Does Amended Rule 68(2)(d) RPE ICC reconcile with fair trial guarantees provided by the International Criminal Court, in light of the problems of witness interference in International Criminal Law?

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LLM International and European Law

Thesis

“Does Amended Rule 68(2)(d) RPE ICC reconcile with fair

trial guarantees provided by the International Criminal

Court, in light of the problems of witness interference in

International Criminal Law?”

Author: Andrew Merrylees

Public International Law Track

Supervisor: Göran Sluiter

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Abstract

In international criminal law there is a growing need to tackle the crippling effect that witness interference is having on the work of institutions such as the International Criminal Court (ICC). One of the measures available to combat such this problem is Amended Rule 68(2)(d) of the Rules of Procedure and Evidence of the ICC. This rule allows for written testimony, in lieu of oral testimony, where the witness has been interfered with to be used at trial. While this may help in countering the effects of witness interference by allowing an interfered with witness’s evidence to be admitted on to the record, in doing so it raises a number of concerns and issues with the

accused’s fundamental fair trial guarantees. On face value it would appear that the use of Amended Rule 68(2)(d) undermines the principle of orality, the right to cross examination and the need to ensure that prejudicial evidence is excluded from the record, as laid down in Articles 69(2), 67(1)(e) and 69(4) of the Rome Statute respectively. It is this tension between the rights of the accused and need to combat the problem of witness interference which is encapsulated in Amended Rule 68(2) (d) that is the subject of this work, looking at whether Amended Rule 68(2)(d) reconciles with fair trial guarantees provided by the ICC, in light of the problem of witness interference. This thesis explores firstly the problem of witness interference and the inadequacy of existing mechanisms to combat witness interference at the ICC, introducing Amended Rule 68(2)(d) as a means to combat witness interference. Analysis and evaluation will then be devoted to whether this rule corresponds with certain fair trial guarantees for the accused, coming to the conclusion that Amended Rule 68(2) (d) can prejudice the accused’s right to fair trial. This thesis closes by questioning what weight (if any) can be given to the interests of fairness to other actors such as the Prosecution and victims to offset any prejudice to the accused caused by Amended Rule 68(2)(d), and offers Article 56’s “Unique Investigative Opportunity” an alternative. The thesis concludes by noting that Article 56 appears to be a more adequate means to combat the effects witness interference compared with Amended Rule 68(2)(d) given that it better adheres to the accused’s fair trial rights.

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Table of Contents Page

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Introduction 5

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1: The Problem of Witness Interference in International Criminal Law 8

- 1.1: Definition and Overview of the Concept of Witness Interference in 8 International Criminal Law

- 1.2: Witness Interference at the International Criminal Tribunals and Courts 10

- 1.2.1: Witness Interference at the ICTY 10 - 1.2.2: Witness Interference at the ICC 11

- 1.3: Protective Measures and Contempt Proceedings as a Means to Combat Witness 14 Interference?

- 1.4: Amended Rule 68(2)(d) - “Bringing it back in-house” 16

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2: Amended Rule 68(2)(d) and Fundamental Fair Trial Guarantees for the Accused 18

- 2.1: Amended Rule 68(2)(d), the Principle of Orality and the Introduction of 19 Liberal Rules of Evidence

- 2.1.1: Principle of Orality and its changing position in International 19

Criminal Law

- 2.1.2: The Erosion of the Principle of Orality - Rule 22

92bis RPE ICTY

- 2.1.3: Taking the liberalistic trend too far? - Rule 92quater and Rule 23

92quinquies RPE ICTY

- 2.1.4: Is it appropriate for the ICC to follow this liberalistic trend at the 25

ICTY?

- 2.2: Amended Rule 68(2)d) and The Right to Cross Examination 28

- 2.2.1: The Importance and Scope of the Right to Cross Examination in 28

International Criminal Law

- 2.2.2: The Right to Cross Examination and Evidence that Goes to the 29

Acts and Conduct of the Accused

- 2.2.3: Have the Limitations on the Right to Cross Examination gone 31

too far?

- 2.3: The Inherent Reliability of Evidence submitted under Amended Rule 34 68(2)(d)

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- 2.3.2: The Nature of Evidence under Amended Rule 68(2)(d) 35

- 2.3.3: The “Theoretical” Distinction between the Stages of 37

Admissibility and Weight: Issues with the Evidential Process

- 2.4: Concluding Thoughts 39

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3: Amended Rule 68(2)(d) and the Interests of Justice: Solutions and Alternatives 42

- 3.1: Amended Rule 68(2)(d) and Fairness to the Prosecution, Victims and 43 Witnesses: Rights vs Interests

- 3.1.1: Fairness to the Prosecution? 43

- 3.1.2: Fairness to the Victims and Witnesses? 45

- 3.2: Amended Rule 68(2)(d) at a “Legal Crossroads” 47

- 3.3: Article 56 and the “Unique Investigative Opportunity” - An Alternative to 48 Amended Rule 68(2)(d)

- 3.3.1: Article 56 as a means to combat Witness Interference 48

- 3.3.2: Benefits of the Unique Investigative Opportunity 49

- 3.3.3: Drawbacks of the Unique Investigative Opportunity 50

- 3.3.4: Concluding Thoughts on Unique Investigative Opportunity 52

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Conclusion 53

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Introduction

On the 5th April 2016, Trial Chamber V(a) filed its decision on the “no case to answer” motions in the case against William Ruto and Joshua Sang. In its decision the Chamber reluctantly terminated 1 2

the case against the accused. This decision represented the final nail in the proverbial coffin for the 3

“Kenya cases” at the ICC and is indicative of a problem that continues to plague international criminal law, namely that of witness interference. Witness interference has been seen in practically every international criminal institution and its existence can be traced back to the very first case at 4

the ICTY. The effects that witness interference can have on a case can be grave and even prove 5

fatal as demonstrated by the “Kenya cases”. Witnesses play a crucial role at trial, in providing key evidence they fuel the truth finding process of the court and embody some of the key building blocks on which a trial is built. When a witness is interfered with it can lead to them, inter alia, 6

refusing to testify or recanting on the stand, and as a result a case can start to crumble due to the simple fact that without witnesses there can be no trials. Witness interference thus leads to 7

continued impunity and frustrates the international criminal justice process, with courts being unable to fulfil their mandate, and the integrity and confidence in international criminal proceedings being compromised. 8

The question then turns to, what can be done to combat this problem? At the ICC one of the potential solutions can be seen in Amended Rule 68(2)(d) of the Court’s Rules of Procedure and Evidence (RPE) . It is this provision that is the subject of this work. Amended Rule 68(2)(d) 9

provides a means to combat witness interference by allowing for the admission into evidence of

ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for

1

Judgments of Acquittal, T.Ch, 5 April 2016.

Ibid, Reasons of Judge Eboe-Osuji, paras. 2, 3, 141, 156, 183.

2

Ibid, p. 1.

3

See: Chapter 1 below.

4

Specifically the case against Dusko Tadić. See: Marshall, “Balkans War Crimes Trial Opens: But Intimidation of

5

Witnesses Hurts Prosecution's Case”, Montreal Gazette, 8 May 1996; Walker, “The Yugoslav War Crimes Tribunal: Recent Developments”, (1997) Whittier Law Review, Vol. 19, pp. 303-312(308); Lehnardt, “One Small Step for Women: Female-Friendly Provisions in the Rome Statute of the International Criminal Court”, (2002) Brigham Young University Journal of Public Law, Vol.16(2), pp. 317-354(325-326).

de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International

6

Criminal Law Review, Vol. 15, pp. 700-732(714-715). Ibid, pp. 710-714.

7

Ibid, p. 714.

8

Amended Rule 68(2)(d) Rules of Procedure and Evidence of the International Criminal Court (ICC), available at:

9

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prior written testimony, in lieu of oral testimony, where the witness has been subject to

interference. In theory the rule thus helps alleviate the problem where a witness fails to testify, or 10

recants due to interference, greatly weakening and undermining the Prosecution’s case. However, Amended Rule 68(2)(d) is a controversial provision and sits amongst a network of highly relevant legal provisions that regulate the admission of evidence before the ICC and guarantee the right to fair trial. On face value the rule appears to be somewhat at odds with these notions of fundamental 11

fair trial rights and guarantees for the accused, which include, inter alia, the right of accused to cross examine evidence against them. This tension is also exacerbated by the fact that the rule also 12

allows for evidence that goes to the proof of acts and conduct of an accused which could be argued to severely undermine an accused’s ability to answer the case against him/her. 13

It is this overarching tension and competing interests which forms the focus of this thesis, exploring the research question of whether Amended Rule 68(2)(d) reconciles with certain fair trial guarantees provided by the ICC, in light of the problem of witness interference in international criminal law. In order to answer this question this work is split into three parts. The first chapter focuses firstly on the problem of witness interference itself, tracing its prevalence and describing its impact in international criminal law. This chapter looks at some of the measures available at the ICC to combat this issue introducing Amended Rule 68(2)(d) as one of these measures, and analyses what this rule seeks to accomplish in light of this problem. The author also indicates towards the end of this chapter that in pursuit of this aim the rule runs into issues with its legality in relation to the rights of the accused.

This leads on to the second chapter which forms the core of the thesis and analyses whether Amended Rule 68(2)(d) corresponds with certain fair trial guarantees at the ICC, specifically looking at the law relating to the admission of written statements in lieu of oral testimony in international criminal law. This chapter seeks to analyse specifically how Amended Rule 68(2)(d)

See: Amended Rule 68(2)(d) Rules of Procedure and Evidence ICC.

10

International Bar Association, “Rule 68 Amendment Proposal”, IBA ICC Programme Legal Opinion, 12 November

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2013, p. 2 available at: http://www.ibanet.org/Document/Default.aspx?DocumentUid=6B68A33A-5D59-4C82-BE6A-327D44122D4E [Last accessed 16 June 2016].

See, inter alia: Article 14(e) International Covenant on Civil and Political Rights, available at: https://treaties.un.org/

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doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf [Last accessed 16 June 2016]; Article 67(1) (e) of the Rome Statute of the International Criminal Court, available at: https://www.icc-cpi.int/nr/rdonlyres/ ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf [Last accessed 16 June 2016].

Amended Rule 68(2)(d)(iv) Rules of Procedure and Evidence ICC.

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corresponds with the principle of orality and the right to cross examination. The analysis closes by evaluating the general reliability of statements tendered under Amended Rule 68(2)(d) in light of how evidence is handled and processed in an international criminal trial.

The final chapter looks at Amended Rule 68(2)(d) from a different standpoint, analysing it in light of notions of fairness to the Prosecution, victims and the witnesses themselves. The analysis

balances these interests in line with the fair trial rights of the accused. The chapter closes by looking at an alternative to Amended Rule 68(2)(d), namely the “unique investigative opportunity” under Article 56 of the Rome Statute and analyses whether this is preferable to Amended Rule 68(2)(d).

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Chapter 1 - The Problem of Witness Interference in International Criminal Law

It is widely accepted that the testimony of witnesses and victims is the best evidence available in that it allows the court to hear a first hand account of what happened during the commission of a crime. In essence, witnesses are “the human face of international criminal law”. Given their 14 15

important role, witnesses can become targets for interference. This is not only dangerous on a personal level for the witnesses themselves, but also has severe ramifications for the integrity of the trial and the ability of a court to deliver justice in an accurate and impartial manner. The following 16

chapter will provide a generally descriptive overview, look firstly at what specifically is meant by witness interference and the motivations behind it. There will then be some discussion that seeks to trace the problem of witness interference at the ICTY and the ICC, analysing its effects on the judicial process. In light of this discussion the chapter will subsequently analyse what measures there are available to combat the problem and introduce the role that Amended Rule 68(2)(d) plays in trying to counter the effects of witness interference.

1.1 - Definition and Overview of the Concept of Witness Interference in International Criminal Law Witness interference is a broad term that encapsulates a variety of different means by which a witness is tampered with. Primarily, witness interference comprises the situation where a witness, and/or their families, are intimidated through threats, both express and implicit. These threats can 17

take a multitude of forms and can include intimidations, threats of personal injury, an economic and social character and death threats. However, witness interference is not limited to threats and 18 19

there have been a number of instances where witnesses have been attacked and killed on account of

14

Criminal Law Review, Vol. 15, pp. 700-732(701); Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp. 191-203(191).

Ibid, Cryer, p. 192.

15

Trotter, “Witness Intimidation in International Trials: Balancing the Need for Protection against the Rights of the

16

Accused”, (2012) George Washington International Law Review, Vol. 44, pp. 521-537(521).

Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol.

17

27, pp191-203(192); de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(708).

Threats of an economic and social character can include, threats against property or loss of a job or stigmatisation

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within the community. See: Stover, “The Witnesses: War Crimes and The Promise of Justice in The Hague”, (2005), 2nd edition, University of Pennsylvania Press, p. 98.

19

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them testifying before an international criminal tribunal. Nor is witness interference limited to acts 20

of intimidation, it can also include situations of bribery or coercion , and thus the term 21

“interference” is preferred over “intimidation”. Witness interference can occur against any 22

witness, whether they be for the Prosecution or the defence , and can be committed by a multitude 23

of actors, be it the accused themselves , those loyal to the accused, legal counsel , governmental 24 25

forces , the media etc. 26 27

The reasons and motivations behind witness interference may vary depending on the type of

witness, however, arguably the ultimate effect is to force the witness into not testifying, recanting or even changing their testimony. In terms of Prosecution witnesses, this is arguably done with the 28

aim of ensuring that there is no evidence against a particular accused or charge. Similarly, witness 29

BBC News, “Kenya ‘ICC defence witness’ in Ruto’s trial killed”, 6 January 2015, available at: http://www.bbc.com/

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news/world-africa-30703876 [Last accessed 16 June 2016]; allafrica.com, “Kenya: Ocampo Witnesses Escape Death”, 5 January 2010, available at: http://allafrica.com/stories/201001050912.html [Last accessed 16 June 2016]; Amnesty International, “Croatia: Protect War Crimes Witnesses”, 10 February 2011, available at: https://

amnestyconcordia.wordpress.com/2011/02/10/take-action-croatia-protect-war-crimes-witnesses/ [Last accessed 16 June 2016].

See: ICC, Prosecutor v Paul Gicheru and Philip Kipkoech Bett, ICC-01/09-01/15, Decision on the “Prosecution's

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Application under Article 58(1) of the Rome Statute, PT.Ch, 10 March 2015; ICC, Prosecutor v Walter Osapiri Barasa, ICC-01/09-01/13, Warrant of arrest for Walter Osapiri Barasa, PT.Ch, 2 August 2013.

Rule 92quinquies Rules of Procedure and Evidence ICTY uses the term “improper interference” which it defines as

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relating to the “physical economic, property or other interest of the person or of another person”, available at: http:// www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev50_en.pdf [Last accessed 16 June 2016] (emphasis added); See also Amended Rule 68(2)(d)(i)(ii) Rules of Procedure and Evidence ICC and Article 70(1)(c) Rome Statute.

See: ICTR, Prosecutor v Simba, ICTR-01-76-T, Judgment, T.Ch, 13 December 2005, para. 41; ICTY, Prosecutor v

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Tadić, IT-94-I-T, Judgment, T.Ch, 7 May 1997, paras. 553-554. See also: Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp. 191-203(193 & 195)

See: SCSL, Independent Counsel v Bangura, Kargbo, Kanu and Kamara, SCSL-2011-2-T, Judgment in Contempt

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Proceedings, T.Ch, 25 September 2012; ICC, Prosecutor v Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fiedèle Babala Wandu & Narcisse Arido, ICC-01/05-01/13, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute, PT.Ch, 11 November 2014, para. 97.

ICTY, Prosecutor v Rasić, IT-98-32/l-R77.2-A, Judgment, A.Ch, 16 November 2012.

25

The Kenya cases are a key example of this - ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang,

26

ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, paras. 162-164; Office of the Prosecutor of the International Criminal Court, “Statement of the Prosecutor of International Criminal Court, Fatou Bensouda, on the status of the Government of Kenya’s cooperation with the Prosecution’s investigations in the Kenyatta case”, 5 December 2014, available at: https://www.icc-cpi.int/en_menus/ icc/press%20and%20media/press%20releases/Pages/otp-stat-04-12-2014.aspx [Last accessed 6 June 2016].

See: ICTY, Prosecutor v Margetić, IT-95-14-R77.6, Judgment on Allegations of Contempt, T.Ch, 7 February 2007,

27

para. 94.

This may include testifying to events that did not occur or that a particular accused was not involved. See: de

28

Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(710-711).

Ibid, p. 711.

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interference can be undertaken in order to create a hostile environment to dissuade others from also not coming forward to provide valuable evidence. In essence, witness interference is utilised as 30

means to obstruct the administration of justice.

1.2 - Witness Interference at the International Criminal Tribunals and Courts

In order to gain a clearer understanding of the grave effects of witness interference it is necessary to peruse some of the instances where it has occurred. Witness interference has been seen in

practically every international criminal institution throughout the entire period of their respective existences. Due to its widespread nature it is not possible to undertake a full empirical study of 31

witness interference , and thus the following analysis will seek to trace a sample of some of the 32

most notable instances of witness interference at two institutions, namely the ICTY and ICC.

1.2.1 Witness Interference at the ICTY

Although, witness interference is by no means limited to the following cases , the following two 33

cases have been selected to demonstrate the extent of the damage that witness interference can have on a trial. It was the case of ‘Haradinaj et al’ which arguably saw some of most widespread and extreme practice of witness interference at the ICTY. Throughout the entire trial witness

intimidation permeated the entire judicial process and the majority of the prosecution witnesses expressed extreme fear of giving evidence before the Trial Chamber with many refusing to testify. 34

In the absence of sufficient evidence against them the accused were acquitted by the Trial Chamber, with the Chamber accepting that witness intimidation was so extreme as to give “a strong

impression that the trial was being held in an atmosphere where witnesses felt unsafe”. The 35

acquittals attracted harsh criticism and the Appeals Chamber condemned the Trial Chamber for failing to “appreciate the gravity of the threat that witness intimidation posed to the trial’s

30

Criminal Law Review, Vol. 15, pp. 700-732(713).

Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol.

31

27, pp. 191-203(193). Ibid, p. 193.

32

See, ICTY, Prosecutor v Limaj et al, IT-03-66-T, Judgment, T.Ch, 30 November 2005, para. 15; ICTY, Prosecutor v

33

Boškoski and Tarčulovski, IT-04-82-T, Judgment, T.Ch, 10 July 2008, para. 14; ICTY, Prosecutor v Simić et al, IT-95-9-R77, Judgment in the Matter of Contempt Allegations against an Accused and his Counsel, T.Ch, 30 June 2000, para. 99.

ICTY, Prosecutor v Haradinaj et al, IT-04-84-T, Judgment, T.Ch, 3 April 2008, para. 28, (See also paras. 6 and 22).

34

Ibid, para. 6.

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integrity”. The Appeals Chamber noted that this trial had taken place in a context that was plagued 36

with an “unprecedented atmosphere of widespread and serious witness intimation” and thus given 37

the gravity of interference in this case was forced to order a retrial. 38

A similar example of the grave effects of witness interference was seen in the case against Vojislav Šešelj. Šešelj was convicted for contempt of tribunal for undermining the protection of witnesses three times , and in March 2016 was acquitted of all charges. Judge Lattanzi dissented on all 39 40

charges of acquittal bar one. In her dissent, Judge Lattanzi devoted an entire section exclusively 41

detailing the “General Climate of Intimidation”. She condemned the Trial Chamber for not 42

including this climate of intimidation to which Šešelj and others had subjected witnesses to in its analysis of the evidence. She argued that the Trial Chamber could have done better and taken into 43

account the difficulties faced due to the behaviour of the accused in relation to witnesses and his obstruction of the procedure. She further noted that this climate of fear was also felt by the 44

Chamber during testimony given in court. Although the Prosecution have announced their 45

intention to appeal the majority decision , the acquittal of Šešelj, as with Haradinaj, demonstrates 46

how easily witness interference can frustrate the pursuit of justice.

1.2.2 - Witness Interference at the ICC

At the ICC witness interference is arguably one of the greatest problems facing the Court in the fulfilment of its mandate. In the case against Jean-Pierre Bemba there were several allegations of

ICTY, Prosecutor v Haradinaj et al, IT-04-84-A, Judgment, A.Ch, 19 July 2010, para. 40.

36

Ibid, para 34.

37

Ibid, para 40.

38

For the third judgment see: ICTY, Prosecutor v Šešelj, IT-03-67-R77.4-A, Public Redacted Version of "Judgment"

39

issued on 30 May 2013, A.Ch, 30 May 2013.

ICTY, Prosecutor v Šešelj, IT-03-67-T, Judgment, T.Ch, 31 March 2016 - (In French).

40

See: ICTY, Prosecutor v Šešelj, IT-03-67-T, Partially Dissenting Opinion of Judge Flavia Lattanzi, T.Ch, 31 March

41

2016 - (In French).

“Le Climat Général d’intimidation” - Ibid, p1.

42 Ibid, para. 7. 43 Ibid para. 3. 44 Ibid, para. 5. 45

Office of the Prosecutor MICT, “Statement by MICT Prosecutor Serge Brammertz Regarding Appeal of the Vojislav

46

Šešelj Trial Judgment”, 6 April 2016, available at: http://www.unmict.org/en/news/statement-mict-prosecutor-serge-brammertz-regarding-appeal-vojislav-seselj-trial-judgement [Last accessed 16 June 2016].

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threats being made against prosecution witnesses and their families in connection with their

testimony in court , and some witnesses received death threats as a result of improper disclosure of 47

their identities after testifying in closed session.4849

However, it is the Kenyan cases that are particularly illustrative of the devastating effects of witness interference at the ICC. As of April 2016, all proceedings brought against Kenyan individuals at the ICC for the post election violence in 2007 have been terminated, mainly due to the prevalence of witness interference. The first Kenyan case to fall foul to this problem was against Francis

Muthaura. Following the recantation of a key prosecution witness, who had admitted to accepting bribes from persons allegedly holding themselves out as representatives of the accused, the Prosecutor decided to drop the charges. A similarly bleak scenario was also seen in the case 50

against President Kenyatta, with the Prosecutor being forced to withdraw the charges against Kenyatta in December 2014. She noted that the course of justice had been severely obstructed in 51

the case and that several people who may have provided important evidence were too terrified to testify. 52

The final blow in the Kenyan cases came with the termination of charges in the case against William Ruto and Joshua Sang. Following the loss of Prosecution evidence due to witness

recantation the Trial Chamber decided that there was no case to answer and was forced to vacate the charges against the accused. Throughout the trial there was vast evidence of witness interference 53

ICC, Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Public Redacted Version of the 26 September 2011

47

Decision on the Accused’s Application for Provisional Release in Light of the Appeals Chamber’s Judgment of 19 August 2011, T.Ch, 27 September 2011, para. 29.

Ibid, para. 30.

48

In September 2015, contempt proceedings under Article 70 of the Rome Statute were brought against Bemba and

49

several co-accused at the ICC on allegations of, inter alia, bribing witnesses - ICC, Prosecutor v Jean Pierre Bemba Gombo, Kilolo, Mangenda et al, ICC-01/05-01/13.

ICC, Prosecutor v Francis Yirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11, Prosecution notification

50

of withdrawal of the charges against Francis Yirimi Muthaura, 11 March 2013, para. 11.

ICC, Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11, Notice of Withdrawal of the charges against Uhuru

51

Muigai Kenyatta, 5 December 2014.

Office of the Prosecutor of the International Criminal Court, “Statement of the Prosecutor of the International

52

Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta”, 5 December 2014, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-05-12-2014-2.aspx [Last accessed 16 June 2016].

ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications

53

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against Prosecution witnesses , with the Prosecution presenting almost 2000 pages of evidence on 54

witness tampering during the case. In his reasons for terminating the case against Ruto and Sang, 55

Presiding Judge Eboe-Osuji provided a strongly worded condemnation of the witness interference in the case. He noted that there was “serious tainting of the trial process by way of witness 56

interference and political intimidation”. He further categorically refused to enter a finding of 57

acquittal feeling that given the extent of the evidence of interference, feeling it would be “grossly unjust” to do so. Instead Judge Eboe-Osuji declared that the case should result in a “mistrial”, 58

something not specifically provided for under the Rome Statute. The legality of this new concept 59

in international criminal law aside, the fact that the Trial Chamber departs from existing precedent on "no case to answer” motions and creates this new concept of a “mistrial” demonstrates the extreme problem of witness interference in these case and the pressing need felt by the Court to do something about it. Judge Eboe-Osuji criticised the Kenyan government and various other actors, 60

such as the media, for creating an “atmosphere of intimidation” , which had indirectly led to 61

witnesses becoming unwilling to testify and withdrawing from the case. What is notable about this 62

case is that it was acknowledged by the Court that the state itself was responsible at different levels for the witness interference. The Kenyan cases proceeded against individuals who possessed vast 63

Human Rights Watch, “ICC: Kenya Deputy President’s Case Ends”, 5 April 2016, available at: https://www.hrw.org/

54

news/2016/04/05/icc-kenya-deputy-presidents-case-ends [Last accessed 16 June 2016]; BBC News, “Claims of witnesses in Kenya ICC trial ‘disappearing’”, 8 February 2013, available at: http://www.bbc.com/news/world-africa-21382339 [Last accessed 11 April 2016]; BBC News, “Kenya’s William Ruto trial: ICC judge warns bloggers”, 18 September 2013, available at: http://www.bbc.com/news/world-africa-24151392 [Last accessed 16 June 2016]. Journalists for Justice, “Bribery, intimidation of witnesses undermines justice for victims”, 6 April 2016, available at: http://www.jfjustice.net/en/icc-cases/bribery-intimidation-of-witnesses-is-undermines-justice-for-victims [Last accessed 16 June 2016]; Momanyi & Jennings, “Kenya Witnesses Face Harrassment” Institute for War & Peace Reporting, 5 June 2013, available at: https://iwpr.net/global-voices/kenya-witnesses-face-harassment [Last accessed 16 June 2016]

ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Separate, Partly Concurring

55

Opinion of Judge Eboe-Osuji on the ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, T.Ch, 19 August 2015, para. 6.

56

for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 201, pp. 57 et seq. Ibid, para. 2. 57 Ibid, para. 131. 58 Ibid, paras. 187-192. 59

Kersten, Smith & Andristyak, “Intimidated Witnesses, ICC Judges, and ‘Justice’ - Mission Creep or a Revolution

60

Long Overdue?”, 2 June 2016, available at: https://justiceinconflict.org/2016/06/02/intimidated-witnesses-icc-judges-and-justice-mission-creep-or-a-revolution-long-overdue/ [Last accessed 16 June 2016].

61

for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, para. 142. Ibid, para. 178.

62

Ibid, paras. 161-166, 170-173.

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political power, being the respective heads of government, and it was noted by Judge Eboe-Osuji that the Kenyan government used this power to tamper with the judicial process. The Kenyan 64

cases are devastating examples of the crushing effects that witness interference can have on an international criminal trial, and highlight specifically that where the state backs or is responsible for campaigns of witness interference then impunity is most likely to follow.

1.3 - Protective Measures and Contempt Proceedings as a Means to Combat Witness Interference? This sampling of jurisprudence is a clear demonstration that witness interference is an

overwhelming problem that is severely hindering the basic functioning of international criminal tribunals and that there is increasing recognition that something needs to be done about it. This leads to the question of what means do these institutions have to combat witness interference?

The ad hoc tribunals and ICC all provide some form of protective measures for witnesses such as restrictions on disclosure of identifying information through redaction on transcripts or court records; the use of pseudonyms; facial and voice distortion; as well as holding hearings in closed session or via video link. However, while protective measures may be entirely logical on paper, in 65

reality they arguably do not work in practice. While protective measures are good in theory they ultimately are ineffective due to the fact that international criminal courts and tribunals operate in a disaggregated system and lack enforcement capacity on the ground. Given their lack of 66

enforcement powers protective measures issued by international courts simply cannot translate into effective protection. There is no police force to enforce the protective measures, and the courts 67

have rely on the goodwill of states to ensure that orders for protection are carried out and adhered to. This can inevitably render protective measures ineffective, especially if the state or government 68

are themselves the alleged perpetrators, as seen in Kenya. A state is unlikely to ensure the 69

64

for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, paras. 161-166, 170-173.

See: Article 22 ICTY Statute, available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

65

[Last accessed 16 June 2016]; Rules 67, 75 and 79 Rules of Procedure and Evidence ICTY; Article 68 Rome Statute; Rules 87 and 88 Rules of Procedure and Evidence ICC. See also: Schabas, “The International Criminal Court: A Commentary on the Rome Statute”, 2010, 1st edition, Oxford University Press, pp. 824-827.

Cryer, “Witness Tampering and International Criminal Tribunals”, (2014), Leiden Journal of International Law, Vol.

66 27, pp. 191-203(199). Ibid, p. 199. 67 Ibid. 68 Ibid, p. 202. 69

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operationalisation of protective measures if they themselves have an interest in identifying those witnesses and affecting their testimony. This is exacerbated by the fact that these tribunals 70

predominantly operate in conflict/post conflict situations where the security situation will be fragile and volatile. 71

In addition to protective measures there is also the ability to resort to contempt proceedings under Rule 77 RPE ICTY and Article 70 of the Rome Statute respectively. These provisions represent one of the means to safeguard the integrity of proceedings at the ICTY and ICC from offences against the administration of justice, such as witness interference. As demonstrated above the effects that 72

witness interference can have on a trial can be grave, however, it can also bring the Court itself into disrepute as it undermines its ability to deliver justice. In relation to the ICC, Article 70 provides a 73

means to combat witness interference and prosecute those who seek to undermine the

administration of justice by engaging in this practice. However, contempt proceedings under 74

Article 70 are reactive measures, after the interference has already taken place and the damage is done. Although contempt proceedings may serve as a deterrent for future perpetrators they cannot 75

necessarily counter the derailing effects of witness interference in the main case at hand given that the interference has already happened. This is evidenced by the case against Šešelj who, as noted, was convicted for contempt of tribunal three times but still acquitted by the Trial Chamber. 76

Similarly, it was noted in the decision terminating the charges against Ruto/Sang that contempt proceedings are separate from the main proceedings and that they have limited bearing on the evidentiary analysis of the main case at hand. Thus, given the “lack of tools in their armoury” to 77 78

70

27, pp. 191-203(202). Ibid, p. 199.

71

Hiéramente, Müller & Ferguson, “Barasa, Bribery and beyond: Offices against the Administration of Justice at the

72

International Criminal Court”, (2014) International Criminal Law Review, pp. 1123-1149(1140).

ICC, Prosecutor v Jean Pierre Bemba Gombo, Kilolo, Mangenda et al, ICC-01/05-01/13, Prosecutor’s Opening

73

Remarks at Trial, T.Ch, 29 September 2015, p. 1. Ibid, p. 3.

74

Hiéramente, Müller & Ferguson, “Barasa, Bribery and beyond: Offices against the Administration of Justice at the

75

International Criminal Court”, (2014) International Criminal Law Review, pp1. 1123-1149(1140). See discussion above at 1.2.1.

76

77

for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, para. 193.

78

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counteract the problems of witness interference, the question still remains, what can be done to counteract witness interference?

1.4 - Amended Rule 68(2)(d) - “Bringing it back in house”

It is this key question that brings us to the core of this work. Given the lack of enforcement discussed previously it is quite clear that it is impossible for international courts to stop witness interference, it is too vast a problem. Therefore, seeing that it is unlikely that the enforcement capabilities of the international criminal tribunals, specifically the ICC, will increase any time soon one of the only ways to respond to this problem is bring the issue “back in house”. What one means by this is to respond to this absence of enforcement powers by dealing with the problem where the courts actually have power, namely within the courtroom in relation to rules of evidence. This brings us to Amended Rule 68(2)(d) RPE ICC. In 2013, at the twelfth session of the Assembly of States Parties to the ICC, the Assembly adopted a Resolution amending Rule 68 of the ICC’s Rules of Procedure and Evidence. Originally emanating from the Court itself , the Assembly’s 79 80

“Working Group on Lessons Learnt” advocated that the admissibility for prior recorded testimony under Rule 68 be expanded to allow, inter alia, such evidence to be admitted where the witness has been interfered with. Under unamended Rule 68 it was not possible to introduce such evidence 81

unless strict requirements had been met. For example, such testimony could only be allowed if both the Prosecution and the defence had had the opportunity to examine the witness during the

recording. However, under Amended Rule 68 the Court can now introduce prior recorded 82

testimony that it would not have otherwise been able to consider. Specifically, Amended Rule 68(2) (d) now allows for the admission into evidence of such testimony where “the person has failed to attend as a witness or having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony”. Most controversially, however, Amended Rule 83

Resolution ICC-ASP/12/Res.7 - Amendments to the Rules of Procedure and Evidence, 27 November 2013, available

79

at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdf [Last accessed 16 June 2016].

Assembly of States Parties, “Report of the Working Group on Amendments”, ICC-ASP/12/44, 24 October 2013, para.

80

8 , available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-44-ENG.pdf [Last accessed 16 June 2016].

Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States

81

Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, para. 32, available at: https://asp.icc-cpi.int/iccdocs/ asp_docs/ASP12/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016].

Old Rule 68 Rules of Procedure and Evidence ICC, available at: https://www1.umn.edu/humanrts/instree/

82

iccrulesofprocedure.html [Last accessed 16 June 2016].

Amended Rule 68(2)(d)(i) Rules of Procedure and Evidence ICC.

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68(2)(d) now allows for the admission of prior recorded testimony that goes to “proof of acts and conduct of an accused”. 84

This amendment is not the first of its kind, in 2009 the ICTY introduced a new rule into its RPE which is almost identical to, and indeed was the basis for Amended Rule 68(2)(d). Rule 85

92quinquies RPE ICTY allows a written statement or transcript, in lieu of oral testimony, to be admitted into evidence where that person has been subjected to improper interference, and specifically allows for the admission of such evidence that goes to to acts and conduct of the accused. The ICTY is not alone in this provision, the ICTR also provides for something similar in 86

Rule 71bis(O)(iii)(iv) RPE ICTR. This rule allows for a special deposition to be admitted into evidence where its probative value is not outweighed its prejudicial effect, and where the witness is unwilling to testify following threats or intimidation. 87

By amending Rule 68 the ICC tackles the issue of witness interference in the only way it can, by altering its own rules of procedure and evidence to counteract its effects and thus allowing a witness’s written statement to be used instead of their oral testimony. In altering its RPE the ICC has somewhat responded to the deficiency in terms of enforcement powers and changes the “rules of the game” where it can. However, by altering the rules in this way Amended Rule 68(2)(d) now allows for increased written testimony, which can go to the acts of the accused. This begs the question as to whether in amending Rule 68 in this way, has the ICC overstepped its boundaries?

Amended Rule 68(2)(d)(iv) RPE ICC.

84

Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States

85

Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, paras. 3, 21 & fn. 26, available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016].

See: Rule 92quinquies Rules of Procedure and Evidence ICTY.

86

See: Rule 71bis(O)(iii) Rules of Procedure and Evidence ICTR, available at: http://unictr.unmict.org/sites/unictr.org/

87

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Chapter 2 - Amended Rule 68(2)(d) and Fundamental Fair Trial Guarantees for the Accused

The use of Amended Rule 68(2)(d) has only been attempted once by the ICC since its introduction, namely in the case against William Ruto and Joshua Sang, with the Appeals Chamber ultimately holding that it could not apply due to the fact that the rule had been introduced after the case had commenced and was thus applied to the detriment of the accused. The legal discussion in Ruto/88

Sang predominantly revolved around this issue of retroactivity, and did not really touch upon whether the rule was unlawful per se. However, it was noted by the Appeals Chamber that the rule did stretch the exceptions to the principle of orality, with the Chamber drawing attention to the “negative impact that depriving the accused of the opportunity to challenge evidence can have on the fairness of the proceedings”. These observations arguably beg the larger question of whether 89

Amended Rule 68(2)(d) fails to reconcile with fundamental guarantees to fair trial laid down in international criminal law, and thus could be deemed unlawful.

These fundamental guarantees to fair trial can be found in the Rome Statute and the ICC's RPE and form part of a complex network of principles and rights regulating the admission of evidence in international criminal law. These principles comprise and regulate a variety of different yet 90

interconnected interests, ranging, inter alia, from the principle of orality , to the right to cross 91

examination , to the overall concern in ensuring that evidence is reliable, probative and relevant . 92 93

These principles are interconnected by the common strand that they all aim to ensure that the admission of particular piece of evidence does not prejudice an accused’s right to fair trial.

This chapter will seek to analyse whether evidence admitted under Amended Rule 68(2)(d) RPE ICC corresponds with this legal framework looking closely at the developments and jurisprudence

ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Judgment on the appeals of Mr

88

William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recored Testimony”, A.Ch, 12 February 2016, para. 95.

Ibid, paras. 94-95.

89

Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in

90

International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 446. See: Article 69(2) Rome Statute.

91

See: Article 67(1)(e) Rome Statute.

92

See: Article 69(4) Rome Statute.

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in relation to the use of prior written statements in lieu of oral testimony. The chapter will be split into three sub chapters tracing the legality of Amended Rule 68(2)(d).

The first sub chapter will analyse the overall importance of the principle of orality, enshrined in Article 69(2) of the Rome Statute, and trace how the principle has been steadily eroded through the introduction of a trend liberalising the rules of evidence, such as Amended Rule 68(2)(d). The analysis with question the legitimacy of this trend, the impact it has on the legality of Amended Rule 68(2)(d) and the link with the issue of expediency in international criminal law.

The second sub chapter, in light of the previous discussion on the erosion of orality, will discuss specifically whether the rule corresponds with the right to cross examination laid down in Article 67(1)(e) of the Rome Statute, looking at various jurisprudence elucidating the parameters of the right. The sub chapter will then question and evaluate whether the limitations on the right to cross examination imposed by Amended Rule 68(2)(d) go too far in light of the need to ensure that evidence does not prejudice an accused’s right to fair trial.

The final sub chapter then questions, given the limitations on the right of cross examination, whether evidence admitted under Amended Rule 68(2)(d) can still be deemed reliable for use at trial, as required by Article 69(4) of the Rome Statute and the rule itself. This section will look closely at the type of evidence admitted under Amended Rule 68(2)(d) and evaluate its general reliability. It will further evaluate and question whether the reality of the international criminal process in relation to the admission and processing of evidence results in a situation where the admission of evidence under Amended Rule 68(2)(d) will always be unfair to the accused.

2.1 - Amended Rule 68(2)(d), the Principle of Orality and the Introduction of Liberal Rules of Evidence

2.1.1 - Principle of Orality and its changing position in International Criminal Law

Article 69(2) of the Rome Statute provides that “the testimony of a witness at trial shall be given primarily in person”. This provision illustrates the preference for oral testimony at the ICC and that testimonial evidence shall in principle be given in person rather than in writing. International 94

Gosnell, “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International

94

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criminal procedure has traditionally enshrined the principle for orality and it plays a key part in the presentation of evidence in international criminal proceedings. At the ICC, it has been noted on numerous occasions by the Court that there is a “primacy of orality” in the presentation of

evidence , and it has been expressed at the ICTY that there is “a strong preference that…important 95

evidence central and critical to the case be elicited orally from a witness”. The principle is 96

grounded in the need to ensure the adversarial nature of the criminal trials and the right of the accused to answer the case against him or her. Similarly, Article 74(2) of the Rome Statute 97

highlights that judgments must be based “only on evidence submitted and discussed before it at trial” which implies that a first hand impression of evidence is decisive. The wording “and discussed” connotes orality in that evidence should be discussed orally in open court. 98

At first glance Amended Rule 68(2)(d) is clearly at odds with the principle of orality given that it allows evidence in written form. However, Article 69(2) of the Rome Statute also provides that in addition to the testimony of a witness given at trial, the use of recorded testimony is permissible , 99

with Rule 68 RPE supplementing Article 69(2) by providing for the instances where prior recorded testimony is admissible at trial. This allowance for written testimony is indicative of a shift away 100

from orality that began at the ICTY. Rule 90(A) RPE ICTY which read that “witnesses shall, in principle, be heard directly by the Chamber” was deleted in December 2000 and replaced with 101 102

Rule 89(F) which reads that “a chamber may receive the evidence of a witness orally or, where the

This has been noted in some of the most recent decisions before the ICC. See, inter alia, ICC, Prosecutor v Bosco

95

Ntaganda, ICC-01/04-02/06, Decision on Prosecution request seeking the admission of the medical report related to Witness P-0790, T.Ch, 9 May 2016, para. 14; ICC, Prosecutor v Laurent Gbagbo & Charles Blé Goudé,

ICC-02/11-01/15, Decision on the Prosecution’s request to designate a person authorised to witness a declaration under Rule 68(2)(b) of the Rules, T.Ch, 21 October 2015, para. 7.

ICTY, Prosecutor v Gotovina et al, IT-06-90-T, Judgment, T.Ch, 15 April 2011, para. 16.

96

Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014,

97

Intersentia, p.819.

Klamberg, Evidence in International Criminal Trials - Confronting Legal Gaps and the Reconstruction of Disputed

98

Events, 1st edition, 2013, Martinus Nijhoff Publishers, p. 368.

Article 69(2) reads - “The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by

99

means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence.”.

Gosnell, “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International

100

Criminal Justice, 1st edition, 2010, Oxford University Press, pp. 414-415.

See: Rule 90(A) Rules of Procedure and Evidence of the ICTY, IT/32/Rev.18, 2 August 2000, available at: http://

101

www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev18_en.pdf [Last accessed 16 June 2016]. Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014,

102

Intersentia, p.760. See also: McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(971).

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interests of justice allow, in written form”. Alongside this deletion at the ICTY there has also 103

been an introduction of a variety of additional provisions, as will be discussed below, allowing for increased use of prior written testimony such as written statements and transcripts in lieu of oral testimony. The ICC recently replicated these amendments in its own RPE in 2013. This move 104 105

away from orality towards more written testimony was due to a variety of reasons predominantly relating to concerns as to lengths of trials and the scale of international criminal cases. These are 106

of course legitimate concerns given that international criminal trials can last several years with delayed justice sometimes leading to no justice at all, as evidenced by the case against Slobodan Milošević. In light of this trend Amended Rule 68(2)(d) RPE ICC could be regarded as the latest 107

in a long line of rule amendments which have downgraded the principle of orality from being an absolute restriction to a mere preference for oral evidence. However, this trend, which places 108

expediency over a principled approach to the admission of evidence and the ability of the accused to challenge the evidence against him or her, is arguably insufficient to support the rule’s legality, as will be evidenced below.

See Rule 89(F) Rules of Procedure and Evidence of the ICTY, IT/32/Rev.50, 8 July 2015, available at: http://

103

www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev50_en.pdf [Last accessed 16 June 2016] (emphasis added).

McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal

104

Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(971-973).

Resolution ICC-ASP/12/Res.7 - Amendments to the Rules of Procedure and Evidence, 27 November 2013, available

105

at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdf [Last accessed 16 June 2016]

Rohan, “Rules Governing the Presentation of Testimonial Evidence” in Khan, Buisman, Gosnell (eds) Principles of

106

Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 522; Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 825&847; ICTY, Prosecutor v Prlić et al, IT-04-74-AR73.6, Decision on Appeals against decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, A. Ch, 23 November 2007, para. 43; ICTY, Prosecutor v Krajišnik, IT-00-39-T, Judgment, T.Ch, 27 September 2006, para. 1199.

The case at the ICTY against the former President of Serbia was terminated on 11 March 2006 due to the death of

107

the accused. He had been on trial since 2001 and his death was met with extreme frustration with criticism being launched at the length of his trial - See: Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(542); O-Gon Kwon, “The Challenge of an International Criminal Trial as Seen from the Bench”, (2007) Journal of International Criminal Justice, Vol. 5, pp. 360-376(360-361); Bell, “Justice Delayed is Justice Denied”, The Guardian, 22 July 2008, available at: http://www.theguardian.com/commentisfree/2008/jul/22/

radovankaradzic.warcrimes3 [Last accessed 16 June 2016]; MacCarrick, “Lessons from the Milosevic Trial”, Global Policy Forum, 26 April 2006, available at: https://www.globalpolicy.org/component/content/article/163/29362.html [Last accessed 16 June 2016].

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2.1.2 - The Erosion of the Principle of Orality - Rule 92bis RPE ICTY

It was in Tadić that written statements comprising hearsay were first ruled admissible at the ICTY, with there being a presumption favouring admissibility at the tribunal. This was tempered 109

somewhat by the ICTY’s preference for orality in Rule 90(A), with many Trial Chambers

recognising the need to uphold the orality of debates in the courtroom. However, it was in 2001, 110

that the ICTY laid down codified provisions eroding the principle of orality in international criminal procedure with the deletion of Rule 90(A) and the introduction of Rule 92bis RPE ICTY, which has been somewhat replicated at the ICC in Rule 68(2)(b). Pursuant to Rule 92bis a Trial Chamber may admit a witness statement in lieu of oral testimony which goes to the proof of a matter other than the acts of the accused. The fact that Rule 92bis cannot be used to submit evidence that goes to 111

the acts and conduct of the accused is important as it indicates a key consideration behind the move from oral testimony to written testimony. The ICTY Appeals Chamber in ‘Galić’ held that Rule 92bis was “primarily intended to be used to establish…‘crime base’ evidence” , namely evidence 112

that is generally of a cumulative nature about the broader crimes at issue. The fact that it was 113

envisaged that Rule 92bis was to be used for more contextual type of evidence, and not pivotal evidence that goes to the heart of the prosecution’s case, raises questions of whether Amended Rule 68(2)(d) goes too far. Amended Rule 68(2)(d)(iv) allows admission of written statements that go to the acts and conduct of the accused and thus it could be argued that the rule stretches the 114

boundaries of fairness given that early jurisprudence indicates that pivotal evidence to a party’s case should still be held orally. It was noted by Judge Hunt in ‘Milošević’, citing the Appeals Chamber 115

in ‘Galić’, that evidence that goes to the proof of the acts and conduct of the accused was regarded as a matter of particular sensitivity when the decision to adopt Rule 92bis was taken. He 116

ICTY, Prosecutor v Tadić, IT-94-1-T, Decision on Defence Motion on Hearsay, T.Ch, 5 August 1996, para. 7.

109

See, inter alia: ICTY, Prosecutor v Kvočka et al, IT-98-30/1-T, Oral Decision on the Admissibility of Prior

out-of-110

court statements, T.Ch, 4 July 2000, Transcript 3510-3514; ICTY, Prosecutor v Kordić & Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding the Statement of a Deceased Witness, A.Ch, 21 July 2000, paras. 19 & 21.

See: Rule 92bis Rules of Procedure and Evidence of the ICTY.

111

ICTY, Prosecutor v. Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis (C), A.Ch, 7

112

June 2002, para. 16.

113

International Criminal Justice, 1st edition, 2010, Oxford University Press, pp. 451&463. See: Amended Rule 68(2)(d)(iv) Rules of Procedure and Evidence ICC.

114

115

Intersentia, p. 848.

ICTY, Prosecutor v Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of

116

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expressed that the risk of prejudice to the accused was great and argued that the principle of orality was still paramount for evidence going to the acts of the accused so that proceedings are fair and the accused can challenge pivotal evidence against him. As a result written statements going to the 117

acts and conduct of the accused are deemed inadmissible under Rule 92bis. Similarly it was noted 118

by the Appeals Chamber in ‘Prlić’ that while Rule 92bis did place some restrictions on the

admissibility of hearsay evidence by not allowing evidence that goes to the acts and conduct of the accused, it did so as to “make trials more expeditious, while not preventing examination and cross examination of the witness as such.” Amended Rule 68(2)(d) clearly conflicts with this initial 119

reasoning behind the use of written statements given that it allows the admission of untested hearsay evidence that goes to the acts of the accused. Amended Rule 68(2)(d) takes the trend allowing for written statements in a direction which does not correspond with the initial

justifications for allowing written statements in the first place, which could therefore be argued to undermine the rule’s ability to rely on this trend to justify its legality.

2.1.3 - Taking the liberalistic trend too far? - Rule 92quater and Rule 92quinquies RPE ICTY

However, the liberalising of the rules of evidence does not end with Rule 92bis. In 2006 and 2009 the ICTY adopted Rule 92quater and Rule 92quinquies , which have been replicated almost 120 121

verbatim at the ICC in Rules 68(2)(c)&(d) respectively . These rules are more permissive 122

compared with Rule 92bis in that they allow written statements to be admitted that go to the proof of the acts and conduct of the accused as charged in the indictment. Rule 92quater allows for the 123

admission of written statements of deceased witnesses and Rule 92quinquies allows for the

admission of statements of person subject to witness interference. The latter is thus very similar to

ICTY, Prosecutor v Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of

117

Evidence in Chief in the Form of Written Statement, A.Ch, 21 October 2003, para. 17; ICTY, Prosecutor v. Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis (C), A.Ch, 7 June 2002, para. 13.

118

Intersentia, p. 848.

ICTY, Prosecutor v Prlić et al, IT-04-74-AR73.6, Decision on Appeals against decision Admitting Transcript of

119

Jadranko Prlić’s Questioning into Evidence, A. Ch, 23 November 2007, para. 43.

Rule 92quater, Rules of Procedure and Evidence of the ICTY, IT/32/Rev.39, 22 September 2006, available at: http://

120

www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev39_en.pdf [Last accessed 16 June 2016] Rule 92quinquies, Rules of Procedure and Evidence of the ICTY, IT/32/Rev.44, 10 December 2009, available at:

121

http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev44_en.pdf [Last accessed 16 June 2016]

See: Rule 68(2)(c)&(d) Rules of Procedure and Evidence of the ICC.

122

123

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Amended Rule 68(2)(d) given they both deal with the same situation. The drafters of Amended 124

Rule 68(2)(d) referred heavily to Rule 92quinquies in drawing up the rule, noting that Rule 92quinquies demonstrated an increased trend allowing for written testimony to be admitted at trial. It could be argued that in light of this the rule serves as a form of legal basis for Amended 125

Rule 68(2)(d) at the ICC. Amended Rule 68(2)(d) could simply be regarded as another 126

contribution to this increasing trend moving away from orality, expanding the avenues of

admissibility of written statements in international criminal procedure. However, Rule 92quater and 92quinquies have been met with significant concern and criticism which could point to the fact that this liberalistic trend increasing the possibilities for the admission of written testimony has perhaps gone too far. 127

In its 7 year existence, Rule 92quinquies has never been utilised by any party before the ICTY. 128

Given that this isn’t due to a lack of witness interference, as evidenced in Chapter 1 of this work, this could point to perceived issues with the legality of these rules. This is further evidenced by the fact that Rule 92quinquies has not been replicated in the RPEs of the ICTR nor the SCSL. Rule 129

92quinquies and 92quater now allow for the wholesale admission of statements in lieu of oral testimony even in situations where cross examination is a clear impossibility. Rule 92quinquies 130

and 92quater represent a clear undermining of the safeguard of orality in that they all allow for

This is expressly noted by the drafters of Amended Rule 68(2)(d) - See: Assembly of States Parties, “Working Group

124

on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add. 1, 31 October 2013, fn 26, available at: https://www.legal-tools.org/uploads/tx_ltpdb/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016].

Ibid, paras. 3-6, 31.

125

This was argued by the Prosecution in the Ruto/Sang case - ICC, Prosecutor v William Samoei Ruto & Joshua Arap

126

Sang, ICC-01/09-01/11, Public Redacted Version of “Prosecution’s Consolidated Response to the Appeals of Mr Ruto and Mr Sang against the ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, A.Ch, 3 November 2015, paras. 112, 216.

127

International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 474; McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(981); Caianiello, “First Decisions on the Admission of Evidence at ICC Trials - A Blending of Accusatorial and Inquisitorial Models?” (2011) Journal of International Criminal Justice, Vol. 9, pp. 385-410(407-410); Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, pp. 297-304.

Ibid, McDermott, p. 981; Ibid, Rohan, p. 302; de Brouwer, “The Problem of Witness Interference before

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International Criminal Tribunals”, (2015), International Criminal Law Review, Vol. 15, pp. 700-732(707). Ibid, McDermott, p. 977.

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evidence that goes directly to the acts and conduct of the accused, which can effectively prove or disprove the accused’s acts as charged, without the opportunity to challenge. Rule 92quinquies 131

arguably represents the greatest encroachment on the principle of orality to date at the ICTY given that the rule allows for the admission of statements of living witnesses, whereas Rule 92quater is essentially restricted to the deceased. The erosion of orality by these rules represents an arguably 132

impermissible encroachment on the fairness of the proceedings, taking the liberalistic trend allowing for written evidence in international criminal law too far. 133

2.1.4 - Is it appropriate for the ICC to follow this liberalistic trend at the ICTY?

It would appear in light of the preceding discussion that these newer rules of evidence at the ICTY carry their own concerns as to legality. However, regardless of this, one would question whether the ICC following this liberalistic trend at the ICTY and replicating rules such as 92quinquies in the form of Amended Rule 68(2)(d) is even appropriate.

The ICC still maintains its preference for oral testimony in Article 69(2), while the ICTY has abandoned such a preference. This limits the weight that can be given to the argument that 134

Amended Rule 68(2)(d) can rely on the liberalistic trend at the ICTY to support its legality. Rule 68 in its unamended form arguably corresponded better to the primacy of orality at the ICC in that it only allowed written testimony to be admissible in two instances. Firstly, where both parties had 135

a chance to examine the witness during recording of the statement or secondly, where the witness 136

Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative

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Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 298; Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 474.

Ibid, Nerenberg & Timmerman, p. 474.

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Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative

133

Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical

Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 297; O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(535).

Contrast Article 69(2) Rome Statute with Rule 89(F) Rules of Procedure and Evidence of the ICTY.

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See Unamended Rule 68 Rules of Procedure and Evidence ICC; Rohan, “Protecting the Rights of the Accused in

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International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, pp. 303-304.

Unamended Rule 68(a) Rules of Procedure and Evidence ICC.