1
The Test for Admissibility of Evidence at the
International Criminal Court:
Can the Right to a Fair Trial Co-exist with the Need to Seek
the Truth?
Emily Layla Ghadimi
June 2015
Student No.: 10630759
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CONTENTS
1. Introduction ... 3
2. Rules of Evidence: A Procedural Balance between the Adversarial and Inquisitorial Systems? ... 4
2.1. Overview ... 4
2.2. Preparatory Background of the Rules for Admissibility of Evidence ... 7
3. The Current Test for Admissibility of Evidence: Defined by Broad Judicial Discretion ... 8
3.1. Overview ... 8
3.2. The Court’s Interpretation of the Applicable Law ... 9
3.3. Exclusion of Evidence ... 12
3.3.1. Illegally or Improperly Obtained Evidence ... 13
3.3.2. Hearsay Evidence... 14
3.3.3. The Principle of Orality and the Immediacy Principle ... 15
3.4. Challenging a Decision on Admissibility ... 16
4. Human Rights Considerations: The Right to a Fair Trial at the ICC ... 18
4.1. Overview ... 18
4.2. Equality of Arms ... 19
4.3. Right to Examine Witnesses ... 21
5. Critical Analysis of the Current Admissibility Test: What is The Impact of Broad Judicial Discretion on the Right to a Fair Trial? ... 22
5.1. Overview ... 22
5.2. Judicial Discretion ... 24
5.3. Procedural Uncertainty ... 26
5.4. Meeting the Aims of the Court ... 27
6. Recommendations ... 29
7. Conclusion ... 31
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1. INTRODUCTION
This paper will discuss and analyse the rules governing the admissibility of evidence at trial at the International Criminal Court (‘ICC’ or ‘the Court’) and the potential impact these rules may have on the accused’s right to a fair trial. The current test requires the Court to determine the prima facie relevance and probative value of a piece of evidence, and then to weigh its probative value against its potential to prejudice the accused person. Each step of this process allows for broad judicial discretion, which leads to procedural certainty and in turn exposes the central issue that the present test fails to adequately ensure the protection of the accused’s right to a fair trial. Although the rules allow for the possible exclusion of prejudicial evidence the application and interpretation of these rules has been far from clear, which perpetuates the uncertainty in this area. Such evidence is instead treated like other less reliable forms of evidence, for example hearsay evidence, and is accorded less probative value when weighed against its prejudicial effect. This approach indicates that the Court will in fact tolerate a degree of prejudice against the accused as long as it falls below a certain threshold.
The efficacy of the rules can only be analysed in the context of the broader aims of the Court. One of the main purposes of the Court is to punish serious international crimes, which encompasses the need to seek the truth and vindicate the rights of victims. These aims must be balanced with the need to provide a fair and impartial trial process that also respects the rights of the accused. The lack of clear rules governing the admissibility or exclusion of evidence has created a trial process which fails to ensure a fair trial and in the long term could in fact damage the credibility of the Court as an institution which is capable of seeking the truth and protecting victims of serious international crimes. It is contended that rather than stifling the capacity of the Court to find the truth, stronger rules of evidence would in fact reinforce the ability to punish serious international crimes and strengthen the reputation of the Court into the future.
The first section will briefly outline the debate surrounding the nature of the ICC model, whether it is adversarial, inquisitorial or a hybrid of the two models. The preparatory negotiations and background to the development of the law of evidence in the Rome Statute of the ICC (‘the Statute’)1 and the Rules of Procedure and Evidence of the ICC (‘the RPE’)2
1
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90
4 will also be discussed. The next section will set out the law and jurisprudence regarding admissibility of evidence, including the circumstances in which evidence may be excluded and the possibility of challenging a decision on admissibility. The following section will discuss the elements of the right to a fair trial at the ICC, and how this differs in practice from the right to a fair trial in a domestic setting. It will be contended that the broad judicial discretion provided for by the current rules leads to procedural uncertainty, which does not give full effect to the accused’s right to a fair trial and ultimately fails to achieve any of the stated aims of the Court. Finally, there will be some recommendations for how the issues with the current approach can be resolved, in a way which is conscious of the unique challenges the Court faces.
At the outset it is important to set out a number of caveats for the scope of this paper. The main discussion will concern the rules and case law of the ICC. The jurisprudence of the
ad hoc tribunals will not be set out in detail, although some examples may be mentioned
where relevant to the current ICC position or if it offers guidance on how the jurisprudence of the Court might develop in the future. Many parts of the discussion will touch on the dichotomy of the ‘adversarial’ and ‘inquisitorial’ systems. For ease of reference, given the variance in the use of these terms across the literature, these terms will refer analogously to ‘common law’ or ‘accusatorial’ and ‘civil law’ systems respectively. Despite the supposedly derogatory connotation associated with the term ‘inquisitorial’,3 it is still used throughout the relevant literature and so its use in this instance is unavoidable.
2. RULES OF EVIDENCE: A PROCEDURAL BALANCE BETWEEN THE ADVERSARIAL AND INQUISITORIAL SYSTEMS?
2.1. Overview
This section will outline the debate on whether the ICC is more akin to an adversarial or an inquisitorial system, or indeed whether it is more of a hybrid model giving rise to a sui
generis system. There is further dispute concerning whether or not the dichotomy between
adversarial and inquisitorial models is even a useful tool for analysis at an international level,4 as it risks resulting in ‘polarization, simplification and distortion’ of the issue.5 Indeed,
2 The Rules of Procedure and Evidence of the International Criminal Court (9 September 2002) UN Doc
PCNICC/2000/1/Add.1 (2000)
3
Ambos, International criminal procedure: “adversarial”, “inquisitorial” or mixed?, Int.C.L.R. 2003/3, p. 3
5 there is an argument that the discussions focus too narrowly on the domestic common law and civil law paradigms. This line of reasoning contends that focusing instead on the fair trial rights of equality of arms and an adversarial procedure will lead to a new legal tradition rather than simply a compromise between adversarial and inquisitorial elements.6 This controversy aside, it can still be beneficial to use the characteristics of the two models to discern, analyse and discuss procedural issues at an international level.7 It is important to keep in mind that such models are only indicative of certain tendencies, rather than comprehensively describing actual legal systems.8 Indeed there has traditionally been tension between the two models, and it is interesting to observe how this has influenced the development of the procedural framework of the ICC.9 The dichotomy is particularly informative in the context of the negotiations for the Rome Statute and the RPE, as some participants described the conferences as a ‘clash of cultures between the common law and the civil law’.10
An early example of the challenge of balancing the two models can be seen during the negotiations for the International Law Commission (‘ILC’) Draft Statute for the ICC (‘Draft ILC Statute’),11 when, as Crawford put it, ‘[the ILC] had also to contend with the tendency of each duly socialized lawyer to prefer his own criminal justice system’s values and institutions’.12 The same issues arose again a few years later during the Rome Conference. The main negotiating body, the Committee of the Whole, was divided into a number of working groups covering each part of the Draft ILC Statute, in the hopes that the more political issues could be separated from the procedural issues.13 One of these recurring political issues across the board was managing the relationship that the Court would have
5
Klamberg, Evidence in International Criminal Trials, 2013, p. 47, (Referring to Damaška (n.4), p. 10; Packer, Two Models of the Criminal Process, U.Pa.L.Rev. 1964/1, p. 6)
6 Jackson, Finding the Best Epistemic Fit for International Criminal Tribunals, JICJ 2009/7, p. 18-19 7 Zappalà,Human Rights in International Proceedings, 2003, p.17
8
Zappalà, ibid, p. 15; Klamberg, (n.5), p. 47-48; Murphy & Baddour, International Criminal Law and Common Law Rules of Evidence, in: Principles of Evidence in International Criminal Justice, Khan, Buisman & Gosnell (eds), 2010, p.97
9 ibid, p. 15 10
Lewis, Trial Procedure, in: The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, 2001, p. 547-550
11 ILC, Draft Statute for an International Criminal Court with commentaries, 22 July 1994, [online] 12 Crawford, The ILC Adopts a Statute for an International Criminal Court, AJIL1995/2, p. 408 13
UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Volume II, UN Doc. A/CONF.183/C.1/SR.2, 2nd Meeting (16 June 1998), para. 1, p. 138
6 with the States, and of course aiming to define what the balance of competence would be between the two.14 This issue arose even during the negotiations of the Working Group on Procedural Matters, illustrating how important a task it was to strike the appropriate balance, and also revealing the artificiality of the distinction between political and procedural issues which had been made at the outset of the negotiations.15 To remedy this, informal inter-sessional meetings, comprising of governmental and non-governmental representatives and staff members of the ad hoc tribunals, were set up over the entire preparatory process to address these challenges. All attendees were there in their personal capacity, which enabled a more frank exchange of views than would have been possible in the official negotiations.16
At the Rome Conference it quickly became apparent that further documents would be required to supplement the Rome Statute to ensure effective practical operation of the Court.17 These subsidiary documents included the RPE and the Elements of Crimes.18 The drafting of the RPE was a less political process than that of the Elements of Crimes,19 however it was still subject to similar challenges. Not every part of the Statute had been expanded on in detail, so the Preparatory Commission had to harmonise divergent procedural traditions when it came to drafting rules regarding the practical aspects of a criminal trial.20 Furthermore, there were persisting arguments put forward that the judges should draft the RPE, as had been the case with previous tribunals,21 but given the protracted nature of the negotiations, there were still issues of which the States wanted to retain control of during the Preparatory Commission’s negotiations.
14
Fernández de Gurmendi, International Criminal Law Procedures in The International Criminal Court: The Making of the Rome Statute Issues, Negotiations, Results, 1999, p. 226
15 ibid, p. 227 16 ibid, p. 218 17
Kirsch & Oosterveld, The Preparatory Commission for the International Criminal Court, Fordham Int'l L.J. 2001/3, p. 565
18 Final Act of the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, UN Doc. A/CONF.183/10*, (17 July 1998), Resolution F
19
Elements of Crimes of the International Criminal Court (9 September 2002) UN Doc PCNICC/2000/1/Add.2 (2000); Kirsch & Oosterveld, (n.17), p. 569-572
20 Kirsch & Oosterveld, (n.17), p. 574
21 Pellet, Applicable Law, in: The Rome Statute of the International Criminal Court, Cassese et al., 2002, p.
1064, previous criminal tribunals were given competence to establish their own RPE, for example: Article 13 of the Statute of the Nuremberg Tribunal or Article 15 of the Statute of the ICTY
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2.2. Preparatory Background of the Rules for Admissibility of Evidence
The distinction between the adversarial and inquisitorial systems is particularly informative when analysing the characteristics of the rules for the admissibility of evidence. In this regard the adversarial approach is characterised by stricter exclusionary rules, often depending on the type of evidence and the manner in which it was obtained. One example of this is the rule against hearsay, which in common law systems is generally excluded, subject to some exceptions, in order to counteract any potential prejudice of the jury against the accused person.22 By contrast, in inquisitorial or civil law systems, the judge has a dossier of the case and the law of evidence is instead a normative guide for the judge to evaluate the contents of the dossier and any additional evidence.23 In the inquisitorial model, part of the basis of the lack of a stricter exclusionary rule is based on the fact that professional judges are better equipped to recognise unreliable evidence than are lay juries, and thus will weigh its probative value accordingly. The transposition of this rationale into the analysis of the Court to justify lack of a mandatory exclusionary rule, and some of the criticisms of this position,24 will be discussed in further detail in the later sections.
The development of the rules governing admissibility of evidence at trial reflect the comments of Judge McDonald, then President of the ICTY, when she stated that the RPE should be ‘a framework, not a straitjacket’, and that there must be flexibility to allow the exercise of judicial discretion where necessary.25 The balance reached in the ICC is ‘…an essentially accusatorial procedure, with an independent prosecutor as distinct from an investigating magistrate…decision making is by a multimember panel of judges, with no jury…’26 As cases are decided by professional judges rather than juries there is ostensibly less of a need for strict rules of admissibility of evidence, although the logic of this theory will be scrutinised further below. In any case, the Court has the discretion to rule on the
22 Orie, Accusatorial v Inquisitorial Approach in International Criminal Proceedings, in: The Rome Statute of
the International Criminal Court, 2002, p. 1451
23
ibid, p. 1452
24 Caianiello, Law of Evidence at the International Criminal Court, North Carolina Journal of International Law
and Commercial Regulation 2011/2, p. 304-306
25
Remarks made by Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the former Yugoslavia, to the Preparatory Commission for the International Criminal Court, ICTY Press Release JL/P.I.S./425-E (30 July 1999) [online]
8 admissibility or relevance of any evidence put before it, and it must weigh the probative value of the evidence against any potential prejudice to the rights of the accused.27
Neither the final forms of the Rome Statute nor that of the RPE contain any strict exclusionary rules of evidence, however an earlier draft did contain such a rule. Article 44(5) of the Draft Statute for an International Criminal Court, which later became Article 69(7), stated that ‘[e]vidence obtained by means of a serious violation of this Statute or of other rules of international law shall not be admissible’ (emphasis added).28 The language of this provision precludes an exercise of judicial discretion in determining the admissibility of illegally obtained evidence, although a judicial determination is required in factually determining what constitutes a ‘serious violation’ of the Statute or international law. The stricter draft rule appears to stem from the adversarial tradition, and perhaps illustrates the effort to temper the apparent inquisitorial characteristics of the composition of the Court. However, the final version of this article, Article 69(7), contains two qualifying sub-sections which undo this mandatory exclusionary rule. Under the current rule, evidence obtained illegally or improperly shall not be admissible if the violation casts substantial doubt on the reliability of the evidence, or if admitting the evidence would be antithetical to and would seriously damage the integrity of the proceedings. The implications of this provision will be discussed in more detail in the following sections.
3. THE CURRENT TEST FOR ADMISSIBILITY OF EVIDENCE: DEFINED BY BROAD JUDICIAL DISCRETION
3.1. Overview
As discussed above, long negotiations took place to define the most appropriate way of determining the admissibility of evidence during the trial. The eventual balance between the common and civil law systems was struck to allow broad judicial discretion in determining the admissibility, relevance and probative value of evidence.29 This has been described as a ‘flexible civil law approach’, forgoing the common law system of strict
27 Rome Statue Articles 64.9(a) and 69.4 28
ILC 1994 Draft Statute, (n.11), p. 58-59
9 exclusionary rules in favour of wide discretion of the Court.30 This section will briefly set out the current rules for admissibility of evidence, with the Court’s interpretation of the Statute and the RPE developing throughout the Lubanga and Katanga proceedings. This is not an exhaustive discussion of every circumstance which might arise regarding admissibility. Instead, it sets out some pertinent examples which illustrate the interaction between admissibility rules and the right of the accused to a fair trial. In addition, the possibility of challenging a decision on admissibility of a piece of evidence will also be briefly outlined.
3.2. The Court’s Interpretation of the Applicable Law
The general rules governing the admissibility of evidence at the ICC come mainly from Article 64(9) and Article 69 of the Rome Statute and Rules 63 and 64 of the RPE, with some more specific additional provisions included in both documents. Article 64(9) and Rule 63 give the Trial Chamber the power to determine the admissibility or relevance of all evidence put before it, either upon an application by one of the parties or of its own accord. During the drafting of the RPE, a French proposal for the draft Rule 63 which called for the admission of all evidence,31 almost jeopardised the compromises that had been painstakingly reached in the Rome negotiations. The final version of Rule 63 reaffirms the compromise, authorising but not obliging a chamber to freely evaluate evidence presented to it.32 The Trial Chamber confirmed this flexible approach in the Lubanga case, asserting that this broad power was purposefully granted to the Court by the drafters of the Statute, made necessary by the ‘infinitely variable circumstances in which the court will be asked to consider evidence.’33 Article 69 then sets out the particular rules governing the treatment of evidence, which the Trial Chamber in the Katanga case again recognised allows for the ‘free assessment of evidence’. Since the Statute does not specify how different types of evidence are to be weighed by the Court, in this decision Judge Steiner confirmed that it is for the
30
Ambos, (n.3), p. 22, (Referring to Boas, Admissibility of Evidence under the Rules of Procedure and Evidence of the ICTY: Development of the ‘Flexibility Principle’, in: Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk McDonald, 2001, p. 264)
31 Preparatory Commission for the International Criminal Court, Proposal by France on Rules of Procedure and
Evidence: Part 3 (Trial proceedings), section 3 (Pre-trial phase), Subsection 1 (Commencement of investigation and proceedings), 22 February 1999, UN Doc. PCNICC/1999/DP.6
32 Klamberg, (n.5), 2013, p. 348, (Referring to: Piragoff, Article 69 – Evidence, in: Commentary on the Rome
Statute of the International Criminal Court, 2008, p. 1305-1306)
33
Lubanga, ICC T.C. I, (ICC-01/04-01/06), Decision on the admissibility of four documents, 13 June 2008 (I), para. 24
10 Chamber alone to determine the probative value of any piece of evidence, regardless of the form this evidence takes; which is stated in Article 69(4).34
In essence Article 69(4) lays down a three-pronged test for the admission of evidence before the Court, set out by the Trial Chamber I in the Lubanga case.35 The first step is for the Court to determine is whether or not the evidence presented is prima facie relevant to the case, as it relates to matters either in the investigation of charges against the accused or with regard to the participating victims.36 Secondly, the Chamber must determine the probative value of the evidence.37 Thirdly and finally, the Chamber must, where relevant, weigh the probative value of the evidence against its prejudicial effect.38 This final step will be discussed below as it relates to the exclusion of evidence, and the treatment of illegally or improperly obtained evidence and hearsay evidence.
The Trial Chamber in Katanga elaborated on the issue of relevance, stating that ‘[i]f the evidence tendered makes the existence of a fact at issue more or less probable, it is relevant. Whether or not this is the case depends on the purpose for which the evidence is adduced.’ The Trial Chamber indicated that if the purpose of the evidence is not immediately apparent then it is up to the party presenting it to show how it might prove or disprove a material fact in the case.39 This approach has been confirmed by the Pre-Trial Chambers in the Bemba, Ruto et al. and Muthaura et al. cases, with each affirming that for a piece of evidence to be relevant there must be ‘a nexus between the specific piece of evidence and a charge or a fact of the case to be proven.’40 This jurisprudence shows a clear and accepted
34 Katanga & Ngudjolo, ICC P.T.C. I, (ICC-01/04-01/07), 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, 21 April 2008, para. 74, (Referred to by Schabas, The International Criminal Court: A Commentary on the Rome Statute, 2010, p. 838)
35 Lubanga, (n.33), ICC T.C. I, 13 June 2008 (I), paras. 27-32, (Referred to by Schabas, (n.34), p. 843) 36 ibid, para. 27
37
ibid, paras. 28-30
38 ibid, paras. 31-32
39 Katanga & Ngudjolo, ICC T.C. II, (ICC-01/04-01/07), Decision on the Bar Table Motion of the Defence of
Germain Katanga, 21 October 2011, para. 16
40
Bemba, ICC P.T.C. II, (ICC-01/05-01/08), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 41; Ruto et al., ICC P.T.C. II, (ICC-01/09-01/11), Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 66; Muthaura et al., ICC P.T.C. II, (ICC-01/09-02/11), Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 79, (Referred to by Klamberg, (n.5), p. 349)
11 approach to determining prima facie relevance in satisfying the first step of the admissibility test.
The Trial Chamber in Lubanga noted that there are countless factors that may be significant in making a determination of the probative value of a piece of evidence. The Chamber cited the ICTY Appeals Chamber Aleksovski case, which set out some ‘indicia of reliability’, including how trustworthy the evidence is, the content of the evidence and the circumstances in which the evidence arises.41 The Chamber in Lubanga elaborated on this but tracked back somewhat, stressing that there is no exhaustive list of criteria to apply and cautioning against imposing any limits, even artificially, on the authority of the Court to consider any piece of evidence. While examining the probative value of the evidence the Chamber should also consider whether there are adequate means to test the reliability of the evidence, if there is no demonstrable reliability then the Chamber should carefully consider if the evidence should be excluded at that juncture.42 The Pre-Trial Chamber in Katanga addressed the controversies which had arisen in relation to reliability of evidence in the ICTY and other ad hoc tribunals, as to whether reliability should be considered as an additional and separate component of the admissibility test or considered a part of the overall determination of admissibility. The Chamber decided on the approach it believed was most consistent with Rule 63(2), which is that reliability should be considered ‘as a component of the evidence when determining its weight.’43
The current admissibility test was confirmed by the Appeals Chamber in the Bemba case. The Trial Chamber in Bemba ruled incorrectly that all list evidence and all witness statements prior to the beginning of the trial were prima facie admissible, with the determination on probative value and prejudicial effect to be made when the Trial Chamber made its final judgment.44 The Appeals Chamber accepted that the Trial Chamber has a choice to rule on admissibility as each piece of evidence is submitted during the trial, or to
41
Lubanga, (n.33), ICC T.C. I, 13 June 2008 (I), para. 28, (Referring to: Aleksovski, ICTY A.C., (IT-95-14/1) Decision on prosecutor's appeal on admissibility of evidence, 16 February 1999, para. 15)
42 Lubanga, ibid, paras. 29-30, (Referred to by Tochilovsky, The Law and Jurisprudence of the International
Criminal Tribunals and Courts, 2014, p. 779-780)
43
Katanga & Ngudjolo, ICC P.T.C. I, (ICC-01/04-01/07), Decision on the confirmation of charges, 30 September 2008, paras. 77-78, (Referring to May & Wierda, International Criminal Evidence, 2002, p. 109, para. 4.41; See also: Delalić et al, ICTY T.C., (IT-96-21), Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, paras. 19–20)
44
Bemba, ICC T.C. III, (ICC-01/05-01/08), Decision on the admission into evidence of materials contained in the prosecution's list of evidence, 19 November 2010, paras. 8-10
12 wait until the end of the proceedings to determine admissibility and relevance as a part of its overall evaluation. However, according to Article 64(2) the proceedings must still be ‘fair and expeditious and conducted with the full respect’ for the rights of all relevant parties. This requires the Trial Chamber to carefully consider how it balances its discretion in this regard, particularly if one of the parties raises an issue regarding relevance or admissibility during the trial.45 Regardless of the approach the Trial Chamber opts for it is still required under Article 69(4) to apply the three-pronged admissibility test to each piece of evidence at some stage of the proceedings. Since Rule 64(2) of the RPE states that a Chamber must provide reasons for its rulings on evidentiary matters, the Trial Chamber in Bemba erred by not undertaking an item-by-item analysis before concluding that all evidence was admissible.46 It is clear from this case that a summary assessment of admissibility would be unfair to both the prosecution and defence, and the Court has correctly remedied this issue. For instance, despite the obvious unfairness exclusion of the evidence in question would be illogical and inappropriate. The more sensible and reasonable approach has been applied, which ensures the Court must assess each piece of evidence individually.
3.3. Exclusion of Evidence
It is clear from the discussion so far that there is no mandatory exclusionary rule in the Rome Statute or the RPE, and accordingly evidence will only be excluded pursuant to Article 69(4) following an exercise of discretion by the judge or chamber. Evaluating the exclusion of evidence is an important part of determining how the balance is struck between the admissibility of evidence and the protection of the rights of the accused. Article 69(7), regarding illegally or improperly obtained evidence, is the closest the Statute comes to an exclusionary rule. Although as will be discussed, the application of this provision is still solely left to the judges based on the particular facts of the case before them. It is also useful to observe how the Court applies the admissibility test to other types of evidence. For example with the treatment of hearsay evidence, which often cited as an example of the difference between the evidentiary aspects of adversarial and inquisitorial systems. From an international perspective, the treatment of hearsay evidence is a useful acid test for analysing
45
Bemba, ICC Appeals Chamber, (ICC-01/05-01/08), Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled “Decision on the admission into evidence of materials contained in the prosecution's list of evidence”, 3 May 2011, para. 37; Federova, M., The Principle of Equality of Arms in International Criminal Proceedings, Intersentia 2012, p. 408-409
13 and defining the evidentiary system of the Court. The preference for oral testimony contained in Article 69(2) is also relevant, particularly since exceptions are allowed for video or audio testimony. This provision aims to maintain the balance of the occasionally competing needs of public hearings, the interests of victims and the rights of the accused.
3.3.1. Illegally or Improperly Obtained Evidence
As discussed above, earlier versions of Article 69(7) would have excluded all evidence obtained by means of a violation of the Statute or internationally recognised human rights. However the two conditions to this exclusion were added in the final version. Under this provision the mere fact of a violation is not enough for the evidence to be inadmissible. Either the violation must cast substantial doubt on the reliability of the evidence, or admitting the evidence would be antithetical to and would seriously damage the integrity of the proceedings.47 The discretionary nature of this Article was explicitly confirmed by the Pre-Trial Chamber in Lubanga, asserting again that the judges have the power to determine the balance between the Statute’s fundamental values on a case by case basis.48 The Pre-Trial Chamber’s decision elucidated the meaning of Article 69(7) and specified when violations occurring during the collection of evidence will reach the threshold of requiring exclusion. At the outset it is important to note that the violation need not be of the human rights of the accused, but could be a violation of the rights of a third person for the purposes of this provision.49 This is logical as artificially separating such violations would undermine the wider responsibility of the Court to ensure the protection of international rights and not be seen to be condoning State violations of those rights.
The challenge by the Defence during the Lubanga confirmation hearing concerned a seizure of evidence from the accused’s home, as a result of a search that was later ruled as unconstitutional by a Congolese court.50 The Chamber made it clear that it will not be bound by evidentiary findings at a national level. Such findings will not require exclusion of the evidence. Instead the Chamber must consider whether such a seizure constitutes a violation of international human rights law.51 In making its determination in the present case, the
47
Article 69(7)(a) & (b), Rome Statute
48 Lubanga¸ ICC P.T.C., (ICC-01/04-01/06), Decision on the confirmation of charges, 29 January 2007, para 84 49 Lubanga, ICC T.C. I, (ICC-01/04-01/06), Decision on the admission of material from the “bar table”, 24 June
2009, para. 37
50
ibid, paras. 62-63
14 Chamber based its reasoning on the recognised right to privacy in a number of international treaties.52 The Chamber concluded that the seizure was not a violation of any fundamental international human rights norms, but it did breach the principle of proportionality as recognised by the European Court of Human Rights.53 The Chamber were then left to consider if this violation was sufficiently severe to warrant the exclusion of the seized evidence. As to the first consideration concerning reliability, the Chamber felt that the even if the search and seizure had been proportional, the content of the evidence seized would not have been different, and thus the reliability of the evidence was not affected.54 With regard to the second limb, the Chamber were of the view that only a serious human rights violation would warrant the exclusion of the evidence on this basis and that the integrity of the proceedings would not be affected by admitting the evidence.55 Klamberg suggests that the defects in obtaining evidence in such cases may instead go to the weight given rather than to the admissibility of that evidence.56
3.3.2. Hearsay Evidence
Hearsay evidence will normally meet the threshold of the current admissibility test, and it has specifically been confirmed as being generally admissible by the Pre-Trial Chamber.57 Such evidence may appear in the form of a witness testifying about the experiences of another person or in the form of a written statement of a witness who will not appear before the Court.58 Compared to the general exclusion of evidence in domestic adversarial systems, the general admission of hearsay evidence in the ICC might at first be jarring for the common law lawyer. However, considering the rationale of the rule against hearsay, and the numerous exceptions to the rule in common law courts, it may be reasonable to conclude that a comparable level of fairness is achievable when instead professional judges
52 ibid, para. 74, (Referring to: Article 17 of the International Covenant on Civil and Political Rights, Article 8
of the European Convention on Human Rights, and Article 11 of the American Convention on Human Rights)
53 ibid, para 75, (Referring to: Camenzind v Switzerland (Application No. 21353/93), ECHR, Judgment 16
December 1997, para 45) & paras. 81-82
54 ibid, para 85 55 ibid, para 86
56 Klamberg, (n.5), p. 406 57
Katanga & Ngudjolo, (n.43), ICC P.T.C. I, 30 September 2008, para. 137
15 assess and weigh hearsay evidence.59 Since hearsay evidence is perceived as unreliable in the national courts of both common and civil law systems,60 so too in the ICC is it considered less reliable than direct testimony, and thus it is granted less probative value.61
The approach taken by the Court goes back to the discussion on the ‘indicia of reliability’ referred to by the Trial Chamber in Lubanga.62 The Trial Chamber assessed the hearsay evidence in this case under the same admissibility criteria, acknowledging that the context and character of the evidence will have an influence on its probative value.63 The Pre-Trial Chamber has endorsed the approach in Lubanga, cautioning against affording too high a probative value to hearsay evidence but acknowledging that even anonymous hearsay evidence may be useful in corroborating other evidence in the record.64 Although some commentators contend that there is no need for a stricter hearsay rule to protect professional judges at international tribunals,65 there has also been some criticism of the approach taken by the Court which will be discussed in further detail below.
3.3.3. The Principle of Orality and the Immediacy Principle
Article 69(2) of the Rome Statute sets out the general preference for testimony to be given in person, subject to the protections for victims and witnesses contained in Article 68(2) and the RPE. The Trial Chamber in Bemba gave a broad interpretation to the phrase ‘given in person’, stating that this wording does not indicate that witness testimony must necessarily be given live in court. Instead, the Chamber seemed to focus on the ability of the defence to examine the witness testifying against them, pursuant to Article 67(1)(e), and were of the opinion that this right could be satisfied as long as the video and audio technology properly allowed the cross examination of the witness. The Chamber reiterated that it has a broad discretion to allow the exceptions provided for by Rule 67(1) of the RPE, as long as
59 Karnavas, Gathering Evidence in International Criminal Trials, in: International Criminal Justice, 2007, p.
109, (Referring to the exceptions to hearsay contained in the US Federal Rules of Evidence)
60 ibid, p. 108 61
Bemba, (ICC-01/05-01/08), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 51
62 See (n.41)
63 Lubanga, (n.33), ICC T.C. I, 13 June 2008 (I), para. 28 64
Katanga, (n.43), ICC P.T.C. I, 30 September 2008, paras. 139 & 140
16 this exercise of discretion does not prejudice the rights of the accused.66 This decision endorsed a previous ruling of the Trial Chamber in the Lubanga case, 67 and shows that this flexible application of Article 69(2) is rooted in the legal framework of the Court.68
This interpretation of Article 69(2) becomes clearer when viewed through the lens of Article 74(2). This Article states that the Court may base its decision only on evidence submitted and discussed before it at the trial. In the light of this provision, the rationale for the Court’s interpretation of Article 69(2) seems to be that it is preferable to flexibly accommodate the provision of live testimony, even by video or audio link, in order to secure the best evidence during the trial proceedings. Given that the first-hand impressions of the judges over the course of the proceedings will be decisive in the final judgment,69 it is in the interest of the Court to ensure such impressions are based on a thorough examination of all available evidence. A number of commentators agree that this is an essential function of the Court given the practical and legal intricacies inherent in international criminal proceedings.70
3.4. Challenging a Decision on Admissibility
According to Rule 64(1) of the RPE, any challenge to the admissibility or relevance of a piece of evidence must be raised at the time the evidence is submitted to the Chamber, with the exception if an issue was not known at the time, which may be raised as soon as it becomes known. Following such a challenge, the burden of proving admissibility and relevance rests with the party seeking to introduce the challenged piece of evidence.71 Regarding the timing of such challenges, the Pre-Trial Chamber clarified that any contentious matters regarding evidence could be raised prior to the evidence being presented, given the practical requirement of providing written notice of the issue. In fact to ensure a fair and expeditious process, the Chamber specified that the moment the evidence was presented at
66 Bemba, ICC T.C. III, (ICC-01/05-01/08), Redacted Decision on the "Request for the conduct of the testimony
CAR-OTP-WWWW-0108 by video-link" of witness, 12 October 2010, paras. 10-12
67 Lubanga, ICC T.C. I, (ICC-01/04-01/06), Decision on various issues related to witnesses' testimony during
trial, 29 January 2008, para. 41
68 Klamberg, (n.5), p. 368 69 Article 74(2), Rome Statute
70 Klamberg, (n.5), p.368; Bohlander, Evidence before the International Criminal Court, ERA-Forum 2005/4, p.
545; Ambos, The Structure of International Criminal Procedure, in International Criminal Justice, 2007, p. 493
17 trial was the last opportunity to raise an issue under Rule 64(1).72 In a later decision in the same case the Pre-Trial Chamber acknowledged in light of Article 64 and Rule 63 granting the Trial Chamber the power to rule on evidence, that Pre-Trial Chamber rulings on admissibility and relevance could be reassessed at the trial.73 The extent of the ability to reassess a previous order under the exception contained in Rule 64(1) was considered by the Trial Chamber in Lubanga, following a dispute on the numbering of defence exhibits. The majority of the Chamber were of the opinion that the purpose of the rule is to regulate substantive admissibility challenges, not to correct administrative mistakes.74 With regard to administrative issues, the Chamber felt that to guarantee a fair and expeditious trial the Court must have the power to alter procedural orders as the case unfolds.75 On the issue of altering a previous decision on substantive matters of law or fact, the Chamber balanced the need for procedural certainty against the need to maintain public confidence in the criminal justice system. The majority concluded, based on jurisprudence from the ad hoc tribunals and national legal systems, that ‘irregular decisions can be varied if they are manifestly unsound and their consequences are manifestly unsatisfactory.’76
Judge Blattmann delivered a dissent on the reasoning in the Lubanga decision regarding the application of the exception in Rule 64(1). He especially took issue with reading ‘inherent discretionary powers’ into the law.77 His opinion is not only valuable in the context of the evidentiary rules, it also informs the discussion on the balance between competing common and civil law systems. Judge Blattmann submitted that the Rome Statute and the RPE were deliberately drafted to create a more rigid system than the ad hoc tribunals, with the intention of providing more procedural certainty and limiting judicial discretion.78 He specifically considered the majority interpretation of Rule 64(1) as only concerning ‘substantive admissibility challenges’ to be incorrect. Certainly, a contextual reading of Rule 64(1) with the wording in Rule 64(2), which indicates it covers ‘evidentiary matters’, covers
72
Lubanga, ICC P.T.C., (ICC-01/04-01/06), Decision on disclosure by the defence, 20 March 2008, para. 36
73 Lubanga, ICC P.T.C. I, (ICC-01/04-01/06), Decision on the Prosecution and Defence applications for leave to
appeal the Decision on the confirmation of charges, 24 May 2007, para. 32
74 Lubanga, ICC T.C. I, (ICC-01/04-01/06), Decision on the defence request to reconsider the "Order on
numbering of evidence" of 12 May 2010, 30 March 2011, para. 10
75 ibid, para. 13 76 ibid, paras. 14-18
77 Lubanga, ICC T.C. I, (ICC-01/04-01/06), Separate Opinion of Judge René Blattmann to the Decision on the
defence request to reconsider the "Order on numbering of evidence" of 12 May 2010, 30 March 2011, para. 1
18 a much broader range of issues than simply ‘admissibility of evidence’.79 The interpretation of this Rule, Judge Blattmann contends, undermines the legislative intent to ensure fairness by not considering irrelevant or inadmissible evidence in the final deliberations. This broader purpose of Rule 64 and Article 64(2) is frustrated by the majority interpretation, as failing to address administrative issues could also lead to evidence being unfairly admitted to the proceedings. Judge Blattman’s method of conforming to the statutory powers of the Court seems to be the more sensible approach for the Court to take in interpreting the law.80 The rationale of this opinion could certainly be applied in the Court’s interpretation of the provisions allowing broad judicial discretion, to ensure that the exercise of this discretion does not go beyond the legislative intention of the drafters.
4. HUMAN RIGHTS CONSIDERATIONS: THE RIGHT TO A FAIR TRIAL AT THE ICC
4.1. Overview
A crucial element of the Court’s admissibility test is the interpretation and application of the ‘rights of the accused’, which are contained in Article 67 of the Rome Statute. This section will discuss some of the more specific aspects of these rights, as they intersect with the admissibility of evidence during trial proceedings. This is by no means a comprehensive account of all defence rights, rather some illustrative examples which are relevant to the present discussion of admissibility rules. This section will specifically discuss the principle of equality of arms and the defence right to examine witnesses. The practical application of defence rights at trial is greatly influenced by Article 21(3) of the Statute, which provides that all law applied and interpreted by the Court must be consistent with internationally recognised human rights. Article 21(3) is not necessarily a separate source of law, instead it makes all the applicable law subject to compliance with internationally recognised human rights.81 This provision opens the door for the Court to apply and endorse interpretations of the ‘right to a fair trial’ of international human rights bodies, as it has done, which has implications for both substantive and procedural aspects of trial proceedings.
79 ibid, para. 20
80 Klamberg, (n.5), p. 362 81
Schabas, (n.34), p. 385; Pellet, (n.21), p. 1079; Sheppard, The International Criminal Court and ‘Internationally Recognized Human Rights, Int.C.L.R. 2010/1, p. 46
19 Another important facet of this issue is the extent to which the right to a fair trial governs proceedings at the ICC in comparison to the extent to which those same rights are protected in domestic proceedings; with some arguing that the rights for the defence should not be as strong as in a domestic setting.82 Although of course there are significant variations between national systems, there is also a basic level of protection for the right to a fair trial throughout both adversarial and inquisitorial systems. These fair trial rights can originate from national constitutions or from international or regional instruments. Given the difficult circumstances in which the ICC must operate, there is a debate as to how far such domestically focused norms should be applied by the Court.83 National systems indeed have greater capacity to enforce protection of human rights and ensure equality than an international tribunal. As the ICTY observed with regard to equality of arms of arms doctrine, this invariably means that the concept must be given a more liberal interpretation than is the case at a domestic level.84 This example illustrates the unique challenges that are faced by the Court in attempting to balance the right to a fair trial with other practical considerations, such as the need for State cooperation in obtaining evidence. The ICC does share similar objectives with national justice systems, however the singular challenges faced by the Court cannot be met by simply extracting general principles from domestic law.85 These issues will be discussed further in the following section.
4.2. Equality of Arms
The right to a fair trial is closely linked with the concept of equality of arms, which according to the Pre-Trial Chamber is ‘the ability of a party…to adequately make its case, with a view to influencing the outcome of the proceedings in its favour.’86 The equality of arms doctrine is not always uniformly defined by academics,87 but in essence the term implies that both parties to a dispute begin the proceedings on an equal procedural footing
82 Pizzi, Overcoming Logistical and Structural Barriers to Fair Trials at International Tribunals, International
Commentary on Evidence 2007/1, Article 4, p. 3-4
83 Jackson, (n.6), p. 23; Deprez, Extent of Applicability of Human Rights Standards to Proceedings before the
International Criminal Court, Int.C.L.R. 2012/4, p. 741
84Tadić, ICTY A.C., (IT-94-1-A), Judgment, 15 July 1999, paras. 51-52 85
Klamberg, (n.5), p. 489-490, (Referring to: Friman, Procedural Law of Internationalized Criminal Courts, in: Internationalized Criminal Courts, 2004, p. 326);
86 Situation in Uganda (ICC-02/04-01/05), Decision on Prosecutor’s Application for leave to Appeal in Part
Pre-Trial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest under Article 58, 19 August 2005, para. 30
20 with an equal chance of winning their case. The equality of arms doctrine is encompassed by the many elements of a fair trial that are laid out in Article 67(1). By virtue of Article 21(3), the right to a fair trial in this instance is also informed by international human rights law, for example the rights contained in Article 14 of the International Covenant on Civil and Political Rights or Article 6 of the European Convention on Human Rights. What is not immediately apparent is where the fair trial guarantees sit in the overall hierarchy of norms of the Court when there is a conflict with applicable law. Considering the inclusion in Article 67(1) of the term ‘having regard to the provisions of this Statute’, it is conceivable that other applicable law may be incompatible with Article 67, however it is not clear what course of action the Court may take to redress such a conflict when it is not explicitly dealt with by the Statute.88 It may be the case that the Court will declare conflicting provisions to be inoperative, however any potential approaches are merely speculative until such a circumstance is addressed by the Court.
Schabas observes that some provisions do tip the scale to the benefit of the accused,89 however this would appear to be necessary to restore balance given the institutional benefit the Prosecutor has as an official organ of the Court.90 For example, the predominant position of the Prosecutor at the investigation phase necessitates rules such as the disclosure of evidence by the Prosecutor to the defence.91 According to Article 67(2), evidence in the Prosecutor’s possession which tends to show the innocence or mitigates against the guilt of the accused must be disclosed to the defence. In addition under Article 64(3)(c), the Trial Chamber has the duty to order disclosure of previously undisclosed evidence to enable adequate preparation for trial. The Trial Chamber acknowledged that there is potential for tension between the powers of the Prosecutor to withhold evidence in certain circumstances and the defence right of disclosure. However it considered that this tension could be minimised by the Prosecutor only exercising its power in limited circumstances and by striving to reach agreements with confidential witness which also allow the disclosure of essential exculpatory evidence.92 The Trial Chamber drew on the jurisprudence of the ICTY
88 Schabas, (n.34), p. 795-796 89 ibid, p. 799
90
Caianiello, (n.87), ‘First Decisions’, 2011, p. 390-391
91 Acquaviva, et al., Trial Process, in: International Criminal Procedure: Principles and Rules, 2013, p. 799 92 Lubanga, ICC T.C. I, (ICC-01/04-01/06), 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, 13 June 2008 (II), para. 76; Deprez, (n. 83), p. 728
21 and the European Court of Human Rights to reinforce the fact that evidence cannot be withheld if it would deny the defence a fair trial.93 The Appeals Chamber in Bemba also considered disclosure of essential evidence to be vital in ensuring there is equality of arms and a fair adversarial procedure.94
This balance between the powers of the Prosecutor and the defence rights is particularly important given the unique mix of inquisitorial and adversarial elements at play throughout the investigation and trial stages. With this in mind, it is clear that equality of arms does not mean that parties should be given the same privileges, instead it suggests that different rules may be required in order to grant each side with the same opportunity to properly present its case.95 This inevitably leads to examining whether the Court have adequately addressed the unequal positions of the Prosecutor and the defence. The investigative stage of ICC proceedings bears the characteristics closer to an inquisitorial system, with the Prosecutor having the power to select which situations to investigate and pursue to trial.96 Since the trial is structured as an adversarial proceeding,97 in order to safeguard the rights of the accused the Prosecutor should not be allowed to benefit at trial from its advantageous position during the investigative stages. The counter-argument to this idea is that the defence may very well be in a position to conduct its own investigations and may not suffer any actual disadvantage. However, as Caianiello points out, it is not enough for the defence to be in a de facto equal position with the Prosecutor, to properly guarantee equality of arms it must be shown that there is institutional equality between both sides.98 These criticisms and potential solutions will be discussed in further detail below.
4.3. Right to Examine Witnesses
The right of the defence to examine witnesses is a part of the equality of arms doctrine, however it is particularly significant in the context of the admissibility of hearsay
93
ibid, paras. 77-81
94 Bemba, ICC A.C., (ICC-01/05-01/08), Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the
decision of Pre-Trial Chamber III entitled "Decision on application for interim release", 16 December 2008, para. 32, (Referring to: Garcia Alva v. Germany, (Application No. 23541/94), ECHR, Judgment, 13 February 2001)
95 Caianiello, (n.87), ‘First Decisions’, 2011, p. 390 96 Article 53, Rome Statute
97 Caianiello, (n.87), ‘First Decisions’, 2011, p. 393-394; Katanga & Ngudjolo, ICC T.C. II, (ICC-01/04-01/07),
Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, 20 November 2009
22 and untested documentary evidence so it is worthwhile discussing it as a partly separate issue here. This right is explicitly provided for by Article 67(1)(e), which the Appeals Chamber has confirmed establishes the adversarial nature of the trial.99 On this basis, arguably the only way to ensure fairness of this adversarial proceeding with the right to examine witnesses would be to exclude any unchallenged evidence collected by the Prosecutor at the investigative stage.100 The formal rules favouring the principles of orality and immediacy in the ICC should guarantee to a large extent the defence right to examine witnesses,101 however there are also extensive exceptions allowing admissibility at trial of untested evidence collected during the pre-trial stages.
The limitations on the right to examine witnesses set out by the Rome Statute mainly enable the Court to protect witnesses by allowing the presentation of evidence by electronic or other special means.102 These acceptable limitations notwithstanding, the only other applicable protection for the right to examine witnesses comes from the last sentence of Article 69(2), that any action taken by the Court ‘shall not be prejudicial to or inconsistent with the rights of the accused’. With the practice of the Court showing that unchallenged evidence is not automatically excluded and is subject to the ordinary admissibility test, it is not clear if this exercise of judicial discretion is enough to adequately protect the right of the defence to examine witnesses.
5. CRITICAL ANALYSIS OF THE CURRENT ADMISSIBILITY TEST: WHAT IS THE IMPACT OF BROAD JUDICIAL DISCRETION ON THE RIGHT TO A FAIR TRIAL?
5.1. Overview
In order to properly analyse the current admissibility test, it is important to briefly summarise some of the aims of the Court. This is in order to determine whether or not the present evidentiary rules positively contribute to achieving these aims. Klamberg has conducted a thorough study of potential objectives of international criminal proceedings from
99 Lubanga, ICC A.C., (ICC-01/04-01/06), Decision of the Appeals Chamber on the Joint Application of
Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007, 13 June 2007, para. 18
100 Caianiello, (n.87), ‘First Decisions’, 2011, p. 390 & 398, n.36; Caianiello, (n.24), ‘Law of Evidence’, 2011,
p. 295
101
Article 69(2), Rome Statute
23 the works of scholars in this area. He has identified these goals to be: crime control, fair trial, expeditious proceedings, State sovereignty, truth-seeking, victims’ participation and witnesses and victims protection.103 By ascertaining some probable aims of the Court structure, it provides context for analysing whether or not the system is achieving its objectives. Not all of the objectives on Klamberg’s list are necessarily relevant for the scope of the present discussion, however it is useful to examine the Court’s jurisprudence in light of the distinct objectives of crime control, truth-seeking and victim protection, with those of a fair trial and expeditious proceedings.
Certainly one of the main stated purposes of the Court is to end impunity for the ‘most serious crimes of international concern’,104 which is quite clearly an objective of crime control. The concept of crime control is generally associated with inquisitorial models of efficiency in the criminal process to ‘screen suspects, determine guilt and secure appropriate treatment of convicted persons’.105 It is also important for ICC trials to search for the truth, although the interpretation of the concept of truth differs between adversarial and inquisitorial systems, as do the methods for reaching the truth.106 In a domestic adversarial system, judges do not have the power to actively seek the truth at trial, however in an inquisitorial system, the judge takes on a truth-finding role with the power to intervene in the proceedings.107 Articles 54(1)(a) and 69(3) place the responsibility for finding the truth on both the Prosecutor and the judges respectively. The difference between common and civil law systems is also apparent in the role the victim plays in the proceedings. At a national level, in common law systems the victim does not have the right to join in criminal proceedings, whereas in civil law systems it may be possible for the victim to participate to obtain reparations or retribution.108 The situation is different at the ICC, where the protection of victims is also an important aim; victims’ views may be presented to the Court, as long as this does not prejudice the rights of the accused.109 By comparison, the fair trial objective reflects the aim of an adversarial trial model, with the accused facing a public and impartial trial, and
103 Klamberg, (n.5), p. 48-50 104 Article 1, Rome Statute
105 Klamberg, (n.5), p. 52 (Referring to: Packer, Two Models of the Criminal Process, U.Pa.L.Rev. 1964/1, p.
10)
106 Pizzi, (n.82), p. 1; Gaynor, Uneasy Partners – Evidence, Truth and History in International Trials, JICJ
2012/5, p. 1259
107 Klamberg, (n.5), p. 58-59 108
ibid, p. 60; Zappalà (n.7), p. 219 & 225
24 being afforded a full opportunity to discredit the case against them.110 On the issue of expeditious proceedings, it has been argued that international courts will have a longer period of time before this right is deemed to be violated, based on specific problems encountered when compared with a national system.111 With regard to evidentiary rules, fair trial considerations are indeed important in dictating the structure of trial proceedings, however it is also apparent that the Court will need to balance this right with other important objectives.112 This is a more delicate exercise than that conducted by national courts, although the objectives may be comparable.
Indeed no system can or should adhere to only one objective, nonetheless such analysis provides a base from which to examine the success or otherwise of the procedural activities of the Court. The criticism of the Court’s current position on admissibility of evidence can be set out in three steps. Firstly, there is an argument that there is too wide a scope granted by the Statute for judicial discretion in admitting or excluding evidence. Secondly, this judicial discretion has led to an interpretation of the rules creating an environment of procedural uncertainty for accused persons. Thirdly, the broad discretion and resulting uncertainty risk the creation of a system with a general adversarial trial structure, which should ensure equality of arms between the parties, but instead undermines this position by inserting inquisitorial elements at crucial parts of the proceedings.113
5.2. Judicial Discretion
As has been discussed above, the rules for admitting or excluding evidence are subject to an exercise of discretion by the trial judges.114 This discretion requires a balancing act of the right to a fair trial with the interests of protecting the victims. The competition between these rights is especially pronounced with regard to the treatment of hearsay and other untested evidence, which is not subject to any automatic exclusionary rules. The oft cited logic behind the lack of a strict exclusionary rule is that professional judges, as in the setting
110
Klamberg, (n.5), p. 53, (Referring to: Packer, H.L., Two Models of the Criminal Process, University of Pennsylvania Law Review, 1964/1, p. 9 and 14)
111 Klamberg, (n.5), p. 58, (Referring to: Wladimiroff, Rights of Suspects and Accused, in: Substantive and
Procedural Aspects of International Criminal Law, 2000, p. 440)
112
Lubanga, ICC A.C., (ICC-01/04-01/06), Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled "Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU", 8 October 2010, para. 50
113
Caianiello, (n.87), ‘First Decisions’, 2011, p. 409
25 of the ICC, do not need the same protections from prejudice as a lay jury do.115 The predominant academic support for such judicial discretion is based on the argument that professional judges are unlikely to overestimate the probative value of less reliable evidence.116 This line of thought also concludes that the requirement for judges to provide written justification for their decisions is enough to identify erroneous evaluation of evidence. The glaring flaw in this supposition is that even if the written justification effectively identifies inaccuracies it does not offer any remedy for these mistakes or the systemic defects such mistakes may indicate.
Caianiello convincingly disposes of the idea that professional judges are somehow more skilled in detecting unconvincing and unchallenged testimonial statements, comparing it to the debate about whether judges can detect interferences with witness testimony through witness proofing.117 Although as mentioned, it is often put forward that professional judges have the capacity to appropriately balance any evidence presented to them.118 One of the counter-arguments is that the trust in judges is based on the false assumption that international criminal judges are in fact always trained professional judges. In reality, the ICC judicial eligibility test has been generously interpreted and does not guarantee this.119 Similar observations were made by Patricia M. Wald, former ICTY judge, who felt that judges are not automatically imbued with an ability to discern if a written statement is true or false, and to admit evidence which cannot be tested threatens the reputation for fairness and truth seeking.120 Caianiello extends the rationale of this argument to apply to hearsay evidence, and determines that if there is reasonable dispute as to the judicial ability to assess the veracity of statements given by witnesses live in court then this is no doubt made more difficult when it is not possible to verify the reliability of an untested out of court statement.121 Indeed, these shortcomings may not exist in every case, however it brings up the debate once again whether de facto protection of the right to a fair trial in each case is
115 Ambos, (n.3), p. 30; Safferling, (n.34), p. 496
116 Caianiello, (n.24), ‘Law of Evidence’, 2011, p. 304 (referring to: May & Wierda, (n.43), p.117-119)
117 Caianiello, ibid, p. 307; Ambos, ‘Witness Proofing’ Before the International Criminal Court, LJIL 2008/4, p.
915
118 Karemaker et al., Witness Proofing in International Criminal Tribunals, LJIL 2008/3, p. 696
119 Article 36(3)(b), Rome Statute; Ambos, (n.117), p. 915; Wessel, Judicial Policy-Making at the International
Criminal Court, Colum.J.Transnat'l L. 2006/2, p. 449-450
120
Wald, ICTY Judicial Proceedings, JICJ 2004/2 p. 473
26 enough or whether the practice and procedures of the Court should ensure structural and institutional equality.122
5.3. Procedural Uncertainty
A fair trial procedure requires a coherent and predictable legal framework to provide certainty to both the Prosecutor and the accused person.123 The extensive judicial discretion allowed for in the Rome Statute, and subsequently confirmed by the practice of the Court, inevitably gives rise to procedural uncertainty for accused persons on trial before the ICC.124 Although it is possible for the Court to consider the interpretation of principles and rules from previous decisions,125 it is by no means obliged to do so. This gives rise to a further degree of unpredictability in how future cases may be interpreted. The Court has consistently affirmed that with regard to the provisions of Article 69, it will deal with issues on a case by case basis.126
As Judge Blattmann observed in his dissenting opinion cited above, the Court was established to be more rigid to judicial amendment and interpretation compared with the earlier ad hoc tribunals.127 Judge Blattmann advocated a plain interpretation rather than reading inherent powers into the rules.128 The majority position in this case illustrates the risk with differing approaches to applying inherent powers, judicial precedents from other trial chambers and courts, and selective domestic legal traditions, as this will invariably result in procedural uncertainty.129 Given that the drafters of the Rome Statute and the RPE went against the trend of international criminal practice,130 it appears that their clear intention in establishing a permanent institution was indeed to provide greater certainty in the process than had previously been the case. Another commentator contends that if we suppose that the
122 ibid, p. 308-309
123 Croquet, The International Criminal Court and the Treatment of Defence Rights, H.R.L.Rev. 2011/1, p. 92 124
DeFrancia, Due Process in International Criminal Courts, Va.L.Rev. 2001/7, p. 1402
125 Article 21(2), Rome Statute
126 Lubanga, ICC T.C. I, (ICC-01/04-01/06), Decision on various issues related to witnesses' testimony during
trial, 29 January 2008, para. 41; Cassese et al (eds), The Rome Statute of the International Criminal Court, 2002, p. 1297; Zappalà, (n.7), p. 149
127 See p. 15-16 above; Lubanga, (n.77), Separate Opinion of Judge Blattmann, 30 March 2011, para. 7,
(Referring to: Pellet, (n.21), p. 1064.)
128 ibid, paras. 21-22 129
Klamberg, (n.5), p. 362; Zappalà, (n.7), p. 151
27 purpose of having rigorous rules in a criminal justice system is to ensure that justice is done without the appearance of abuse of power, then lowering the standard of evidentiary rules at an international level does not appear to be sensible.131 In a recent case the Appeals Chamber quoted Judge Blattmann’s dissenting opinion with approval, but only in relation to the interpretation of the power to compel witnesses to appear before the Court.132 To date this reasoning has not been applied with regard to the admissibility test, although it may indicate a willingness for the Court to re-examine the test based on this reasoning in the future.
5.4. Meeting the Aims of the Court
The jurisprudence of the Court to date clearly considers the right to a fair trial to be of significant importance, however the broad judicial discretion for interpreting the extent of this right in practice seems to somewhat undermine this position. The lack of a strict exclusionary rule leaves open the possibility of untested out-of-court evidence being admitted at trial and the current approach fails to adequately address the disparity between the positions of the Prosecutor and the defence prior to the trial.133 The same is true with regard to illegally or improperly obtained evidence, as the threshold for excluding such evidence remains subject to an exercise of judicial discretion in each case. Furthermore, it is not immediately apparent that the lack of an effective exclusionary rule in fact achieves the aims of the Court.
Zappalà puts forward two objectives that exclusionary rules may pursue. An exclusionary rule either aims to impose standards of behaviour between the parties, thus providing a procedural sanction for violation of those rules, or it is linked to the belief that certain types of evidence are unsuitable for discovering the truth, and so will exclude evidence such as hearsay as a matter of principle.134 With regard to the ICC, there are minimal sanctions for the violation of procedural rules and there is no mandatory exclusionary rule for intrinsically unreliable evidence. Zappalà argues that credibility for the outcome of a trial is based on respect for the rules and the pre-determined methods for finding the truth. If judges are left to apply the rules on a case-by-case basis then the method becomes less pre-determined and the rules begin to lose their credibility as a method of
131 Zappalà, (n.7), p. 150
132 Ruto et al, ICC A.C., (ICC-01/09-01/11), Defence appeal against the “Decision on Prosecutor’s Application
for Witness Summonses and resulting Request for State Party Cooperation”, 5 June 2014, para. 24
133
Caianiello, (n.87), ‘First Decisions’, 2011, p. 409-410; Caianiello, (n.24), ‘Law of Evidence’, 2011, p. 318
