1 Anaïs Sarron Student number: 12333859 Email: anais.sarron@student.uva.nl
GATHERING EVIDENCE AT THE INTERNATIONAL
CRIMINAL COURT
The impact of the cooperation regime on the human rights
of the accused
Master Track: International and Transnational Criminal Law Supervisor: Sergey Vasiliev
Date of submission: 14-08-2019
2 Abstract
This thesis aims to identify solutions that could better ensure the protection of the defendant’s human rights during the collection and admissibility of evidence at the International Criminal Court (ICC).
Since the collection of evidence is dependent on the Court’s cooperation regime, this thesis will examine how this regime works. There are four features of that regime that affect the ICC’s system of gathering of evidence: (i) the Court’s dependence on domestic legal systems to conduct investigations; (ii) the Prosecutor’s reliance on third parties and intermediaries to investigate; (iii) the protection of States’ sovereignty in the rules of disclosure of evidence; and (iv) the lack of harmonization of the rules of collection of evidence.
Evidence gathered within this cooperation regime is subsequently assessed before the Court and will either be admitted or excluded.
This thesis will discuss how this regime impacts the defendant’s human rights. The Statute recognizes a number of human rights. However, these can be violated because of the system of cooperation. Specifically, this thesis provides examples of violations and shows that no effective remedy to these violations appears to be afforded.
Despite the efforts of many authors, there is currently no viable solution to protect human rights at the ICC. This shows that the ideal of prosecuting international crimes pursuant to the highest standards of fairness will be difficult to accomplish.
3 TABLE OF CONTENTS
ABBREVIATIONS 5
CHAPTER 1: INTRODUCTION 6
1.1. Background and purpose of the study 6
1.2. Research question and sub-questions of the study 7
1.3. Methodology and structure of the study 8
CHAPTER 2: THE COOPERATION REGIME AT THE ICC: PRACTICAL
CONSEQUENCES FOR THE GATHERING OF EVIDENCE 9
2.1. Introduction 9
2.2. International cooperation between the Court and collectors of evidence 9 2.2.1. The Court’s dependence on domestic legal systems to conduct investigations 9 2.2.2. The Court’s reliance on third-parties and intermediaries 14 2.2.3. The protection of States’ sovereignty and confidentiality in the rules of disclosure
of evidence 15
2.2.4. The lack of harmonization of the rules of evidence collection 17
2.3. The legal framework for exclusion of evidence gathered as a consequence of State
cooperation 17
2.3.1. General admissibility rule at the ICC 17
2.3.2. Mandatory exclusion of evidence – Article 69(7) of the ICC Statute 19
2.4. Conclusion 21
CHAPTER 3: RISKS FOR THE HUMAN RIGHTS OF THE DEFENDANT CAUSED BY NECESSARY RELIANCE ON COOPERATION DURING THE GATHERING OF
EVIDENCE 22
3.1. Introduction 22
3.2. Human rights protection at the ICC 23
3.2.1. Human rights explicitly protected in the Statute 23
3.2.2. Other protected human rights 24
3.3. Examples of (potential) violations of human rights due to the cooperation regime of
the Court 27
3.3.1. Examples of (potential) violations of human rights at the stage of collection of
evidence 27
3.3.1.1. (Potential) Violations relating to the absence of State cooperation during the
investigation 28
3.3.1.2. (Potential) Violations relating to the reliance on third-parties and
intermediaries to collect evidence 31
3.3.1.3. (Potential) Violations relating to non-disclosure of evidence 31 3.3.1.4. (Potential) Violations relating to the absence of harmonization of rules of
evidence collection 33
3.3.2. The factual absence of remedy to human rights’ violations during the gathering of
4 3.3.2.1. The irrelevance of violations of domestic law in the assessment of
admissibility 36
3.3.2.2. The strict interpretation of what is “antithetical to and damaging to the
integrity of the proceedings” 37
3.3.2.3. The absence of rules on the moment when to assess the admissibility of
evidence 38
3.4. Assessment of the level of human rights protection and risks of human rights
violations before the ICC 39
3.5. Conclusion 40
CHAPTER 4: SOLUTIONS FOR THE EFFECTIVE PROTECTION OF THE
DEFENDANT’S RIGHTS 41
4.1. Introduction 41
4.2. Solutions to improve the protection of human rights during the collection of
evidence 41
4.2.1. Enhancing State cooperation during the investigation 41 4.2.2. Regulating the relations of the Court with third-parties and intermediaries 43 4.2.3. Securing the disclosure of evidence by the Prosecutor 44 4.2.4. Harmonizing the procedures for the collection of evidence 44
4.3. Solutions to provide an effective remedy for human rights violations at the
admissibility of evidence stage 45
4.3.1. Enhancing the threshold of human rights protection in practice 45 4.3.2. Ending the discretionary powers of judges to admit evidence 47 4.3.3. Finding a compromise between the facilitation of exclusion and the provision of an
effective remedy 48
4.4. Conclusion 49
CHAPTER 5: CONCLUSION 50
5 ABBREVIATIONS
Appeals Chamber AC
Assembly of States Parties ASP
Democratic Republic of Congo
European Convention on Human Rights
DRC ECHR European Court of Human Rights
European Union
ECtHR EU International Criminal Court
Kosovo Specialist Chambers
ICC KSC
Non-governmental Organisation NGO
Office of the Prosecutor OTP
Pre-Trial Chamber PTC
Rome Statute of the International Criminal Court ICCSt
Rules of Procedure and Evidence RPE
Trial Chamber TC
United Nations UN
United Nations Security Council
Vienna Convention on the Law of Treaties
UNSC VCLT
6 CHAPTER 1: INTRODUCTION
1.1. Background and purpose of the study
One of the key features of evidence gathering at the ICC is that the system is almost entirely dependent on State cooperation. As a result, it is very difficult for the Court to collect evidence. Suspects, witnesses and evidence can be located in several countries and the Court will need assistance from domestic systems to conduct efficient investigations. However, States can be reluctant to cooperate, either with the Prosecutor or the defendants.
Furthermore, third parties such as NGOs and UN bodies, as well as intermediaries, also play an important role in the collection of evidence for investigations. However, particularly in the case of intermediaries who serve as the link between the OTP and potential witnesses, the information collected may not always be reliable.
Due to the difficulty in gathering evidence, the OTP has resorted to making confidentiality agreements with evidence collectors that do not wish to disclose the information they provide. However, these confidentiality agreements may conflict with the statutory obligation of disclosure.
Even if cooperation is secured, the Court’s regime requires States to gather evidence in accordance with their own national procedures, which varies between legal systems. As a result, the Prosecutor may not be able to control the process of evidence collection in a given territory.
The ICC only has an active role during the admission of evidence, with the Rome Statute providing for a mechanism to exclude illicitly obtained evidence, as a means of protecting the rights of the defendant.1
In light of the challenges encountered during the collection of evidence, it is important to question whether the OTP’s objective of bringing cases to trial and prosecuting serious international crimes impairs the fairness of the proceedings. The Court has recently faced strong criticism in connection with its ability to investigate and convict. However, the “Court’s success
7 or failure cannot be measured just in terms of “bad guys” being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just (…) to the accused”.2 Consequently, it is
necessary to analyse whether the defendant’s human rights are guaranteed under the current cooperation regime.
The ICC’s cooperation regime causes a number of risks for the defendant’s human rights, and the Court’s system of exclusion of evidence fails to provide an effective remedy. This thesis will focus on the violations of fair-trial rights and privacy rights, which are particularly vulnerable during the process of gathering evidence.
These risks can be due to the fact that investigations can take a long time, because securing cooperation is difficult, which impacts the fairness of the proceedings. Moreover, States’ lack of cooperation in providing exculpatory evidence to the Prosecutor or the defence, also threatens the fair-trial rights of the defendant. Necessary reliance on unreliable third parties or intermediaries can affect the defendant’s right to prepare its case, especially if most evidence they collect is not disclosed to him, such as in Lubanga.3 State cooperation can also create
another problem: even if States do cooperate, they may gather evidence in accordance with different human rights standards than that applied by the Court. Lastly, when assessing the admissibility of evidence, Chambers are generally willing to admit illicitly gathered evidence.
1.2. Research question and sub-questions of the study
In light of the ICC’s reliance on state cooperation for the collection of evidence, this thesis will address the following question: during the collection of evidence, does the ICC’s cooperation regime compromise the human rights of the accused and if so, what solutions can be found to effectively protect these rights?
2 The Prosecutor v. Germain Katanga (Minority Opinion of Judge Christine Van den
Wyngaert), ICC 01/04-01/07-3436-AnxI, TC II (10 March 2014), para.310.
3 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the consequences of non-disclosure
of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008), ICC-01/04-01/06-1401, TC I (13 June 2008).
8 In order to answer to this main research query, three sub-questions will be examined: (i) how does the ICC’s cooperation regime work? (ii) which of the defendant’s human rights are endangered by this cooperation regime and can violations occur? (iii) are there solutions to better protect the defendant’s human rights during the gathering of evidence and if so, which ones?
This thesis will therefore analyse how the ICC’s cooperation system works, how the defendant’s human rights risk being violated because of this system, and whether there are any possible solutions to prevent those abuses, or to provide a suitable remedy.
1.3. Methodology and structure of the study
This thesis adopts a doctrinal classical method of research. This consists of an examination and interpretation of legal texts and doctrine.
The use of the word “cooperation” in this thesis refers to the legal sense of the term, meaning “cooperation in criminal matters”. Cooperation with respect to the arrest, transfer and surrender of persons or enforcement of sentences is outside the scope of this research, as the focus is on cooperation in the production of evidence and its consequences for a fair administration of justice. The expression “gathering evidence” is understood broadly: it includes all measures taken during an investigation in order to collect evidence (e.g. collection of documents, taking of testimony, on-site inspections, etc).
Regarding the structure of the study, this thesis will first provide an overview of the functioning of the ICC’s cooperation regime as well as its practical consequences for the collection and admissibility of evidence (chapter 2). Then, it will analyse the impact of this regime on the rights of the defendant (chapter 3) before examining possible solutions to ensure compliance with the protection of these rights (chapter 4). Finally, this thesis will conclude by answering the main research question (chapter 5).
9 CHAPTER 2: THE COOPERATION REGIME AT THE ICC: PRACTICAL
CONSEQUENCES FOR THE GATHERING OF EVIDENCE
2.1. Introduction
In order to identify how to protect human rights during the collection and admissibility of evidence at the ICC, it is necessary to understand how the ICC’s system of cooperation operates, since this regime influences the way evidence is collected and admitted at trial. The first section of this chapter will therefore examine the ICC’s regime of international cooperation during the collection of evidence (2.2). The collection of evidence mainly depends on States’ willingness to cooperate during an investigation (2.2.1), but third parties to the investigation, such as international organizations or NGOs, and intermediaries, also collect evidence for the Court (2.2.2). To secure cooperation from States and third-parties, disclosure of confidential documents collected can be postponed or limited (2.1.3). In most cases, evidence is collected according to different legal standards as there is no harmonisation of the rules of collection of evidence in ICC law (2.1.4).
The second section of this chapter will focus on the consequences of the ICC’s cooperation regime for the admissibility of evidence (2.3). At the ICC, judges are allowed to admit illicitly gathered evidence (2.3.1) even though the Statute provides for the mandatory exclusion of evidence in some situations (2.3.2).
2.2. International cooperation between the Court and collectors of evidence
2.2.1. The Court’s dependence on domestic legal systems to conduct investigations
Investigations at the ICC are directed by the Prosecutor, who has the power to gather the relevant evidence “in order to establish the truth”.4 In principle, her role is to “investigate
incriminating and exonerating circumstances equally”.5 Evidence can be located in many
different States, and unlike domestic legal systems, the ICC cannot rely on a police force to
4 ICCSt, Art.54(1)(a). 5 ICCSt, Art.54(1)(a).
10 conduct investigations. Therefore, in order to pursue its mandate, the OTP has to rely on the willingness of States to cooperate with it.
According to the principle of pacta sunt servanda, States Parties to a treaty are bound by it and must perform it in good faith.6 This principle is recalled within the Rome Statute. States Parties
are required to cooperate in the investigation of crimes within the jurisdiction of the ICC,7 and
ensure that “there are procedures available under their national law” enabling them to do so.8
For the purposes of the investigation, the Prosecutor can “seek the cooperation of any State or intergovernmental organization”.9 On-site investigations conducted by the Prosecution and
without the authorities from the requested State are limited to non-compulsory measures (e.g. taking of evidence from a person on a voluntary basis, and examining public sites or spaces without modification).10 States not party to the Statute may cooperate but they have no duty to
do so, unless they accepted the Court’s jurisdiction on an ad hoc basis,11 or if they have entered
into an agreement with it.12
In theory, States Parties are obliged to comply with requests for assistance from the Court, 13
however these requests are executed in accordance with their own domestic procedures.14
Precise forms of cooperation, specifically related to the gathering of evidence for the purposes of the investigation, are enumerated in Article 93 of the Rome Statute. Other types of assistance that have not been listed in the Statute can also be provided, unless they are prohibited by the law of the requested State.15
The Prosecutor can also enter into agreements with States, intergovernmental organizations or persons in order to enhance cooperation.16
6 VCLT, Art.26. 7 ICCSt, Art.86. 8 ICCSt, Art.88. 9 ICCSt, Art.54(3)(c). 10 ICCSt, Art.99(4). 11 ICCSt, Art.12(3). 12 ICCSt, Art.87(5). 13 ICCSt, Art.93. 14 ICCSt, Art.99. 15 ICCSt, Art.93(1)(l).
16 ICCSt, Art.54(3)(d); UN General Assembly, Report of the International Criminal Court for
11 Compared to systems of inter-state cooperation, there are fewer grounds for refusal to execute a request for assistance from the ICC.17 There are only two grounds for refusal: national
security18 and if the measure requested “is prohibited in the requested State on the basis of an
existing fundamental legal principle of general application”.19 In the latter case, “the requested
State shall promptly consult with the Court to try to resolve the matter”, but if it cannot be resolved, the request will be modified.20
In practice, however, not only can compliance with cooperation duties be postponed,21 but there
is also no enforcement system to ensure that States comply with their legal duty. In some cases, even non-compulsory measures can require consultations with the State in which the Prosecutor wishes to conduct an on-site investigation, and that State can impose certain prerequisites before authorizing access to its territory.22 Moreover, a number of States Parties even exclude
from their national legislation the operation of Article 99(4) allowing the Prosecutor to conduct non-compulsory measures alone.23 The PTC is granted the power under Article 57(3)(d) to
“authorize the Prosecutor to take investigative steps within the territory of a State Party without having secured the cooperation of that State” but only if it has determined that “the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation”. Furthermore, in practice, many States do not explicitly refuse to cooperate but simply claim that they were unable to locate the requested evidence.24
If States Parties fail to comply with requests for cooperation from the Court, the Court “may make a finding to that effect and refer the matter to the ASP or, where the Security Council
17 R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal
Law and Procedure, 3rd edn (Cambridge: Cambridge University Press, 2014), p.530. 18 ICCSt, Art.93(4).
19 ICCSt, Art.93(3). 20 ICCSt, Art.93(3).
21 ICCSt, Art.94 (Postponement of execution of a request in respect of ongoing investigation or
prosecution) and 95 (Postponement of execution of a request in respect of an admissibility challenge).
22 ICCSt, Art.99(4)(b).
23 R. Rastan, “Testing Co-operation: the International Criminal Court and National Authorities”
(2008) [Volume 21 (Issue 2)], Leiden Journal of International Law [p.431-456], p.437.
24 H. Fujiwara, S. Parmentier, “Investigations”, in L. Reydams, J. Wouters and C. Ryngaert,
12 referred the matter to the Court, to the Security Council”.25 Other than these forms of political
pressure, the ICC has no coercive powers to enforce its requests for assistance.26 During the
drafting of the Statute, no international enforcement agency was created because States wished to retain their sovereignty.27 Unlike the ad hoc tribunals, whose powers were granted by the
Security Council, the ICC treaty-based system does not have any coercive capability.28
The Court has referred a number of States Parties to the ASP and the UNSC: Malawi,29Chad,30
the DRC,31 Uganda,32 Djibouti,33 Kenya,34 South Africa,35 and Jordan.36 The decision regarding
25 ICCSt, Art.87(7).
26 G. Sluiter, “Enforcing Cooperation: Did the Drafters Approach it the Wrong Way?” (2018),
[Volume 16 (Issue 2)], Journal of International Criminal Justice, [p.383-402].
27 R. Cryer, “Means of gathering evidence and arresting suspects in situation of state’s failure
to cooperate”, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009), p.201.
28 G. Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations
of States (Antwerp, Oxford and New York: Intersentia, 2012), p.111, 344.
29 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Corrigendum to the Decision Pursuant to
Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir), ICC-02/05-01/09-139-Corr, PTC I (13 December 2011).
30 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the non-compliance of the
Republic of Chad with the cooperation requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Al-Bashir), ICC-02/05-01/09-151, PTC II (26 March 2013).
31 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Cooperation of the
Democratic Republic of the Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the Court), ICC-02/05-01/09-195, PTC II (9 April 2014).
32 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the non-compliance by the
Republic of Uganda with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute), ICC-02/05-01/09-267, PTC II (11 July 2016).
33 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the non-compliance by the
Republic of Djibouti with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute), ICC-02/05-01/09-266, PTC II (11 July 2016).
34 The Prosecutor v. Uhuru Muigai Kenyatta (Second decision on Prosecution’s application for
a finding of non-compliance under Article 87(7) of the Statute), ICC-01/09-02/11-1037, TCV (19 September 2016).
35 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision under article 87(7) of the Rome
Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir), ICC-02/05-01/09-302, PTC II (6 July 2017).
36 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision under article 87(7) of the Rome
Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir), ICC-02/05-01/09-309, 11, PTC II (11 December 2017).
13 Jordan was recently reversed.37 It has also referred to the UNSC two States not party to the
Statute, with respect to situations that had been referred to the Court by the UNSC itself: Sudan38 and Libya.39
With the exception of Kenya and Libya, all of these referrals relate to the refusal of States to cooperate in the arrest and surrender of former Sudanese President Omar Al-Bashir. The repeated referrals on this issue, and the fact that he was still not arrested, shows that the ICC is unable to enforce the legal commitment of States Parties to comply with requests for cooperation. Despite this manifest lack of cooperation, the ASP could only encourage non-compliant States to take measures to ensure that the ICC fulfils its mandate,40 but no effective
action was taken against recalcitrant States. Similarly, the UNSC issued a Presidential Statement merely urging States “to cooperate fully with the Court”.41
With regard to the Kenya referral on the issue of non-provision of evidence, the Court held that Kenya failed to comply with its obligations by refusing to produce records relating to Mr Uhuru Kenyatta and subsequently referred the matter to the ASP.42 This proved to be crucial, as the
charges against Mr Uhuru Kenyatta were withdrawn due to a lack of evidence.43 The case
against William Ruto and Joshua Sang was terminated for the same reason.44
The failure of States to cooperate, especially in the Kenya cases, shows that the ICC cannot prosecute effectively without States’ cooperation. This lack of cooperation is not only a
37 The Prosecutor v. Omar Hassan Ahmad Bashir (Judgment in the Jordan Referral re
Al-Bashir Appeal), ICC-02/05-01/09-397-Corr, AC (6 May 2019).
38 The Prosecutor v. Omar Hassan Ahmad Al-Bashir (Decision on the Prosecutor’s Request for
a Finding of Non-Compliance Against the Republic of the Sudan), ICC-02/05-01/09-227, PTC II (9 March 2015).
39 The Prosecutor v. Saif Al-Islam Gaddafi (Decision on the non-compliance by Libya with
requests for cooperation by the Court and referring the matter to the United Nations Security Council), ICC-01/11-01/11-577, PTC I (10 December 2014).
40 ICC ASP 16th Session, Report of the Bureau on non-cooperation, ICC-ASP/16/36 (4
December 2017).
41 UN Security Council, Statement by the President of the Security Council, S/PRST/2008/21
(16 June 2008).
42 Kenyatta Decision under Art.87(7), supra note 34.
43 The Prosecutor v. Uhuru Muigai Kenyatta (Decision on the withdrawal of charges against
Mr Kenyatta), ICC-01/09-02/11-1005, TC V (13 March 2015).
44 The Prosecutor v. William Samoei Ruto and Joshua Arap Sang (Public redacted version of
Defence Applications for Judgements of Acquittal), ICC-01/09-01/11-2027, TC V (5 April 2016).
14 problem for the OTP, but also for the defence, which has the right to conduct its own investigations in order to prepare its case.45 Whilst the Prosecutor is expected to investigate
exonerating circumstances, her potentially biased view requires the defence to make good use of this right and gather its own evidence.46
However, since the defence is not considered to be an organ of the Court, there is no formal duty for States Parties to cooperate with it during the collection of evidence.47 Nonetheless,
defence counsel and their assistants still enjoy immunities on the territory of States parties to the Agreement on Privileges and Immunities of the Court, enabling them to conduct on-site investigations.48 Moreover, the defendant can request the PTC to issue a request for cooperation
in order to assist in the preparation of their defence.49
In addition to the dependence on State cooperation, the ICC is also reliant on third-parties to the investigation and intermediaries.
2.2.2. The Court’s reliance on third-parties and intermediaries
The Court often relies on third parties to carry out investigative measures, such as UN entities or other international organizations, and NGOs. While national authorities can be reluctant to cooperate, these third parties are more willing to do so. Therefore, the OTP has relied on them a number of times.50 In Lubanga, evidence collected by international organizations and NGOs
45 ICCSt, Art.67(1)(b).
46 S. Kay and B. Swart, “The Role of the Defence”, in A. Cassese, P. Gaeta and J. RWD Jones,
The Rome Statute of the International Criminal Court: a Commentary, Volume II (Oxford: Oxford University Press, 2002), p.1425-1426.
47 ICCSt, Art.34.
48 Agreement on the Privileges and Immunities of the International Criminal Court, Article 18. 49 ICCSt, Art.57(3)(b); ICC RPE, Rule 116; The Prosecutor v. Abdallah Banda Abakaer
Nourain and Saleh Mohammed Jerbo Jamus (Decision on “Defence Application pursuant to articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of the Sudan”), ICC-02/05-03/09-169, TC IV (1 July 2011).
50 E.A. Baylis, “Outsourcing Investigations” (2009) [Volume 14], UCLA Journal of
15 constituted more than half of the total information provided to the TC.51 This heavy reliance on
third parties continued in Katanga52 and during the investigations in Darfur.53
The OTP’s reliance on evidence collected by third parties increases the burden on the defence, since they have limited resources to verify and challenge evidence that may be unreliable or fabricated. Reports from international organizations and NGOs can indeed contain anonymous hearsay or otherwise untrustworthy information.
The ICC has also relied on external intermediaries to conduct investigations on site. These intermediaries are useful because they can identify witnesses, especially in geographic areas where security issues exist.54 However, this reliance was criticized following the Lubanga case,
where a number of intermediaries were found to have encouraged witnesses to provide false information to the OTP. For example, intermediary P-014 was suspected to have “persuaded, encouraged, or assisted witnesses to give false evidence”.55
The ICC’s cooperation regime does not only oblige the OTP to rely on States and third-parties for the collection of evidence, but also requires it to consider the confidentiality of documents during the disclosure of evidence.
2.2.3. The protection of States’ sovereignty and confidentiality in the rules of disclosure of evidence
Among other reasons for States’ lack of cooperation, some States fear that the disclosure of confidential documents might reveal intelligence practices or suggest their involvement or
51 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-T-109-FRA WT 27-02009
1-54 SZ T, Trial Chamber I Transcript (27 January 2009), p.8.
52 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on Article
54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence’s Preparation for the Confirmation Hearing), ICC-01/04-01/07-621, PTC I (20 June 2008), paras.54-64.
53 ICC Office of the Prosecutor, Report on the Activities Performed During the First Three
Years (June 2003-June 2006), 12 September 2006, para.39.
54 G. Mettraux, S.A. Fisher, D. Groome, A. Whiting, G. McIntyre, J. De Hemptinne, G. Sluiter,
Expert Initiative on Promoting Effectiveness at the International Criminal Court, With the Support of University of Amsterdam, December 2014, p.59.
55 The Prosecutor v. Thomas Lubanga Dyilo (Judgement pursuant to Article 74 of the Statute),
16 support of a particular side of a conflict. However, exceptions to the obligations of disclosure are allowed within the ICC legal system.
At the ICC, the Prosecutor and the defence must disclose evidence and allow the other party to inspect the material they have in their possession before the confirmation hearing.56 These same
obligations also apply at the trial stage.57 The TC is empowered to order disclosure of all new
evidence that was previously undisclosed.58
The Rome Statute mandates disclosure of all evidence that “shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”.59 This includes any material useful to the preparation of a
defence, even if not “directly linked to exonerating or incriminating evidence”.60
That said, the Statute allows the Prosecutor to not disclose documents that she obtained on the conditions of confidentiality and for the purpose of generating new evidence.61 This is another
example of the States Parties’ determination to maintain their sovereignty. Although this provision is meant to secure State cooperation, it can conflict with the obligation of disclosure. In that situation, the Prosecutor can (but is not required to) request a hearing on an ex parte basis with the Chamber, in order to obtain a ruling on disclosure or maintenance of confidentiality.62 However, nothing in the Statute or the RPE provides guidance on how to
resolve the conflict between mandatory disclosure and confidentiality.63
The previous discussion shows that whether evidence can be collected and provided to the Court in the first place and whether it can be disclosed to the defendant depends on States. Next,
56 ICCSt, Art.61(3); ICC RPE, Rules 121(3), 77-78. 57 ICC RPE, Rules 76-79.
58 ICCSt, Art.64(3)(c), ICC RPE, Rule 84. 59 ICCSt, Art.67(2).
60 The Prosecutor v. Thomas Lubanga Dyilo (Judgement on the appeal of Mr. Lubanga Dyilo
against the Oral Decision of the Trial Chamber I of 18 January 2008), ICC-01/04-01/06-1433, AP (10 July 2008), para.77.
61 ICCSt, Art.54(3)(e); ICC RPE, Rule 82. 62 ICC RPE, Rule 83.
63 A. Whiting, “Lead Evidence and Discovery before the International Criminal Court : The
Lubanga Case” (2009) [Volume 14 (Issue 1)], UCLA Journal of International Law and Foreign Affairs [p.207-233], p.215.
17 another feature of the ICC’s cooperation regime will be examined: the lack of harmonization of the rules of evidence collection.
2.2.4. The lack of harmonization of the rules of evidence collection
Even if States comply with requests for cooperation, they must do so according to their own domestic procedures.64 The ICC’s dependence on State cooperation means that evidence is
gathered according to different legal standards, depending on which State conducts the investigative measure.
The rules of evidence collection, and the standard of human rights protection can vary significantly from State to State. The Court’s own investigators can directly conduct the investigations on the field, or at least participate in such investigations, which could ensure that evidence is collected in conformity with the standards of the Statute.65 However, investigations
can be fully conducted by national authorities.
Evidence is collected pursuant to national procedures or by third parties but its admissibility, as the next section will show, is assessed by the Court.
2.3. The legal framework for exclusion of evidence gathered as a consequence of State cooperation
2.3.1. General admissibility rule at the ICC
There exists a legal framework allowing for the exclusion of evidence gathered in violation of the ICC’s legal standards. Exclusion of tainted evidence is intended to provide a legal remedy in cases of irregularities in the execution of a request for cooperation.
The principle guiding the assessment of the admissibility of evidence is that evidence serving the purposes of an investigation should be admitted. However, domestic systems strike a balance between what is considered necessary for the pursuit of criminal investigations and the fundamental rights of the accused. Most criminal justice systems accept that not all means of
64 ICCSt, Art.99.
18 investigation are acceptable.66 Therefore, not all types of evidence can be used to reach a
conviction and “relevant evidence which has probative value is admissible if such evidence is not affected by any exclusionary virus”.67
Nevertheless, at the ICC, proceedings are unique in that they focus on the gravest crimes committed, often in the context of a conflict. In such a context, evidence can be particularly difficult to collect. As the OTP’s dependence on States’ cooperation can significantly reduce the ability to gather evidence,68 the Court has a generous approach to the admission of evidence.
Article 69(4) of the Rome Statute provides that “the Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or a fair evaluation of the testimony of a witness”. In principle, this general admissibility rule allows for exclusion of evidence whenever its admission would prejudice fair trial. But the use of “may” in the provision indicates that the judges have discretion to admit the evidence. On the basis of this article, the Court can either assess firstly whether evidence is relevant enough to justify its admission and then take into consideration its probative value and fairness of the trial or admit all evidence and consider later relevance and other factors together.69
This power is confirmed by Rule 63(2) of the RPE, allowing the judges to freely assess all evidence submitted, in order to determine its relevance or admissibility. This flexible approach
66 P.Viebig, Illicitly Obtained Evidence at the International Criminal Court, International
Criminal Justice Series, Volume 4, (The Hague: Asser Press, Berlin: Springer, 2016), p.2.
67 The Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as "PAVO", Hazim Delic, Esad
Landzo also known as "ZENGA" (Decision on the Prosecution's Oral Requests for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused, Zdravko Mucic, to Provide a Handwriting Sample), IT-96-21, TC (19 January 1998), para.30.
68 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the admissibility of four documents),
ICC-01/04-01/06-1399, TC I (13 June 2008), para.24.
69 O. Triffterer and K. Ambos, Rome Statute of the International Criminal Court, A
Commentary, 3rd edn (München/Oxford/Baden-Baden: C.H. BECK – Hart – Nomos, 2016),
19 was also affirmed by the TC in the Lubanga70 and Katanga71 cases but whether the admissibility
standards should be applied more strictly is debatable.72
In any case, there is a mandatory exclusionary rule in the Statute aiming to protect persons against human rights violations and that rule is lex specialis to other rules on admissibility.73
2.3.2. Mandatory exclusion of evidence – Article 69(7) of the ICC Statute
Article 69(7) of the Rome Statute indicates the types of illegally gathered evidence which may not be used during trial. It provides that “evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admitted if: a) the violation casts substantial doubt on the reliability of the evidence; or b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings”. The mandatory aspect of this rule is highlighted by the use of the term “shall not”.
A Chamber ruling on the admissibility of evidence under this article will therefore make two consecutive inquiries: first, it will determine whether the evidence was obtained by means of a violation of the Rome Statute or of internationally recognized human rights. However, such an affirmative finding is not sufficient for deciding to exclude evidence. The Chamber will then consider whether the violation casts substantial doubt on the reliability of the evidence or whether the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.74 Judges have discretion to determine whether these conditions are
satisfied.75
70 Lubanga Decision on admissibility, supra note 68.
71 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Corrigendum to the
Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules), ICC-01/04-01/07-428-Corr, PTC I (25 April 2008), para.74.
72 See section 3.3.2.3.
73 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the Admission of Material from the
“Bar Table”), ICC-01/04-01/06-1981, TC I (24 June 2009), para.34.
74 The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques
Mangenda Kabongo, Fidèle Bebala Wandu And Narcisse Arido (Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido Against the Decision of Trial Chamber VII Entitled “Judgment Pursuant to Article 74 of the Statute”), ICC-01/05-01/13-2275-Red, AC (8 March 2018), para.280.
20 The PTC in Lubanga found that “article 69(7) of the ICC Statute rejects the notion that evidence procured in violation of internationally recognized human rights should be automatically excluded. Consequently, the judges have discretion to seek an appropriate balance between the Statute’s fundamental values in each concrete case”.76
The second limb of the test in Article 69(7) - whether the violation casts substantial doubt on the reliability of the evidence or whether the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings – shows that the rationale of this exclusionary rule is: 1) to exclude unreliable evidence and 2) preserve integrity of the Court.77
In order to be admitted, evidence must be collected and preserved “in a manner that safeguards the integrity and reliability of the evidence from tampering, corruption or tainting”.78
“Antithetical to and would seriously damage the integrity of the proceedings” has never been defined. It could potentially mean the same as “prejudice to fair trial” in Article 69(4), especially since the Chambers refer to the impact on the fair trial when analysing the integrity of the proceedings.79 When assessing the admissibility of illegally obtained evidence, the TC
in Lubanga stressed the need for the Court to balance “a number of concerns and values found in the Statute, including ... ‘respect for the rights of the person’ ”.80 A violation of pre-trial
rights can “also prejudice the fairness or integrity of a subsequent trial”.81 Thus, “in situations
where paragraphs 4 and 7 overlap, paragraph 4 is either a statement of principle to which paragraph 7 provides specific rules ... or is a residual means of non-admissibility or exclusion where paragraph 7 does not apply”.82
76 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the Confirmation of Charges),
ICC-01/04-01/06-803-tEN, PTC I (29 January 2007), para.84; confirmed in Lubanga Bar Table Decision, supra note 73, para.41.
77 Viebig, supra note 66, p.111.
78 H-J. Behrens and D.K Piragoff, “Article 69 Evidence”, in O. Triffterer, Commentary on the
Rome Statute of the International Criminal Court Observers’ Notes, Article by Article, 2nd edn,
(München/Oxford/Baden-Baden: C.H. BECK – Hart – Nomos, 2008), p.1134.
79 Lubanga Confirmation of Charges, supra note 76, paras.86-89; Lubanga Bar Table Decision,
supra note 73, paras.20-43; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of Charges), ICC-01/04-01/07-717, PTC I (30 September 2008), paras.93-98; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Prosecutor’s Bar Table Motions), ICC-01/04-01/07-2635, TC II (17 December 2010), para.39.
80 Lubanga Bar Table Decision, supra note 73, para.42. 81 Triffterer, supra note 69, Article 69 para.46.
21 Article 69(8) of the Rome Statute provides, however, that a violation of domestic law is irrelevant to the proceedings before the ICC. The Court has held on several occasions that evidence obtained illegally within one domestic system can be admitted as violations of national law do not render evidence inadmissible.83 Therefore, the ICC’s cooperation regime influences
the way evidence is collected but the Court’s system of admissibility of evidence does not take domestic practices into consideration.
2.4. Conclusion
Evidence collection at the ICC is strongly determined by the cooperation regime of the Court. Four features of the ICC’s cooperation regime were outlined in this chapter. The discussion showed that the Prosecutor’s dependence on state cooperation and third parties for the collection of evidence, challenges the ability to effectively investigate international crimes. It can also make it difficult for the defendant to gather their own evidence or to have access to confidential documents. Evidence is collected pursuant to different legal standards but the system of admissibility of evidence appears at the outset to be generous. The purpose of the next chapter will be to investigate whether and how these features create risks for the human rights of the defendant.
83 Bemba et al Appeals Judgment, supra note 74, para.289; The Prosecutor v. Jean-pierre
Bemba Gombo, Aimé Kilolo Musamba, Jean-jacques Mangenda Kabongo, Fidèle Babala Wanduand Narcisse Arido (Decision on Requests to Exclude Dutch Intercepts and Call Data Records), ICC-01/05-01/13-1855, TCVII (29 April 2016), paras. 26, 30; Lubanga Confirmation of Charges, supra note 76, para.69; Lubanga Bar Table Decision, supra note 73, para.36.
22 CHAPTER 3: RISKS FOR THE HUMAN RIGHTS OF THE DEFENDANT CAUSED BY NECESSARY RELIANCE ON COOPERATION DURING THE GATHERING OF
EVIDENCE
3.1. Introduction
The purpose of the third chapter will be to study the risks that the ICC’s cooperation regime generates for the defendant’s fair trial rights and privacy rights during the investigation. The Court’s focus on its mandate to “end impunity”, tends to jeopardise some of the fair trial guarantees that the Court alleges to provide.84 Moreover, if human rights, such as the right to
privacy, are violated during the investigation, the admissibility system does not provide an effective remedy.
In order to understand which human rights risks are caused by the cooperation regime, it is necessary to understand how human rights are protected by the ICC (3.2). The first section will provide an overview of the current human rights explicitly protected in the ICC Statute (3.2.1), and other implicitly recognized human rights (3.2.2).
The second section will show, however, that these rights are at risk of being violated, or have even been violated during the gathering of evidence, and that these violations are not being remedied by the Court (3.3). First, examples of violations at the stage of evidence collection will be provided (3.3.1). Human rights can indeed be violated due to States’ refusal to cooperate with the defendant (3.3.1.1), the OTP’s over-reliance on third-parties and intermediaries (3.3.1.2), non-disclosure of evidence to the defendant (3.3.1.3) and the fact that procedural safeguards are not always respected by national authorities (3.3.1.4). Next, this section will explain why the Court’s system for the admission of evidence does not provide a remedy to such violations (3.3.2).The fact that the ICC does not take into consideration violations of domestic law in its admissibility assessment is an important obstacle to the exclusion of illicitly obtained evidence (3.3.2.1). Moreover, the Court has adopted a strict interpretation of the second limb of the test in Article 69(7), that prevents the Court, until now at least, from
84 G. Sluiter, “Atrocity Crimes Litigation: Some Human Rights Concerns Occasioned by the
Selected 2009 Case Law” (2010) [Volume 8 (Issue 3)], Northwestern University Journal of International Human Rights [p.248-268], p.257.
23 excluding tainted evidence (3.3.2.2). Furthermore, the Court has not adopted a clear view on when to assess the admissibility of evidence in order to speed up its proceedings (3.3.2.3). The last section will assess, in view of the examples provided, whether the defendant’s human rights, which are recognized by the ICC, are in fact in danger (3.4).
3.2. Human rights protection at the ICC
3.2.1. Human rights explicitly protected in the Statute
The Rome Statute establishes a legal framework of protection of human rights. The establishment of the ICC was even considered “a giant step forward in the march towards universal human rights and the rule of law”.85 There are a number of provisions related to the
rights of the defendant in particular.
Article 55 codifies the rights of persons during an investigation and during police questioning: the right not to incriminate oneself or to confess guilt, the right not to be subjected to any form of coercion, duress or threat, to torture or to any other form of inhumane or degrading treatment or punishment, the right to be assisted by an interpreter, the right not to be subjected to arbitrary arrest or detention, the right to be informed that one is being suspected, the right to remain silent and the right to legal counsel. It is interesting to note that these rights also have to be respected, in principle, by national authorities. But these procedural safeguards only apply when the investigation is conducted “either by the Prosecutor or by national authorities at his or her behest”.86
Article 64(2) provides that “the Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of the victims and witnesses”. The right to a fair trial requires the defendant to be able to obtain
85 United Nations, Secretary-General Says Establishment of International Criminal Court is
Major Step in March Towards Universal Human Rights, Rule of Law (Press Release), L/2890 (20 July 1998).
86 The Prosecutor v. Laurent Gbagbo (Decision on the “Corrigendum of the Challenge to the
Jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute Filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”), ICC-02/11-01/11-212, PTC I (15 August 2012), para.96.
24 evidence in order to prepare their case.87 It includes the right to have adequate time and facilities
for the preparation of the defence88 and the principle of equality of arms.89 The term “facilities”
refers to “documents, records, etc. necessary for the preparation of the defence”.90 The principle
of equality of arms implies that “each party must be afforded a reasonable opportunity to present its case – including his evidence – under conditions that do not place it at a substantial disadvantage vis-à-vis the opponent”.91
Furthermore, Article 66 recognizes the right of everyone to be “presumed innocent until proved guilty before the Court”. Additionally, Article 59 includes some rights afforded to the defendant during arrest proceedings, Article 60 provides for the right to apply for interim release and Article 63 protects the accused right to be tried in his presence.
Other rights are specifically granted from the moment a person appears before the Court:92 the
right to be tried in a public and fair hearing conducted impartially, the right to be informed of the charges against him, the right to prepare his defence with the counsel of his choice, the right to be tried without undue delay, the right to be present at trial and to conduct his defence in person or through legal assistance, the right to examine witnesses and to bring evidence, the right to be assisted by an interpreter, the right to silence, the right to make an unsworn oral or written statement in his defence, the right not to have imposed on him any reversal of the burden of proof and the right to disclosure of exculpatory evidence.93
These explicit rights provided for in the Statute are not exclusive. Other rights are protected at the ICC through Article 21.
3.2.2. Other protected human rights
87 Sluiter, supra note 28, p.131. 88 ICCSt, Art.67(1)(b).
89 ICCSt, Art.67(1)(e).
90 M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein,
Arlington: N.P Engel Publisher, 1993), p.256.
91 ECtHR, Dombo Beheer B.V. v. The Netherlands, No.14448/88 (23 October 1993), para.33. 92 ICC RPE, Rule 121(1).
25 The ICC may apply human rights norms insofar as they are contained in the secondary sources of the Court’s law, such as “rules and principles of international law” and even principles derived from national law.94
Moreover, Article 21(3) of the Statute specifies that before the Court “the application and interpretation of law ... must be consistent with internationally recognized human rights”. “Internationally recognized human rights” can be interpreted as those rights that are widely recognized by the international community in different legal instruments; those that are “acknowledged by customary international law, international treaties and conventions”.95
Custom96 and many international or regional texts97 have indeed been referred to by the Court
and are instructive, irrespective of whether they have been ratified by the State concerned in a case.98 The jurisprudence of the ECtHR is often relied upon by the Court.99 Article 21(3) refers
explicitly to the prohibition of discrimination, but not exhaustively.
94 ICCSt, Art.21(1); K. Zeegers, International Criminal Tribunals and Human Rights Law,
Adherence and Contextualization (The Hague: Asser Press, Berlin: Springer, 2016), p.73.
95 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the Prosecutor’s “Application for
Leave to Reply to ‘Conclusions de la defense en réponse au mémoire d’appel du Procureur’ ”), ICC-01/04-01/06-424, AC (12 September 2006), Separate Opinion of Judge Pikis, para.3.
96 The Prosecutor v. Germain Katanga (Decision on the application for interim release of
detained witnesses DRC-D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350), ICC-01/04-01/07-3405-tENG, TC II (1 October 2013); The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on an Amicus Curiae application and on the “Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins dʹasile” (articles 68 and 93(7) of the Statute) ), ICC-01/04-01/07-3003-tENG, TC II (9 June 2011), para.68.
97 The Prosecutor v. Mathieu Ngudjolo Chui (Order on the implementation of the cooperation
agreement between the Court and the Democratic Republic of the Congo concluded pursuant article 93 (7) of the Statute), ICC-01/04-02/12-158, AP (20 January 2014), footnote 28; Situation in the Democratic Republic of the Congo (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6), ICC-01/04-101-tEN-Corr, PTC I (17 January 2006), para.115; The Prosecutor v. Thomas Lubanga Dyilo (Decision on victims’ participation), ICC-01/04-01/06-1119, TC I (18 January 2008), para.35; Situation in the Republic of Kenya (Decision on Victims’ Participation in the Proceedings Related to the Situation in the Republic of Kenya), ICC-01/09-24, PTC II (3 November 2010), para.5.
98 G. Hochmayr, “Applicable Law in Practice and Theory: Interpreting Article 21 of the ICC
Statute” (2014) [Volume 12 (Issue 4)], Journal of International Criminal Justice [p.655-679].
99 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the Prosecutor’s Application for a
warrant of arrest, Article 58), ICC-01/04-01/06-1-Corr-Red, PTC I (10 February 2006), para.12; The Prosecutor v. Thomas Lubanga Dyilo (Judgement on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”), ICC-01/01-01/06-773, AP (14 December 2006), paras.20, 50; The Prosecutor v. Laurent Gbagbo (Decision
26 The Court has already found that defendants had specific rights that were not overtly provided for by the Statute, for example, in the Ngudjolo case, the Presidency found that in order to protect the right of detainees to family visits, the cost of these visits had to be covered by the Court.100
Human rights norms therefore constitute the “backbone of the rules governing the conduct of investigations and trials”.101 The AC stated that human rights “underpin the Statute, every
aspect of it”.102 For a number of authors, Article 21(3) establishes a normative hierarchy, a
“super-legality”103 by which “such norms are superior to those contained in the Court’s internal
legal instrument, including the Statute”.104 Therefore, nothing “should prevent the Court from
refusing to apply an Element of Crimes, an RPE, or even a provision of its Statute, if its application were considered to infringe an ‘internationally recognized human right’ ”.105 Others
on the fitness of Laurent Gbagbo to take part in the proceedings before this Court), ICC-02/11-01/11-286-Red, PTC I (2 November 2012), paras.46-48.
100 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on “Mr Mathieu
Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar's Decision of 18 November 2008”), ICC-RoR-217-02/08-8, Presidency (10 March 2009), para.31.
101 L. Gradoni, “International Criminal Court and Tribunals: Bound by Human Rights Norms...
or Tied Down?” (2016) [Volume 19 (Issue 3)], Leiden Journal of International Law [p.847-873], p.847.
102 The Prosecutor v. Thomas Lubanga Dyilo (Judgement on the Appeal of Mr. Thomas
Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) (a) of the Statute of 3 October 2006), ICC-01/04-01/06-772, AP (14 December 2006), para.37. See also: Gbagbo Decision on Fitness, supra note 99, para.45.
103 A. Pellet, “Applicable law”, in A. Cassese, P. Gaeta and J. Jones, The Rome Statute of the
International Criminal Court: a Commentary (Oxford: Oxford University Press, 2002), p.1077, 1081.
104 Zeegers, supra note 94, p.73. See also: D. Sheppard, “The International Criminal Court and
“Internationally Recognized Human Rights”: Understanding Article 21(3) of the Rome Statute” (2010) [Volume 10 (Issue 1)] International Criminal Law Review [p.43-71], p.46; B. Perrin, “Searching for the Law while Seeking Justice: the Difficulties of Enforcing Humanitarian Law in International Criminal Trials” (2008) [Volume 39 (Issue 2)], Ottawa Law Review [p.367-404], p.398; S. Vasiliev, International Criminal Trial:, A Normative Theory, PHD Thesis, University of Amsterdam (2014).
105 Pellet, supra note 103, p.1080. See also: D. Akande, “Sources of International Criminal
Law”, in A. Cassese (General Ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009), p.47; G. Bitti, “Article 21 and the Hierarchy of Sources of Law before the ICC”, in C. Stahn, The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015), p.437; Hochmayr, supra note 98, p.676-677; L. Gradoni, “The Human Rights Dimension of International Criminal Procedure”, in G. Sluiter, H. Friman, S. Linton, S. Vasiliev, S. Zappalà, International Criminal Procedure:
27 reject this approach to Article 21(3) and consider it to be inconsistent with the intent of the drafters who, they argue, listed the sources of ICC law by their importance.106 In any case, the
PTC endorsed this interpretation when it held in Lubanga that it may be required to “exceed the specific terms of Article 67 of the Statute” in order to protect the right to a fair hearing.107
Moreover, TC in Katanga and Ngudjolo set aside Article 93(7)(b) of the Statute in light of internationally recognized human rights.108 However, the AC considered this ruling to be
prejudicial to the Court’s ability to enter into cooperation agreements with States and subsequently reversed the decision.109 Therefore, the Court considers the possible consequences
of its decisions on the willingness of States to cooperate, even if it goes against the protection of human rights norms.
Human rights appear to be strongly protected in ICC law. However, the system of cooperation, as it will be discussed in the next section, potentially endangers complete protection.
3.3. Examples of (potential) violations of human rights due to the cooperation regime of the Court
3.3.1. Examples of (potential) violations of human rights at the stage of collection of evidence
Principles and Rules (Oxford: Oxford University Press, 2013), p.84; G. Sluiter, “Human Rights Protection in the ICC Pre-Trial Phase”, in C. Stahn and G. Sluiter, The Emerging Practice of the International Criminal Court (Leiden, Boston: Martinus Nijhoff Publishers, 2009), p.463.
106 G. Hafner and C. Binder, “The Interpretation of Article 21(3) ICC Statute: Opinion
Reviewed” (2004) [Volume 1 (Issue 1)], Austrian Review of International and European Law [p.163-190], p.175.
107 The Prosecutor v. Thomas Lubanga Dyilo (Decision on the Final System of Disclosure and
the Establishment of a Timetable, Annex I: Discussion of the Decision on the Final System of Disclosure), ICC-01/04-01/06-102, PTC I (15 May 2006), para.97; The Prosecutor v. Thomas Lubanga Dyilo (Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence), ICC-01/04-01/06-108-Corr, PTC I (19 May 2006), para.37.
108 Katanga Decision on Amicus Curiae application, supra note 96, para.73.
28 3.3.1.1. (Potential) Violations relating to the absence of State cooperation during the investigation
The absence of State cooperation during ICC investigations creates two problems. First of all, the lack of evidence slows down the investigative process, which makes it difficult for the Court to respect the accused’s right to be tried without undue delay.110 This risk was assessed in
decisions where the PTC decided to postpone the confirmation of charges hearing due to insufficient evidence, pursuant to Article 61(7)(c)(i). In Gbagbo, for example, the Chamber affirmed that “whether or not the activation of Article 61(7)(c)(i) of the Statute unduly infringes the right of the suspect to be tried without undue delay must be determined on a case-by-case basis, taking into account the particularities of the case and in accordance with internationally recognized human rights”.111 After noting the seriousness of the charges and the complexity of
the case, the majority considered that a decision to postpone the confirmation of charges hearing would not infringe the defendant’s rights.112 However, Judge Fernandez de Gurmendi dissented
from this opinion and argued that this decision “may result in an extension of the already too lengthy pre-trial proceedings by generating, inter alia, more complex processes of disclosure, redactions and protective measures, to the detriment of the right of the suspect to be tried without undue delay”.113 Neither the majority nor the dissenting judge explained their
respective positions in more detail. Still, this example shows that when States refuse to cooperate with the Court and the OTP has difficulties to gather evidence, the length of investigations risks infringing on the suspect’s right to be tried without undue delay.
Secondly, if States refuse to cooperate with the defence, this can create a problem with respect to the equality of arms. The defendant will be in a substantial disadvantage compared to the Prosecutor as the OTP has greater powers to seek cooperation. If a State is unwilling to cooperate with a defendant, then they must seek judicial assistance.114 However, this assistance
is not guaranteed, as the Court can refuse to issue an order to cooperate whenever it considers it to be unnecessary. In Katanga and Ngudjolo, the PTC rejected the Defence application to
110 ICCSt, Art.67(1)(c).
111 The Prosecutor v. Lauent Gbagbo (Decision adjourning the hearing on the confirmation of
charges pursuant to article 61(7)(c)(i) of the Rome Statute), ICC-02/11-01/11-432-tFRA, ICC PTC I (3 June 2013), para.39.
112 Ibid, para.42.
113 Ibid, Dissenting opinion of Judge Silvia Fernandez de Gurmendi,
ICC-02/11-01/11-432-Anx-Corr, para.28.
29 seek cooperation from the DRC because it believed the issuance of an order was unnecessary at the preliminary stage of the proceedings.115 The Chamber held that because the documents
sought by the Defence were likely to be in possession of the OTP, the Defence should approach them before requesting such an order.116 Moreover, the Chamber found that the Defence could
have filed a motion requesting the Chamber to order the Registry to provide the relevant information.117 Whilst the opinion of the majority could be justified in the “interests of
procedural economy and State sovereignty”,118 it shows that the defendants do not have the
same capabilities as the OTP. Indeed, the preparation of the defence appears to be dependent on the Registry or even the OTP itself. Moreover, these prerequisites to the issuance of an order are not provided for in the Statute nor the RPE.119 Judge Ušacka echoed this in her dissent,
arguing that “the conclusion of the majority seems to be that if there is any other source of the information besides the State, the Defence is not entitled to seek cooperation from a State”.120
Thus, the majority set “the threshold too high for granting a cooperation request”,121 which
infringes on the accused’s right to have adequate facilities for the preparation of his defence. Similarly, in Banda and Jerbo, Sudan was unwilling to cooperate with the defendants and the judges rejected their application for the issuance of a Court order. This decision was justified by the fact that on-site investigations were not necessary at the confirmation of charges stage, “in particular in light of the strategy pursued by the Defence”.122 However, this was not for the
Court to decide, especially since the Defence could have changed its strategy. Contrary to the Prosecutor, who alone assesses which investigations are necessary at a given stage of the proceedings, without interference from judges, defendants cannot request cooperation unless
115 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Decision on the “Defence
Application pursuant to Article 57(3)(b) of the Statute to Seek the Cooperation of the Democratic Republic of Congo (DRC)”), ICC-01/04-01/07-444, PTC I (25 April 2008).
116 Ibid, p.6. 117 Ibid, p.7.
118 M. Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the
Reconstruction of Disputed Events (Leiden, Boston: Martinus Nijhoff Publishers, 2013), p.218.
119 K. N. Calvo-Goller, La Procédure et la Jurisprudence de la Cour Pénale Internationale
(Paris : Lextenso éditions, 2012), p.217.
120 Katanga Decision on Defence Application, supra note 115, Partly Dissenting Opinion of
Judge Anita Ušacka, para.3.
121 Ibid.
122 The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus
(Decision on the “Defence Application pursuant to article 57(3)(b) of the Statute for an order for the preparation and transmission of a cooperation request to the Government of the Republic of Sudan”), ICC-02/05-03/09-102, PTC I (17 November 2010), para.3.
