rights (ECtHR) jurisprudence relating to the test for undue delay whenever accused have brought motions in this regard. The test for undue delay applied by the ECtHR entails five factors: i) the complexity of the case ii) the conduct of the authorities iii) conduct of the applicant iv) state of the proceedings v) what

12

ibid 542 13

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is at stake in the proceedings.14 No official time limit is set. For purposes of the ECtHR test, the period of time measured starts at the moment that the accused is ‘charged’ within the substantive meaning of that word for the court applying the test, and ends upon the date on which the proceedings are finally discontinued.

It is submitted that the ECtHR test, whilst sufficiently comprehensive in the ECtHR context, is not appropriate to the setting of the international criminal courts, and particularly not for the ICC. This is due to two reasons.

Firstly, the test is by its nature and origin not appropriate for an international criminal context. Logistically, the ECtHR functions like a court of appeal, and rules on the length of proceedings in domestic courts, whereas the ICC rules on its own proceedings. It could be argued that the Office of the Prosecutor (OTP) at the ICC is not comparable to the domestic authorities of any given country and cannot thus be measured with the same yardstick. In addition, the international criminal courts have consistently emphasized that the scale, scope and complexity of their cases is unprecedented. Yet, they apply a set of factors devised to deal with cases that cannot possibly be compared to this standard. It is not unreasonable to believe that abstract factors that have gained purchase by repeated testing in one context would not be suitable for another. This is in addition to the fact that the majority of the cases to which these factors are applied relate to civil claims, and hence do not relate in the same way to the rights of the accused. Furthermore, the ECtHR awards financial compensation for violations of the right to a speedy trial. The ICC has attempted to copy this, despite the stakes being so much higher, and hence financial compensation may not be said to be an adequate remedy

for years spent in detention. In the Barayagwiza15 case, the Appeals Chamber found that the

accused’s fair trial rights had been violated and decided that in the event of conviction, the sentence shall be reduced, and in the event of an acquittal, financial compensation shall be awarded. This is typical of ECtHR jurisprudence. However, the court has also declined to even offer financial compensation in some cases where the accused was eventually acquitted, illustrating a reluctance to

apply this remedy in the first place.16 Finally, and most tellingly, the length of trials that the ECtHR

have deemed overlong is the average length of many trials at the international criminal courts.

14

Cerin v. Croatia, no. 54727/00, 08/03/01 European Court of Human Rights

15_{Feidinand Nahimana Jean-Bosco Barayagwiza Hassann Geze v The Prosecutor (Trial Judgement) ICTR-99-52-T 3} December 2003

16_{Protais Zigiranyirazo v The Prosecutor Case (Decision On Protais Zigiranyirazo's Request To Appeal Trial Chamber} Ill's Decision Of 18 June 2012) ICTR-ol-73-a 26 February 2013

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Henzelin and Rordorf in 2012 noted that trials around the 7 year mark are almost exclusively deemed

overlong by the ECtHR.17

Secondly, the courts have often and consistently erred in their application of these factors. Judge Shuhahabuddeen points out the court’s erroneous reasoning in the Mugenzira judgement, where a

claim of undue delay was brought by two of the co-accused.18 The court held that the size and

complexity of the case rebutted any argument of undue delay, despite the fact that the accused had additionally complained of the prosecutor’s conduct in bringing about said delay. The conduct of the prosecutor was thus not even examined. Shuhahabuddeen states as follows: “In my view, the majority should not have set out such a list…. the description of the factors as set out by the majority raises issues of interpretation of their precise scope-for example, who are the "relevant authorities"? What kind of "prejudice" is being referred to…indeed, these factors may be misleading.” Judge Procar added his own criticism of the judges’ application; he noted that they referred to the ‘gravity’ of the offences in addition to scope and size of the case. This implies that where a crime is severe enough, any delay may be justified. There is clearly no spectrum of gravity, a point on which the suspension of trial rights takes place, and to assert otherwise would be unprecedented in a court of law. The problems in the Mugenzira case as discussed above were taken to ridiculous extremes in the Gatete case. The accused had waited 7 years between his initial appearance and the commencement of his trial at the ICTR. The court again applied the same reasoning – that the case was simply too complex to do otherwise. This ignores a fundamental aspect of the ECtHR test in any case – that of what is at stake for the appellant, or in other words, what he stands to lose by virtue of the extended period of uncertainty regarding his fate. Additionally, the ECtHR has made clear that the complexity

of the case on its own cannot justify the length of proceedings.19 Yet this is what the ICC has done

on several occasions. Take another example – the Renzaho judgement, in which the Appeals Chamber held that “The Appeals Chamber underscores that lengthy delays can give rise to serious questions regarding fairness to the accused. However, in view of the complexity of this case, including the number of charges and the volume of evidence produced by the Parties, Renzaho has not demonstrated that the delivery of the Trial Judgement was unduly delayed” – again, referring only to the complexity of the case due to the fact that accused had not specifically referred to the

17

Marc Henzelin & Heloise Rordorf “When Does the Length of Criminal Proceedings Become Unreasonable According to the European Court of Human Rights?” NJECL 5 (2014) 89

18

Justin Mugenzi & Prosper Mugiraneza v The Prosecutor (Appeal Judgement) ICTR-99-50-A, International Criminal Tribunal for Rwanda (ICTR) 4 February 2013 6

19

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conduct of the authorities. This, despite the fact that the Appeals Chamber itself notes that it is

‘worrying’ that the judgement took a year and a half to write.20

Given the above, it is quite clear that the courts may reasonably be accused of applying an inappropriate yardstick, and in the alternative, applying the yardstick itself inappropriately. In the following section I present the knock-on effect of overlong trials, and how this consequence should be used as an interpretive tool in an alternative approach to assessing when a trial is unduly delayed, or in other words, when a trial is so long as to affect the fair trial rights of the accused other than the right to a speedy trial, which has been disregarded in the face of more obvious fair trial rights, and thereby endangering the legitimacy of the ICC.

2.3 The knock-on effect: overlong trials infringe other fair trial and human rights

This section may be essentially summarized by the following: firstly, evidence becomes compromised over time, and gives rise to substantive infringements of the accused’s ability to conduct his trial fairly in addition to several human rights violations. Secondly, the moral implications of detaining a human being for extended periods of time relate to a multiplicity of human rights issues, the overarching one being the obvious problem associated with keeping a person presumed to be innocent out of normal society and life.

It should be noted that different rights infringements arise at the levels of pre-trial detention and trial proceedings, and that taken cumulatively they create the potential for a bundle of infringements on the suggested alternative human rights normative approach.

Authors such as Robinson held early on in the ICTY’s existence that the average waiting time was

one and a half years, and that even three would not be unduly long in the context of the ICTY.21

These statements were made before the Milosevic case, which brought to the public attention exactly how slowly trials were progressing. More recently, the average time spent in pre-trial at the ICC is around five years. Some of the longest cases at the ICTR stretch in excess of 10 years in their

totality.22 Perhaps the most egregious example of this is the case of Gatete, wherein the accused was

detained for more than 2400 days – and the prosecution case lasted only 13.23 Even then, the Trial

Chamber held the delay to not have been undue, despite referring explicitly to the unjustifiable

20

Tharcisse Renzaho v. The Prosecutor (Appeals Judgement). ICTR-97-31-A, 1 April 2011 para 241 21

P Robinson “Ensuring Fair and Expeditious Trials at the ICTY” EJIL 11 (2000) 585 22

See: Gatete, Nyiramasuhuko 23

Jean-Baptiste Gatete v The Prosecutor (Appeal Judgement) ICTR-00-61-A, International Criminal Tribunal for Rwanda (ICTR) 9 October 2012 14

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conduct of the Prosecution in bringing about the delay.24 The accused finally had his life sentence reduced to 40 years for the infraction.

It is with reference to these cases that the following argument is made, with the assumption that due to the trial lengths of the ICC coming narrowly close to this standard on a regular basis, the ICC may soon run into similar total times, in addition to the problems it has already encountered as enumerated below.

Firstly, evidence becomes compromised. There is a demonstrative risk of crucial evidence and potential investigative sites being destroyed in a war zone. These problems are further compounded by witnesses dying whilst accused await trial. The ICTR in particular was highly concerned by this

phenomenon.25 This happened, for example, in the Renzaho26 judgement, although the Appeals

Chamber eventually held that the accused had not pleaded with sufficient specificity how the absence of the deceased witnesses would prejudice his case. In addition, the fallibility of human memory has been conclusively proved, especially when trying to recall events that happened during severe stress

or trauma, as is normal in conditions of war or crimes against humanity.27

A witness dying also leads to an infringement on the right of the accused to cross-examine the witness, and will in some cases lead to the courts accepting hearsay evidence to fill the gap. Even where the court does dismiss hearsay evidence on this basis, there is no clear and consistent rule, and the evidence of abuse thus still exists in this free system, especially considering the political pressure to convict and the human fallibility of judges. Regardless, where this evidence is tendered, it often

leads to a multiplicity of appeals and disputes in order to resolve the matters.28 Often, Appeals

Chambers are tasked with nitpicking sheaves of documents in order to exclude two or three pages.29

In addition, the right to be presumed innocent suffers. Awaiting trial for an excess of years raises the risk of an adverse inference being drawn in terms of this right. This right is guaranteed by virtually

all of the international criminal court statutes.30

24

ibid 25

Anonymous “ICTR Worried over Aging and Dying Witnesses” (Rwanda News Agency 2 October 2009) available at <http://www.rnanews.com/politics/2071-ictr-worried-over-aging-and-dying-witnesses> last accessed on 15 July 2017 26

Tharcisse Renzaho v. The Prosecutor (Appeals Judgement). ICTR-97-31-A, 1 April 2011 27

Combs Fact Finding Without Facts (2010) p 51 28

The Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj (Decision on Admission into Evidence of Documents Tendered During Testimony of Witness 69) IT-04-84-T, 28 November 2007

29

The Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj (Decision on Admission into Evidence of Documents Tendered During Testimony of Bislim Zyrapi) IT-04-84-T, 28 November 2007

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Although incidents of one or the other are not the rule, taken cumulatively these infringements are too common to ignore.

Secondly, due to being severed from society, their life, and their family, the accused stands a reasonable chance of his rights to family life and human dignity being infringed should they be detained for unreasonable periods of time. This was the case in for example, the Nahimana judgement, wherein the accused in detention had to bring an urgent claim to court, his family having travelled to his place of detention and eventually being forced to leave after 45 days having not been

able to see or make contact with him.31 This is a potential violation of the accused’s right to family

life, and a potential secondary violation of the family’s right to have their family member support them. Furthermore, the detainee’s family may fall into poverty without financial support from their breadwinner. It is not unreasonable to expect this to be a common occurrence, especially amongst accused coming from situations of strife. The ICC has recognized this danger by, for example, noting the positive obligation incumbent upon it to fund family visits. The subject of family rights has been

canvassed extensively by Abels32 and it is not possible to elaborate further on it in this section.

Under art 60 of the Rome Statute, a detained person may apply for interim release. However, release is only granted subject to stringent conditions as listed in art 58, relating to the potential of the accused to commit further crimes or become a flight-risk. In view of the fact that most, if not all of the accused at the ICC, are war criminals or the like, it is unlikely that release will often be the case.

Overlong trials thus become a multi-layered system of potential infringements. This is largely because the system of free proof engenders uncertainty. Investigators and prosecutors have no set standards by which they can expect a judge or court to evaluate a certain piece of evidence. Furthermore, most everything is admissible. Under these circumstances, there is little incentive to procure the best evidence available. It makes more sense for legal counsel to gather everything possible, (this problem being compounded by how incredibly difficult gathering evidences in war zones already is) and to submit it and hope for the best, as no prejudice seemingly arises.

Hence; the answer to the question “when is an international criminal trial unduly delayed for purposes of art 67(c) of the Rome Statute” may be answered thusly: when it is so long as to infringe

31

Hassan Ngeze, “Urgent Motion Requesting permission to have phone calls from my family and visits including my children” Transmission Sheet for Filing of Documents to Court Management System, ICTR, available at <http://jrad.unmict.org/webdrawer/webdrawer.dll/webdrawer/rec/238105/view/> last accessed on 16 July 2017

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D Abels Prisoners Of The International Community: The Legal Position Of Persons Detained At International

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substantially and cumulatively on so-called ‘substantive’ fair trial and human rights such as the right to be presumed innocent, the right to cross-examine witnesses (in the former category) and the right to family life and human dignity (in the latter category). With regards to the potentially ius cogens nature of fair trial rights and their historical bearing on legitimacy, it could thus be argued that cumulative, wide-spread violations that arise from overlong trials, that affect the pre-trial and trial rights of the accused, IN ADDITION to the multiplicity of logistical, financial and social problems that they engender, have the potential to derail the international criminal justice project should the process remain unreformed.

3. The system of ‘free proof’ and judicial control; development and current

practice

3.1 The historical linking thread

At this stage it would be prudent to note the development of the practice of international criminal law tribunals and courts in the realm of evidence and judicial control. This development demonstrates a continuous thread running from the IMT to the ICC in terms of two themes: practical difficulty in investigation giving rise to certain systems of procedure, and problematic clashes between legal cultures. It is submitted that the conditions that brought about the specific regime of evidence at the inception of international criminal law have diminished in their intensity with regards to the point we are now: a permanent international criminal court with the benefit of hindsight, based on reciprocity and being possessed of a legitimate and collective ius puniendi. In theory at least, it is capable of gathering better evidence under less pressure.

The main business of the IMT took approximately a year to complete. It was an unprecedented trial. Never had the leaders of one sovereign nation put the leaders of another on trial for heinous crimes in a formal criminal process. It was a largely ad hoc process, the contours of which were being designed as they were being implemented. The regime thus eventually became, arguably due to

necessity, one of liberal free proof – admissibility was presumed and exclusion was the exception.33

There simply was no time to introduce calculated technicalities and there was a pressing lack of reliable evidence, complicated further by the self-evident risk of perjury and conflicting narratives on

the part of witnesses from the losing side.34 What’s more, the proceedings were largely adversarial

33

Article 19, United Nations, Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis ("London Agreement"), 8 August 1945

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but incorporated inquisitorial methods of presenting evidence, a method that was highly criticized for the prima facie incompatibility of the two disparate systems. The judges at Nuremberg however, were well aware of the controversy that this system generated and the problems of due process that it

presented, in addition to allegations of victor’s justice.35

As is well-known, the following four decades proved a period of inactivity for international criminal justice which was only ended by the formation of the ICTY during the Balkan conflicts of the early 90’s, following the collapse of the Soviet Union. The ICTY, in contrast to the judges at Nuremberg, have emphasized and reemphasized their own primacy time and again. It not only adopted the system of free proof, but strengthened adherence to it. Again, as an ad hoc court formed during the most intense period of violence of an armed conflict, and tasked with gathering evidence and trying active participants, quality evidence was scarce, witnesses highly reluctant to testify for fear of retaliation, the risk of perjury exceptionally high, and proceedings again started and continued on an ad hoc basis. The single biggest difference is the ICTY’s initial strict preference for vive voce evidence. Its rules and procedures, written by the judges themselves (who of course, retained ultimate discretion with regards to evidentiary matters, among other things) are widely seen as a code for international

criminal procedure.36 Around the same time, the ICTR was established, with the two courts sharing

almost identical procedural codes. Indeed, the judges of both met annually and a shared purpose was

expressly stated, in addition to their origins in common documents and travaux prepatoire.37

Notably, issues of trial length arose reasonably quickly at both the ICTY and the ICTR. This is

reflected in both mainstream media criticism,38 official concern by the UN, and requests for funding

and reports expressly stating this concern from the courts themselves.39 It had taken the ICTY five

years to deliver two judgments. Self-evidently, the rules and procedures of the ICTY were young, largely untested and an amalgamation of different legal cultures, superimposed over ostensibly adversarial proceedings. Tellingly, much of the criticism of both the ICTY and ICTR focused on their adversarial bents.

35_{EJ Wallach “The Procedural and Evidentiary Rules of the Post World War II War Crimes Tribunals: Did They Provide} an Outline for International Legal Procedure?” CJTL 37 (1998) 860

36_{R May & M Wierda “Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha” CJTL} 37 (1998) p 735

37

TYN Wilson “Procedural Developments at the International Criminal Tribunal for Rwanda” LPICT 10 (2010) 2011 351 366

38

Anonymous “Justice on Trial at the ICTY” The Economist 26 February 2004 available at <http://www.economist.com/node/2460574> last accessed on 10 July 2017

39

ICTR “Report Of The International Criminal Tribunal (ICTR)” (1st Annual Report 1996) accessible at <http://unictr.unmict.org/sites/unictr.org/files/legal-library/960924-annual-report-en.pdf> last accessed 10 July 2017

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In response, the ICTY did implement several substantive rules related to the admissibility of evidence in order to expedite trials. The reliance on vive voce witness testimony was lessened and rules introduced allowing for documentary evidence to be submitted. Judges were encouraged to act

as ‘managers’.40 As Klamberg notes: “the length of the trials of the ICTY has made it impossible to

rely purely on live evidence.”41 In addition, the position of pre-trial judge was established. These

reforms proved ineffective.42 An empirical assessment by legal scholars at Yale University revealed

that the procedures had actually lengthened cumulatively under the reforms.43 They attributed this to

the failure of the reforms to reduce the number of incidents, to reduce the number of witnesses giving live testimony, and the number of appeals entertained by the appeals chamber. As will be illustrated later, there is a causal link between the free system and these issues. In addition, judges made limited or deficient use of their new powers as ‘managers’ and continued making ‘inefficient or unfair’ decisions. Whilst the details of ICTY reforms, and their failures or successes, are beyond the scope of this thesis, it does remain clear that, quite reasonably, there were severe operational and logistical problems associated with the model of international criminal procedure as it has been and to an extent today is practiced, and indicates prima facie that trusting in the infallibility of judges is perhaps slightly wishful.

This is clear from the focus of this thesis; the ICC. As early as 2003, a mere year after its formal coming-into-operation, an informal expert group was tasked with evaluating its processes and systems in order to learn from the experience of the ICTY and ICTR, and attempt to shorten the length of trials. They concluded that “in the experiences of the Tribunals, especially at the initial phase of their functioning, certain procedures have proved to be particularly lengthy and cumbersome: long investigations, extensive amendments of the charges after confirmation of the indictment, a large number of preliminary and pre-trial motions, disclosure issues, questions of exclusion of evidence notwithstanding a generally liberal regime based on a presumption that evidence should rather be weighed at trial than tested for admissibility, and long trials with extensive indictments and evidence. One basic reason underlying all this, and thus the delays, has been uncertainty as to how the procedural regime should operate” (emphasis added). The report thus reflects the concerns of the time – and yet the ICC has yet to implement any kind of meaningful reforms, despite the incredible similarity between its regime and that of its spiritual and practical

40_{M Langer & JW Doherty “Managerial Judging Goes International, But Its Promise Remains Unfulfilled: An Empirical} Assessment of the ICTY Reforms” YJIL 36 (2011) 241

41

Klamberg Evidence in International Criminal Trials 366 42

ibid 43

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forbear, the ICTY. Indeed, the main differences between the ICTY and the ICC have arguably

introduced further obstacles to expediency.44 The ICC stands as the current pinnacle of our

development, but has failed to adequately address the problems experienced by the first tribunals. Scholars like Fry and Combs note that the gathering of high-quality evidence is still a problem

however.45 A simple example is to be found in the case of Haradinaj,46in which three separate trial

extensions were ordered due to witness intimidation making crucial testimony difficult to obtain.47

These problems ultimately led to a retrial and eventually an acquittal.

Most notably for the purposes of this thesis, the ICC has retained the free system of evidence (albeit with some notable limitations) in order to deal with this problem, and has allowed the judges free reign again with regards to the structure of the trial. The informal expert paper recommends that “the judges should thoroughly control the presentation of evidence in order to avoid redundant or repetitive evidence. If the Chamber or a judge considers that an excessive number of witnesses are going to be called to prove the same facts, the party may be called upon to shorten the estimated

length of the examination for particular witnesses, or reduce the number of witnesses.“48 The

repeated aspiration of judicial managers is admirable, but ultimately flawed, as demonstrated empirically by the Yale study. Having tried this system for near on three decades, one is forced to question the wisdom in not lessening judicial control, if only tentatively as an experiment. As borne out by the Yale study, this would take the form of shifting managerial functions from trial to pre-trial, and introducing practice directives for that stage in sifting through evidence. These suggestions will be elaborated on in a later section.

What this section demonstrates is that the model of international criminal justice has retained its original spirit, no matter how flawed it might be, and resisted meaningful reform, for better or worse. What is concerning is that by no means can the ICC be said to function under the same circumstances as the Nuremberg trials or the ICTY. Although difficulties regarding the collection of

44

From the informal expert report: “Various differences that exist between the procedural law of the two Tribunals and the ICC may well affect the length of the proceedings before the ICC. Amongst those differences are, in particular, the extensive procedural rights to challenge the admissibility of the proceedings under the complementarity principle (Articles 17 to 19), the scope of investigation (Article 54(1)) and the confirmation hearing (Article 61), the participation of victims at the various stages of the proceedings (Article 68(3)), and the need to provide for reparation proceedings (Article 75)”

45

Elinor Fry “The Nature of International Crimes and Evidentiary Challenges” in Elias van Sliedregt & Sergey Vasiliev (eds) Pluralism in International Criminal Law Oxford University Press (2014)

46

The Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj (Public Judgment with Confidential Annex) IT-04-84bis-T, 29 November 2012

47

48

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evidence and credible witnesses, political meddling, and logistical troubles such as translation remain, the ICC is not ad hoc. It is the result of extensive negotiation and drafting over several years. And yet it remains uncertain, to an extent unstructured, and largely unregulated at trial.

I turn now to a concise analysis of current evidentiary practice as it stands, derived mainly from the standard-bearing courts of the ICTY (though it has recently concluded) and the ICC.

3.2 Overview of current practice

What should be clear from the above is that the evidentiary regime of international criminal procedure, both historically and today, is largely unregulated and its efficacy (or lack of) remains in the hands of the judges who take its reins. It is largely and worryingly up to the persons who people its benches and halls – people who have vastly differing ideas of what criminal procedure is, or is supposed to be. It remains a system of free proof, with clear preferences, though limited in a few minor ways by the Rome Statute.

It should be noted in addition that when this thesis speaks of the ‘free’ system of evidence it refers both to a technical system and the pervasive discretion granted to judges to regulate these affairs and the structure of proceedings.

There is no separate body of evidentiary rules in international criminal procedure. In addition, judges are entrusted with structuring proceedings as they see fit, and are empowered to make orders to this effect with very little concrete checks on this power. This allows judges to admit almost any evidence but without the benefit of a dossier of completed facts before them, as is done in the

inquisitorial system. Furthermore, the ICTY has explicitly held in the Aleksovski49 decision that Trial

Chambers are not under any obligation to follow the decisions of one another. Hence, there is no system of precedent upon which judges can build, or at least, not one that cannot be easily torn down at a whim.

This state of affairs is especially lamentable given the arguably contradictory stated aims of international criminal law and the vast, seemingly insurmountable amounts of evidence that these

often produce.50 Fry puts it delicately: “…some objectives of international criminal justice, the

49

Prosecutor v. Zlatko Aleksovski (Appeal Judgement), IT-95-14/1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 24 March 2000

50

With reference to the aims of both convicting international criminals, providing victims with reparations and the didactic function of the ICC in particular.

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typical features of international crimes, and doctrines of individual criminal responsibility lead to an

increase in the amount of information relevant for a specific case.”51 It would be fundamentally

simplifying the problem to assert that quantity is the only contributing factor to overlong trials. However, it is not far from the truth. The amount of evidence tendered on a regular basis at international criminal trials is staggering. Fry continues: “Given the poor quality of the available evidence, an increase in the amount of information and evidence that potentially comes under consideration by the court is inevitable. Scale and quantity are more than bare numbers; problems lie in quantity itself” (emphasis added).52

It is submitted that the current practice of international criminal courts does very little to address the problem, if not actively contributes to it.

In addition to the overabundance of evidence, Murphy highlights another particularly worrying trend at the ICTY, one that is a key part of the argument of this thesis and that has bled over into the ICC: the free system does not give sufficient regard to authentication. Judges simply evaluate evidence at the end of proceedings if it is not disputed immediately. Murphy notes that this engenders “a

sometimes alarming failure to comprehend the basic principles of reliability and safety”.53 It will be

seen later in the analysis of the Lubanga case what exactly the effect of this has been on the court’s ability to legitimately convict accused persons.

Hence, on the assumption that vast quantities of information and evidence slow proceedings and that authenticity and reliability are not sufficiently tested, we must necessarily analyze how international criminal procedure has handled this specific issue, that is to say, competently receiving, processing and disposing of vast quantities of evidence and information. A quote from the famed Antonio Cassesse at the inception of the ICTY may accurately summarize the initial position of the court: “All relevant evidence may be admitted at this Tribunal unless its probative value is substantially outweighed by the need to ensure a fair and expeditious trial.” The expressed intent is noble - in practice this has not played out exactly along those lines. It would be prudent to first sketch a rough outline of the basic procedures especially pertinent to the argument of this thesis.

Although the Rome Statute and the ICTY Statute make provisions for categories of evidence, even going so far as to sub-divide, judges and courts have consistently indicated their aversion to

proscribing or itemization.54 Importantly, at the ICC, the structure of the proceedings has been

51

Fry “Nature of International Crimes and Evidentiary Challenges” p 115 52

ibid 53

Peter Murphy “Excluding Justice or Facilitating Justice? International Criminal Law Would Benefit From Rules of Evidence” IJEP 12 (2008) p 114

54

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largely left to the judges to regulate55 despite attempts at a more ‘codified’ statute, potentially in reaction to the judges of the ICTY and ICTR being left to determine the content of their own statutes. As Klamberg notes: “this makes the adoption of amendments of the ICC more cumbersome in comparison with the framework of the ad hoc tribunals. Cassesse describes this as a ‘reaction against the ICTY and ICT precedents, where the judges were, in a sense, both rule-makers and

decisions-makers.”56As Safferling notes, the intention of the RPE of the ICC is “rather unclear in this regard –

all options are permitted”, leaving open many questions as to contingencies and the desirability of an ad hoc process potentially being renewed every time a generation of judges retire or one judge simply has a different opinion. The only limitation in this regard is Rule 140, which gives the defendant the ultimate residual and unchecked right of questioning any witnesses presented, regardless of the order in which the evidence is presented or proceedings are regulated. Art 64(8)(b) could thus be said to be the enabler of the entire ‘free’ system at the ICC. This is in conjunction with articles 64(9), 69(4) of the Rome Statute and Rule 63(2) of its Rules and Procedures. In addition, international criminal courts such as the ICTY have been explicitly held to possess inherent power to

regulate the course of proceedings during trial phase.57

Evidence is gathered both by investigators of the court as part of the Office of the Prosecutor, and independent third parties, the latter of which may be NGO’s, privately contracted investigators, news media or any of a variety of other actors. Preference is obviously given to OTP evidence, but admitting evidence from other sources is common, due to the paucity of evidence available. It is highly important to note that the Prosecution bears the responsibility of gathering both incriminatory

and exculpatory evidence during the course of the investigations58, a task that the OTP has often

been charged with underperforming, as can be seen in paragraph 36 of the Kalimanzira appeals

judgement,59 and thus contributing to a deficiency in equality of arms. In addition, the ad hoc courts

have also been accused of extending fair trial rights to the Prosecution “despite the dictates of logic.”60 This often further extends the length of trials, and in the case of Oric, was used to justify

55

Art 64 (8)(b) Rome statute 56

Klamberg Evidence in International Criminal Trials p 74 57

ibid 58

Art 54(1)(a) of the Rome Statute

59_{“Kalimanzira submits that he had inadequate time and resources to prepare his defence when compared with the} preparation invested in the Prosecution case.Kalimanzira also contends that the Prosecution deployed a large team involving 35 different investigators which investigated him between 1999 and 2008. He contrasts this effort with the resources of the Defence, which he asserts was only able to deploy two investigators for about two and a half months of effective work from the conclusion of the first trial session on 22 May 2008 to the filing of the Defence Pre-Trial Brief in September 2008”

60

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limiting the time given to the Defence to present its case.61 The topic is beyond the scope of this thesis, but suffice to say that it is not unreasonable to deem this (arguably fair at times) trend as another example of the Courts’ overzealous capacity to convict despite infringing on the rights of the accused.

There is no pre-evaluation of evidence, or pre-selection, before the case goes to trial. That is to say, there is generally no ‘dossier’ of a collected body of evidence subject to minimal changes. There is a duty to disclose, but this hardly contributes to pragmatism in evidence selection. Subsequent to pre-trial, based on the adversarial model, parties are in control of presenting evidence. Judges do

however have discretion to order more evidence to be submitted.62

It should by now be clear that judges retain ultimate discretion and authority in relation to the admissibility of evidence. The Rome Statute makes this explicit in Rule 63, which authorizes judges to assess freely all evidence submitted “in order to determine its relevance or admissibility in accordance with art 69”. The Prosecutor in Lubanga made clear that they regard ICTY case law as illustrative with regards to the question of admissibility. However, it adds a further (arguably unnecessary) step to the “relevant and not prejudicial to trial rights of the accused” standard adopted by the ICTY. The three steps are as follows: i) evidence must be prima facie relevant to the trial – it should make the existence of a fact more or less probably to be relevant ii) whether the evidence has prima facie probative value, subject to ‘innumerable’ factors’, and indiciae of reliability related to considerations of ‘voluntary, truthful and trustworthy’ indications iii) the probative value must be weighed against its potentially prejudicial effect. This approach has been more or less consistently applied by the ICC in its limited number of judgements, initially in Lubanga and more recently in Katanga and Ngudjolo.63

The very first thing a legal practitioner would note about this approach is how strikingly broad it is. A common law lawyer would decry the lack of regulation. A lawyer from an inquisitorial background would question the wisdom of allowing judges free reign without the benefit of the ‘dossier’ approach. The three-prong test is not exhaustive, provides little in the way of conclusive guidelines, and uses wording that could be interpreted in any number of ways during assessment. Furthermore, and crucially for purposes of this paper, evidence is evaluated on a case-by-case basis as it is submitted; and then weighed as to its probative value, in totality, at the end of the presentation

61_{Prosecutor v. Naser Oric (Trial Judgment), IT-03-68-T, International Criminal Tribunal for the former Yugoslavia} (ICTY), 30 June 2006

62_{Klamberg Evidence in International Criminal Trials p 148} 63 ibid p 349

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of evidence during judicial deliberations. There is thus a clear distinction between the stages of ‘admissibility’ and ‘evaluation’. Furthermore, reliability at international criminal trials has been shown in case law to go to weight rather than admissibility – again, ensuring that many pieces of unreliable evidence are tested in court, wasting time – if the judges should hold them unreliable in the first place, creating double the risk and compounding the problem either which way.

It does not take a keen legal mind to realize that these provisions allow for almost any kind of evidence, including hearsay and circumstantial evidence. Indeed, the courts have welcomed this.

The risks of this approach are self-evident. The justification for it is flawed at best, as will be briefly described in the following section before the analysis of case law is presented.

4. The justification for the free system – a lack of substance

The system of free proof is defended by its proponents on two main grounds, one being expressly held by judges, and the other being an inference based on circumstance. As to the former; judges, professionally trained and competent, are capable of evaluating evidence without the need for rules of exclusion – with the qualification that rules of evidence were developed for jury trials specifically. As to the latter; it is self-evident that the evidence gathering process for an international crime is infinitely more complex and challenging than any proceedings at a domestic level, resulting in a dearth of quality, reliable evidence of high probative value – justifying the admission of every piece of evidence in the hope that in their totality it is possible to step back and gain a perspective of where they bisect and support one another, if at all.

The fullness of the problem of international criminal procedure being founded on uncertain

foundations is described by Combs in her highly important empirical research on the subject64 – it is

unnecessary and imprudent to canvass the entire subject in this essay. Suffice to say that a lack of good evidence by no means indicates that trials should continue regardless and that convictions should be made on the basis of insufficient evidence.

With regards to the first argument, of judges being professional trained, it is respectfully submitted

that this is misguided and hopeful reasoning. As Murphy and Baddour note,65 even the most

professional and capable of judges will become inundated when faced with the sheer volume of evidence routinely tendered in the context of international criminal law. It is not a problem that

64

Combs Fact Finding Without Facts (2010) 65

Murphy & Baddour “Evidence and the Selection of Judges: The Need for a Harmonized Approach” in Pluralism in

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afflicts only juries- indeed, the complexity and length of international criminal trials are unprecedented, as routinely invoked by judges of these courts in an effort to justify the free system – why then do we expect judges to be able to cope with this as if there is precedent? This problem is further compounded by the unavoidable fact that there is no general theory of judging at an

international criminal law level.66 Indeed, there are few, if any schools dedicated to training judges to

deal with international criminal procedure and its associated pitfalls and particularities.

There is an argument to be made, especially when faced with examples of scandals such as those of

Judge Haarhoff67 of the ICTY, that the accused in the modern context of ICL faces a similar problem

as those in England in the early 1800’s68 – that they are deemed so reprehensible (justifiable as this

may be or not) that they are not given sufficient opportunity to take part in proceedings fairly. Rules

of evidence developed in response precisely to this.69 The submission that rules of evidence were

developed exclusively to prevent lay jurors being prejudiced by inadmissible evidence – as if jurors are assumed to be ingrates as a rule – is patently false. Though certainly a major part of its origin, the reasoning is not so simple. Indeed, as described in the above paragraph, rules of exclusion were largely for the benefit of the accused. This is borne out by the fact that rules of exclusion, though watered down and certainly not nearly so strictly, are still applied in non-jury trials, both civil and

criminal, in common law jurisdictions like the USA and Britain.70 It is imperative to grasp that rules

of exclusion do not serve the interests of the jury primarily – they serve the interests of all persons

involved by preventing the abuse of state power.71 Murphy notes that they were introduced pursuant

to different policy considerations, that is to say, for practical and political purposes, not as a static or inflexible concept – they fulfill a need or solve a problem relating to the protection of the jury or the accused in the interests and pursuit of a fair trial: “The development of rules of evidence are not a systematic or concerted attempt at creating a body of law – rather they were developed piecemeal to

solve problems.”72

66

Jared Wessels “Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication” CJTL Law 44 (2005) 384

67

Marie Dhumieres “Judges Thrown of Yugoslavia War Crimes Tribunal For Criticising ‘Change of Direction’ in Verdicts” (The Independent, 24 September 2013) http://www.independent.co.uk/news/world/europe/judge-thrown-off-yugoslavia-war-crimes-tribunal-for-criticising-change-of-direction-in-verdicts-8837433.html last accessed on 4 July 2017

68

Peter Murphy “Excluding Justice or Facilitating Justice? International Criminal Law Would Benefit From Rules of Evidence” IJEP 12 (2008) 69 ibid 70 ibid 71 ibid 72 ibid

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Yet the main qualification, repeated ad nauseum by judges of all international criminal courts, is that judges of these courts applying the free system are ‘competent, professionally trained jurists’. And this is, of course, largely true. However, infallibility should not be assumed. Judges of international criminal trials are demonstrably more prone to mistakes of bias than those at domestic levels. Firstly, as has by now been stressed repeatedly, the sheer volume of evidence and information is

unprecedented. Trials transcripts have in the past run into an excess of 27 000 pages.73 Hundreds of

witnesses are heard. And almost all evidence is admitted, assigned an evidence number, and filed away for perusal at the end of proceedings. The same problems related above, with regards to the erosion of memory, are applicable to human judges. It is not unreasonable to assume that at the end of a three-year trial, some of the information may be misinterpreted, misremembered, or the ordinary failings of a human brain come to the fore in confusing what is important and what relates to what in which way.

Secondly, political pressure is immense. Within the arena of the international criminal trial, sovereign countries are often played off against one another. A former spokesperson for the ICTR,

Kingsley Moghalu, has described international criminal tribunals as pursuing “political justice”.74 As

Combs argues, there is an inherent ‘pro-conviction bias’ risk at international criminal courts, set up

as they are by political institutions with disparate and conflicting goals.75 These goals affect

decisions at an institutional level, from which suspects to apprehend to which judges are appointed.

Thirdly, the risk of perjury, fabrication and falsity is significantly higher at these trials. This is due both to logistical problems of translation and a lack of education amongst witnesses from less developed countries, as well as the inherently political, group-based war of narratives that results from any conflict in which international crimes generally occur. Combs avers that “careful judicial

scrutiny of testimonial deficiencies would lead to a substantial increase in acquittals.”76 She refers to

several ICTR cases in this regard. In fact, Combs asserts that virtually every ICTR and SCSL trial

“features some false testimony”.77

Fourthly, there is immense pressure on judges to produce convictions, and at a satisfactorily timeous rate. Combs notes that because acquittals are often viewed through a political lens by victims of

73

See: Prlic, Haradinaj, Nyiramasihuko 74

Combs Fact Finding Without Facts p 225 75_ibid

76

ibid p 229 77