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

Thesis Supervisor: Prof. Harmen van der Wilt

2

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

Bibliography ........................................................................................................................... 33

3

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 4 Ambos, (n.3), p. 5, (Referring to: Damaška, Two Faces of Justice and State Authority, 1986, p. 5)

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

7

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] 26 Crawford, (n.12), p. 408

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 29 Articles 64(9) and 69(4), Rome Statute; Rule 63(2), RPE

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 46 ibid, paras. 37-39, 52-54 & 58-60

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 51 ibid, paras. 69-70

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 58 Safferling, International Criminal Procedure, 2012, p. 495-496

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 65 Klamberg, (n.5), p. 373

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 71 Lubanga, (n.33), ICC T.C. I, 13 June 2008 (I), para 25

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 78 ibid, para. 7

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 84 Tadić, 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 87 Caianiello, First Decisions on the Admission of Evidence at ICC Trials, JICJ 2011/2, p. 388, n.8

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 98 Caianiello, ibid, p. 391

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 102 Article 68(2) & 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 & 225 109 Article 68(3), Rome Statute

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. 409 114 Article 69, Rome Statute

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. 473 121 Caianiello, (n.24), ‘Law of Evidence’, 2011, p. 307-308

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. 151 130 Pellet, (n.21), p. 1064 at n.78

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. 318 134 Zappalà, (n.7), p. 149-150

28

finding the truth.135 Although an argument might be made that exclusionary rules impair the

ability to find the truth, violating the rights such rules seek to protect will undoubtedly have

an equally damaging effect on the reliability and credibility of the system as a whole.136

Just one example of the effect of the lack of specific sanctions for violations of

procedural rules can be seen in one of the early decisions in the Lubanga case.137 Here the

Prosecutor neglected to disclose exculpatory evidence to the defence, in breach of its duties,

however the Court merely ordered a stay on the proceedings rather than a more severe

sanction of excluding the undisclosed evidence. This approach by the Court indicates some

inconsistencies. The system of disclosure appears to be predicated on the parties’ initiative to

fulfil their duties, but the applicable sanctions do not correspond with this system, instead

they show judges actively managing the trial with the aim of advancing the trial to a

satisfactory conclusion. 138 This example illustrates the existence of a trial structure which

puts the defence in a disadvantaged position, the defence has few powers to challenge the

choices of the Prosecutor in presenting evidence and if the Prosecutor fails to fulfil its duties,

there is no sanction for such negligence, judges will simply temporarily stay the proceedings

to get the trial back on track.139 Although this approach might assist in reaching a conclusion

of the trial and finding the truth in the short term, in the longer term as the Court seeks to

position itself as an institution which upholds the ideals of fairness and impartiality, it

becomes more difficult to justify a lack of adequate sanctions for procedural violations.

Similar systemic problems are observed in the treatment of illegally obtained

evidence at trial. One of the arguments for stricter criteria to exclude evidence, such as seen

in Article 69(7), is to balance the need for law enforcement and crime control against the

rights of the accused.140 However, this logic cannot apply on an international level, as

although the Statute has a certain deterrent effect in defining crimes and the mode of

punishment, there is no means for the Court to enforce respect for individual rights when

State officials are obtaining evidence except by excluding evidence after a violation

135 ibid, p. 151 136 Vanderpuye, The International Criminal Court and Discretionary Evidential Exclusion, Tul.J.Int'l & Comp.L. 2005-2006, p. 169 137 Lubanga, (n.91), ICC T.C.I, 13 June 2008 (II) 138 Caianiello, (n.24), ‘Law of Evidence’, 2011 p. 299-300; Caianiello, Disclosure before the ICC, Int.C.L.R. 2010/1, p. 26-31 139 Caianiello, ibid, ‘Disclosure’, p. 39-40 140 Vanderpuye, (n. 136), p. 166-167

29

occurs.141 Indeed, to take the argument further, if the Court accepts illegally obtained

evidence then it is failing to deter illegal law enforcement operations and is in essence

condoning State violations of protected human rights.142

Articles 69(7) and 21(3) of the Statute clearly show the intention of the Court to

safeguard substantive human rights. On this basis arguably any evidence obtained through

violation of these rights would ‘damage the integrity of the proceedings’ and should be

excluded on the basis of Article 69(7)(b).143 The major shortcoming of the current

discretionary admissibility test is that it necessitates a competition between the interests of

prosecuting serious crimes and protecting fundamental human rights.144 It is possible to

maintain a structure which manages to satisfy both of these distinct interests, a fair trial

procedure should not be sacrificed in order to correct human rights violations committed by

States or procedural violations by the ICC Prosecutor. As one commentator put it, ‘how can

the court propose to engender the highest respect for human rights in the international

community when it may be rightly perceived as sanctioning their subversion?’145

6. RECOMMENDATIONS

The ICC is still a comparatively young institution, and in this sense its trial procedure

is certainly still developing. The general admissibility test has been determined by the Court,

and has been endorsed in later cases, providing a base from which to analyse and determine

how the law of evidence will or should develop into the future. The flaws in the present

admissibility test with regard to the rights of the defence have been outlined in this paper, and

there are a number of potential courses of action which could begin to improve the present

structure. An ideal, but perhaps improbable, scenario which some have called for, is for the

Court to fully adopt an inquisitorial model of a judge-led trial,146 which should include a

specific safeguard to ensure that no conviction is based on evidence which has not been

tested in court.147 Such a solution may be preferable since the present trial structure is striving

to be an adversarial procedure but the exceptions in place are too broad to be fully effective 141 ibid, p. 167 142 ibid, p. 171 143 Zappalà, (n.7), p. 80-81 144 Vanderpuye, (n.136), p. 172 145 ibid, p. 172 146 Jackson, (n.6) p. 18; Pizzi, (n.82), p. 2-3 147 Caianiello, (n.24), ‘Law of Evidence’, 2011, p. 309

30

in protecting the rights of the defence.148 However, given the difficulties in reaching an

agreement on the Statute and the RPE during the original drafting processes, making

comprehensive changes at such a scale would be an extremely challenging process and as

such would be highly unlikely.

As the Court has already determined that the trial procedure is adversarial in nature, it

seems necessary that the current interpretation of the Statute and the RPE be re-examined to

resolve the shortcomings in safeguarding the right to a fair trial. It is necessary for the Court

to give full effect to the equality of arms concept and address the disparity between the

Prosecutor and the defence at the beginning of the trial. This requires any confidential

evidence to be disclosed by the Prosecutor prior to the trial.149 If evidence is not disclosed in

due time the Court should take a more decisive approach to sanctioning such behaviour,

either by excluding the evidence in question or if the Prosecutor’s failure to disclose is

persistent, then the Court should consider dismissal of the charges against the accused.150

Given the Prosecutor’s unique knowledge of the materials collected, it is illogical and

inefficient for judges to have to proactively seek to gather more relevant information.

Although this is not explicitly provided for in the Statute or the RPE, a persistent violation of

the accused’s rights should not go unsanctioned. In the interest of having expeditious

proceedings which also protect the right to a fair trial, a stricter stance ought to be taken with

violations of the duty of disclosure.

With regard to the discretion to exclude hearsay or untested evidence, there are also

some steps the Court could take to ensure greater protection for the accused’s rights in

practice. Although a wholly nondiscretionary approach with a clear exclusionary rule might

provide certainty and predictability,151 such a change is just as unfeasible as a switch to a

predominantly inquisitorial model would be. Instead, similar to the approach to disclosure,

the more practical option would be to reassess the current interpretation of the relevant rules.

Caianiello identifies an efficient approach when judges must rule on the admissibility of

untested evidence, as applied at the ICTR and the ICTY, to separate the treatment of evidence

concerning acts or conduct of the accused from evidence of contextual features of the case.

To prove acts or conduct of the accused, and where the evidence is crucial for their

148 ibid, p. 309 149 Klamberg, (n.5), p. 513 150 Caianiello, (n.24), ‘Law of Evidence’, 2011, p. 312-313 151 Vanderpuye, (n.136), p. 177

31

defence,152 oral evidence and cross-examination should be used. Out of court statements

would then be permissible to prove contextual features of the case.153 This proposed approach

seems to provide a suitable compromise which allows for an expeditious proceeding and

protects the right of the defence to examine the witnesses against them. Caianiello observed

that this approach would not be difficult to implement, once the Prosecutor’s evidence is

disclosed the Court will know which evidence pertains to the acts or conduct of the accused,

and thus will easily know which witnesses will need to be called to participate in the trial.154

This would allow for a combination of the approaches to admissibility of evidence from both

the adversarial and inquisitorial systems, but would do so in a way which provides greater

realisation for the right to a fair trial than is currently the case. Such an approach would

ensure that both parties are in an equal position when crucial evidence is concerned, while

also maintaining an efficient trial process that does not require the Court to engage in overly

rigorous admissibility considerations for every piece of evidence.

7. CONCLUSION

It is clear that there are some unresolved issues with the current jurisprudence

regarding admissibility of evidence at trial at the ICC, and the scope of the accused’s right to

a fair trial. While the trial structure might outwardly appear to be predominantly adversarial,

the actual application of the statutory framework does not always maintain the adversarial

protections of the accused’s rights, in turn weakening the position of the accused at crucial

moments throughout the process. The absence of a strong exclusionary rule in the Statute,

and the provision for wide-ranging judicial discretion, continue to tip the scales in favour of

an already privileged Prosecutor. As one commentator put it, a weakened adversarial model

in fact breathes new life into the idea that an adversarial system provides ‘only a veneer of

fairness’.155 This is an unfortunate consequence of striving to build a mixed system for

international criminal justice; neither the adversarial nor inquisitorial models are inherently

unfair, however the challenge of creating a hybrid model which satisfies both common law

152 Caianiello, (n.24), ‘Law of Evidence’, 2011, p. 314; (Referring to: Robinson, Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia, EJIL 2000/3, p. 578-580) 153 Caianiello, ibid, p. 313-317, (Referring to: Rule 92, Rules of Procedure and Evidence for the International Criminal Tribunal for the former Yugoslavia and Rule 92bis, Rules of Procedure and Evidence for the International Criminal Tribunal for Rwanda) 154 Caianiello, (n.87), ‘First Decisions’, 2011, p. 409 155 Fairlie, The Marriage of Common and Continental Law at the ICTY and its Progeny, Due Process Deficit, Int.C.L.R. 2004/4, p. 291

32

and civil law lawyers has in fact created a flawed trial process. Indeed, what is required for a

truly sui generis procedure, is for international lawyers to let go of the preference for their

‘home’ model and build a system which not only provides a fair trial, but also seeks the truth

and provides justice for the victims of serious crimes.156 In actual fact, far from obstructing

the search for truth, clear rules of evidence would greatly assist in the search for truth by

maintaining focus on the key issues and excluding irrelevant evidence.157

The various ad hoc tribunals were characterised by both broad prosecutorial

discretion and bold judicial activism, however it is clear that the drafters of the Rome Statute

sought a more conservative institution. The persisting concern is that the opportunistic

constructions of the Statute driven by the need to generate activity will result in distorting the

proper role of the Court into the future.158 While it is unlikely that any sweeping changes will

be made to the statutory framework in the near future, there is an opportunity for judges to

interpret the current rules in light of the need to provide improved equality of arms between

the parties. The theory that judges possess singular abilities allowing them to accurately

interpret and weigh untestable evidence no longer passes muster, and could in fact inflict

lasting damage on the credibility of the Court.159 Instead, the Court should take the

opportunity to definitively establish itself as an institution capable of ending impunity for

serious crimes, while still upholding essential internationally recognised standards of human

rights.

156 Ambos, (n.3), p. 37 157 Murphy & Baddour, (n.8), p. 156

158 Schabas, Prosecutorial Discretion v Judicial Activism at the International Criminal Court, Presentation at the meeting on ‘New Vistas in International Criminal Justice’ sponsored by the Journal of International Criminal Justice, Florence, 16 May 2008, p. 34-35 159 Wald, (n.120), p. 473

33

BIBLIOGRAPHY

Table of Cases ICC Cases Prosecutor v. Jean-Pierre Bemba Gombo ICC-01/05 -01/08

- ICC Appeals Chamber, (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

- ICC Pre-Trial Chamber II, 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

- ICC Trial Chamber 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

- ICC Trial Chamber III, Decision on the admission into evidence of materials contained in the prosecution's list of evidence, 19 November 2010

- ICC Appeals Chamber, 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

Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, (ICC-01/04-01/07)

- ICC, Pre-Trial Chamber I, Decision on the confirmation of charges, 30 September 2008

- ICC Pre-Trial Chamber I, 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

- ICC Trial Chamber II, Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, 20 November 2009

- ICC Trial Chamber I, Decision on the Bar Table Motion of the Defence of Germain Katanga, 21 October 2011

Prosecutor v. Thomas Lubanga Dyilo, (ICC-01/04-01/06)

- ICC Pre-Trial Chamber, Decision on the confirmation of charges, 29 January 2007

- ICC Pre-Trial Chamber I, Decision on the Prosecution and Defence applications for leave to appeal the Decision on the confirmation of charges, 24 May 2007

- ICC Appeals Chamber, 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

- ICC Trial Chamber I, Decision on various issues related to witnesses' testimony during trial, 29 January 2008

- ICC Pre-Trial Chamber, Decision on disclosure by the defence, 20 March 2008 - ICC Trial Chamber I, Decision on the admissibility of four documents, 13 June

2008

34

- ICC T.C. I, 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

- ICC Trial Chamber I, Decision on various issues related to witnesses' testimony during trial, 29 January 2008

- ICC Trial Chamber I, Decision on the admission of material from the “bar table”, 24 June 2009

- ICC Appeals Chamber, 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

- ICC Trial Chamber I, Decision on the defence request to reconsider the "Order on numbering of evidence" of 12 May 2010, 30 March 2011

- ICC Trial Chamber I, 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

Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta & Mohammed Hussein Ali, (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

Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey & Joshua Arap Sang, (ICC-01/09-01/11),

- ICC Pre-Trial Chamber II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012

- ICC Appeals Chamber, (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

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

ICTY Cases ICTY Trial Chamber, Prosecutor v Delalić et al, (IT-96-21), Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998

ICTY Appeals Chamber, Prosecutor v Aleksovski, (IT-95-14/1), Decision on prosecutor's appeal on admissibility of evidence, 16 February 1999

ICTY Appeals Chamber, Prosecutor v Tadić, (IT-94-1-A), Judgment, 15 July 1999

35

ECHR Cases ECHR, Camenzind v Switzerland, (Application No. 21353/93), Judgment, 16 December 1997

ECHR, Garcia Alva v. Germany, (Application No. 23541/94), Judgment, 13 February 2001

ICC Documents Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90

The Rules of Procedure and Evidence of the International Criminal Court (9 September 2002) UN Doc PCNICC/2000/1/Add.1 (2000)

Elements of Crimes of the International Criminal Court (9 September 2002) UN Doc PCNICC/2000/1/Add.2 (2000)

UN Documents ILC, Draft Statute for an International Criminal Court with commentaries, 22 July 1994, [online via: http://www.refworld.org/docid/47fdfb40d.html, accessed 24 April 2015]

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)

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)

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

Books Acquaviva, G., Combs, N., McDermott, Y., Heikkilä, M., Linton, S. & Vasiliev S., Trial Process, in: International Criminal Procedure: Principles and Rules, Sluiter, G., Friman, H., Linton, S., Vasiliev, S. & Zappalà, S. (eds), Oxford University Press 2013, p. 489-939

Ambos, K., The Structure of International Criminal Procedure: “adversarial”, “inquisitorial” or mixed?, in: International Criminal Justice: A Critical Analysis of Institutions and Procedures, Bohlander, M. (ed), Cameron May 2007

Boas, G., 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, May, R., Tolbert, D., Hocking, J., Roberts, K., Jia, B.B., Mundis, D. & Oosthuizen, G. (eds), Kluwer Law International 2001, p. 263-274

Cassese, A., Gaeta, P., & Jones, J.R.W.D. (eds), The Rome Statute of the International Criminal Court – A Commentary, Oxford University Press 2002

Damaška, M.R., Two Faces of Justice and State Authority, Yale University Press 1986

Fernández de Gurmendi, S.A., International Criminal Law Procedures: The Process of Negotiations in: The International Criminal Court: The Making of the Rome Statute Issues, Negotiations, Results, Lee, R.S. (ed), Kluwer Law International 1999, p. 217-227

36

Federova, M., The Principle of Equality of Arms in International Criminal Proceedings, Intersentia 2012

Friman, Procedural Law of Internationalized Criminal Courts, in: Internationalized Criminal Courts, Romano, C.P.R., Nollkaemper, A. & Kleffner, J.K. (eds), Oxford University Press 2004, p. 317-358

Karnavas, M.G., Gathering Evidence in International Criminal Trials – The View of the Defence Lawyer, in: International Criminal Justice: A Critical Analysis of Institutions and Procedures, Bohlander, M. (ed), Cameron May 2007

Klamberg, M., Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Nijhoff 2013

Lewis, P., Trial Procedure, in: The International Criminal Court: The Making of the Rome Statute Issues, Negotiations, Results, Lee, R.S. (ed), Kluwer Law International 1999, p. 539-553

May, R. & Wierda, M., International Criminal Evidence, Volume 9 of International and comparative criminal law series, Transnational Publishers 2002

Murphy, P. & Baddour, L., International Criminal Law and Common Law Rules of Evidence, in: Principles of Evidence in International Criminal Justice, Khan, K.A.A., Buisman, C. & Gosnell, G. (eds), Oxford University Press 2010

Orie, A., Accusatorial v Inquisitorial Approach in International Criminal Proceedings, in: The Rome Statute of the International Criminal Court, Cassese, A., Gaeta, P. & Jones, (eds), Oxford University Press 2002, p. 1439-1495

Piragoff, D., Article 69 – Evidence, in: Commentary on the Rome Statute of the International Criminal Court, Triffterer, O. (ed), Nomos Verlagsgesellschaft 2008, p. 1301-1336

Safferling, International Criminal Procedure, Oxford University Press, 2012

Schabas, W.A., The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press 2010

Tochilovsky, V., The Law and Jurisprudence of the International Criminal Tribunals and Courts: Procedure and Human Rights Aspects, Intersentia 2014

Wladimiroff, M., Rights of Suspects and Accused, in: Substantive and Procedural Aspects of International Criminal Law, McDonald, G.K. & Swaak-Goldman, O. (eds), Kluwer Law International 2000, p. 419-450

Zappalà, S., Human Rights in International Proceedings, Oxford University Press 2003

Journal Articles Ambos, K., International criminal procedure: “adversarial”, “inquisitorial” or mixed?, International Criminal Law Review 2003/3, p. 1-37

Ambos, ‘Witness Proofing’ Before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman, Leiden Journal of International Law 2008/4, p. 911-916

Bohlander, M., Evidence before the International Criminal Court – Basic Principles, ERA-Forum 2005/4, p. 543-554

37

Caianiello, M., Disclosure before the ICC: The Emergence of a New Form of Policies Implementation System in International Criminal Justice?, International Criminal Law Review 2010/1, p. 23-42

Caianiello, M., First Decisions on the Admission of Evidence at ICC Trials: A Blending of Accusatorial and Inquisitorial Models?, Journal of International Criminal Justice 2011/2, p. 385-410

Caianiello, M., Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Model¸ North Carolina Journal of International Law and Commercial Regulation 2011/2, p. 287

Crawford, J., The ILC Adopts a Statute for an International Criminal Court, American Journal of International Law 1995/2, p. 404-416

Croquet, N.A.J., The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?, Human Rights Law Review 2011/1, p. 91-131

DeFrancia, C., Due Process in International Criminal Courts: Why Procedure Matters, Virginia Law Review 2001/7, p. 1381-1439

Deprez, C., Extent of Applicability of Human Rights Standards to Proceedings before the International Criminal Court: On Possible Reductive Factors, International Criminal Law Review 2012/4, p. 721-741

Fairlie, M., The Marriage of Common and Continental Law at the ICTY and its Progeny, Due Process Deficit, International Criminal Law Review, 2004/4, p. 243-319

Gaynor, F., Uneasy Partners – Evidence, Truth and History in International Trials, Journal of International Criminal Justice 2012/5, p. 1257-1275

Jackson, J., Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial-Inquisitorial Dichotomy, Journal of International Criminal Justice 2009/7, p. 17-39

Karemaker, R.B., Taylor III, D. & Pittman, T.W., Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence, Leiden Journal of International Law 2008/3, p. 683-698

Kirsch, P., & Oosterveld, V., The Preparatory Commission for the International Criminal Court, Fordham International Law Journal 2001/3, p. 563-588

Packer, H.L., Two Models of the Criminal Process, University of Pennsylvania Law Review 1964/1, p. 1-68

Pizzi, W., Overcoming Logistical and Structural Barriers to Fair Trials at International Tribunals, International Commentary on Evidence 2007/1, Article 4

Robinson, P.L., Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia, European Journal of International Law 2000/3, 569-589

Sheppard, D., The International Criminal Court and ‘Internationally Recognized Human Rights: Understanding Article 21 (3) of the Rome Statute, International Criminal Law Review 2010/1, p. 43-71

Vanderpuye, K., The International Criminal Court and Discretionary Evidential Exclusion: Toeing the Mark?, Tulane Journal of International and Comparative Law 2005-2006, p. 127-178

38

Wald, P.M., ICTY Judicial Proceedings: An Appraisal from Within, Journal of International Criminal Justice 2004/2, p.466-473

Wessel, J., Judicial Policy-Making at the International Criminal Court: An Institutional Guide to Analyzing International Adjudication, Columbia Journal of Transnational Law 2006/2, p. 377-452

Young, R., “Internationally Recognized Human Rights” Before the International Criminal Court, International and Comparative Law Quarterly 2001/1, p. 189-208

Other Sources Schabas, W.A., Prosecutorial Discretion v Judicial Activism at the International Criminal Court, Presentation at the meeting on ‘New Vistas in International Criminal Justice’ sponsored by the Journal of International Criminal Justice, Florence, 16 May 2008

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 via: http://www.icty.org/sid/7745, accessed 24 April 2015]