Obtaining and evaluating evidence at the International Criminal Court

Shinkaretskaya Galina Georgievna Doctor of Law Chief Scientific Associate, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 gshinkaretskaya@yandex.ru Other publications by this author

The International Criminal Court (hereinafter referred to as the ICC) occupies a special place among all international courts, since the purpose of its creation is not to resolve disputes between States, but to prosecute persons responsible for major international crimes ^{[15, pp. 139-145; 16, pp. 419-429; 17, pp. 36-44; 19, pp. 99-110; 20, pp. 851-852; 25, pp. 88-95]}.  The ICC was established on the basis of an international treaty – the Rome status of the International Criminal Court ^[3] and taking into account the experience of two international criminal tribunals:                          

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (1993-2017) ^[4];                                                                                                                                                                                                                  The International Tribunal for Rwanda, established to prosecute persons responsible for Genocide Committed on the Territory of Rwanda and Rwandan citizens responsible for genocide Committed on the territory of Neighboring States in the period from January 1, 1994 to December 31, 1994. (1994-2015) ^{[5; 6; 7]}.

As T.G. Morshakova rightly notes, the standards of fair justice are a necessary component of the ideology of human rights, which in a modern democratic society cannot but determine its basic moral, philosophical, social, political and legal values ^{[23, p. 11]}. The problem of organizing a trial in any international court is not easy and is complicated by the fact that that each court is a separate international organization created on the basis of an international treaty concluded by sovereign States, and the main provisions of the process are included in this treaty. The Court, as an international organization, adopts for itself a regulation in which the rules on the judicial process are set out in more detail.

When two criminal tribunals were created, the question arose as to which process they should follow. The problem was that the tribunals were created as courts for the entire world community, so the ideas and principles of various justice systems, primarily civil law and common law systems, had to be taken into account in their process.  The international community was generally ready to grant the judges of the Tribunals a significant degree of freedom in establishing their procedural law, so that, in the words of A. Fedorchenko, “the regulation of various parties to the judicial process in ad hoc tribunals was formed “on the move”, in the process of practice ^{[24, p. 87]}. The Tribunals have followed the path usually used by the UN International Law Commission, which collects the opinions of States and formulates its recommendations based on their opinions ^[8]. The Tribunals have done a lot of work on the analysis of the criminal procedural law of various countries and its generalization, however, due to lack of time and the need to consider the submitted cases on the merits, many procedural provisions regarding the organization of the process in the Tribunals turned out to be quite vague and already during the proceedings, the judges not only developed their own Rules of Procedure and Evidence, but also in plenary meetings often changed the rules with the help of amendments.

In the negotiations that ended with the adoption of the Rome Statute ^[3], the situation was somewhat different. The Statute was prepared during a large diplomatic conference that developed the Final Act. In paragraphs 5 and 6 of Resolution F of the Final Act, the Preparatory Committee was instructed to formulate draft Rules of Procedure and Evidence, as well as Elements of Crimes ^[10].

Within the framework of the Preparatory Committee, heated debates took place between lawyers of different legal systems. The draft presented as a final document was a compromise between the preference for ambiguity (in order to keep the agreement sufficiently free and encourage 120 countries to sign it) and the opposite need to present a rigid set of criminal elements for adoption.  This approach is connected, among other things, with the fact that international documents trace a different approach to the definition and statement of international criminally punishable acts ^{[21, p. 186]}.

When analyzing the question of the place of this judicial institution in the regulation of international relations and the assertion of the rule of law, the theoretical question of whether the criminal justice system is inquisitorial or adversarial recedes into the background. Many authors point out that currently the division of processes into adversarial and inquisitorial is being blurred, and similar elements are noted in the corresponding systems ^{[26, p. 2-5; 33, p. 5]}. 

The draft Statute of the ICC has been the subject of negotiations for several years, in which representatives of various legal systems – both civil law and common law systems - participated. Both of them involuntarily proceeded from their own concepts of the criminal process, which, according to the Chairman of the ICC Preparatory Commission, became the main obstacle during negotiations on the process in the future International Criminal Court: it was necessary to coordinate very different legal systems, which is incredibly difficult ^{[34, p. 12]}.

At that time, the International Law Commission expressed the opinion that the Statute of the International Criminal Court would mainly be a complementary and procedural instrument ^[14]. During the subsequent work of the preparatory committee, its members approached the wording very carefully, striving to achieve clear norms.  Due to this, the Statute contains a significant number of procedural provisions, so some authors believe that this is what made the Statute a significant stage in the development of international criminal law ^{[32, p. 1111, 1113]}. The ICC proceedings are governed by detailed provisions contained in the Statute itself and similar detailed provisions in the Rules of Evidence, subject to strict amendment procedures. A well-known expert on the ICC law concludes: "The pendulum has swung towards civil law" ^{[28, p.134]}.

The key figure in the trial was the prosecutor, but the rules require that the Prosecutor act impartially as an "agent of justice", ensure the operation of the rule on the burden of proof, and facilitate the discovery and disclosure of exculpatory evidence in addition to those that directly lead to a conviction. The role of the judge has also been strengthened, which has additional powers to search for evidence proprio motu (on its own initiative).

Another feature of the ICC process is the presence and role of the Pre-Trial Chamber. The Chamber keeps the Prosecutor's actions under close control.

As far as evidence is concerned, during the development of the Statute, the balance between legal systems has shifted towards civil law. Unlike the common law system, the ICC does not reflect an “atomized” approach to evidence, when each evidence is considered separately and the final decision is made by aggregating the evidentiary value of individual elements. Instead, evidence is accepted on a holistic basis, as in civil law, where “the evidentiary power of any element of information arises as a result of interaction between elements of the whole information field ^{[29, p. 839]}.

In a number of cases, the international criminal process reveals a departure from scrupulously formalized norms, often applying rather loose criteria to obtaining and evaluating evidence. This gives judges as professionals considerable freedom of action. At the same time, the parties in the process are not always fully informed about which evidence played a decisive role, and which of them were found irrelevant ^{[18, p. 81]}.

It is clearly noticeable in the Statute that the technical rules of proof are not formulated in too much detail, so that they allow for the consideration of as much relevant evidence as possible. Due to this, the ICC Investigative Chamber has been granted broad discretionary powers in the field of evidence. The Chamber itself decides on the "admissibility", "relevance" and "evidentiary value" of evidence (paragraphs 4 and 9 of Article 64 of the Statute and paragraph 2 of Article 63 of the Rules) ^{[3; 2]}. Considering the presented evidence insufficient, the Chamber may request the submission of additional evidence that it considers necessary to "confirm" or "establish the truth" (paragraph 3 of Article 69). Based on the experience of civil law countries, the Trial Chamber not only controls the procedure (paragraph 2 of Article 69 of the Statute), but also the substantive part of the evidence collected (paragraph 4 of Article 69).

The parties only present evidence, and the court itself decides on the appropriateness and admissibility of any evidence at its discretion. Article 69 provides that the court takes into account "the evidentiary value of evidence and any prejudice that such evidence may cause to a fair trial or a fair assessment of the testimony of witnesses." Such a standard for evaluating evidence is very broad, and does not provide either methods or criteria ^{[27, p. 661]}. There is only one clarification: evidence obtained through human rights violations is unacceptable. Evidence obtained illegally is inadmissible in several cases: if “(a) the violation casts substantial doubt on the credibility of the evidence; and (b) the admission of evidence would contradict and seriously damage the integrity of the proceedings”, For example, a forced confession would be unacceptable both under paragraph (a) and (b 69 – on the grounds that it would be "unreliable" and "would significantly damage the integrity of the proceedings."

Thus, the rules regarding the exclusion of evidence correspond rather to the norms of civil law: the court has broad powers, instead of  in order to be strictly guided by a system of imperative rules. Experts on international criminal procedure M. Caiagnello and G. Illuminati write: "The rules on the exclusion of evidence cannot be qualified as mandatory in any way, since they are subject to the discretionary assessment of the judge. They are flexible, not too formal and leave much to the discretion of the judge as a professional lawyer, and from the point of view of common law, this is simply unlimited discretion, which blurs the certainty of the rules and the predictability of their actions" ^{[30, p. 450]}.

The difference in the opinions of lawyers representing the common law and civil law systems regarding the different traditions of obtaining and evaluating evidence was obvious even during the work of the Preparatory Committee. Differences are also noted regarding the standards of the burden of proof. According to paragraph 1 of Article 66 of the ICC Statute, the accused has the right to the “presumption of innocence” and the burden of “proving the guilt of the accused” is clearly assigned to the prosecution, and the limits of proof are the civil law standard - "beyond reasonable doubt" (paragraph 3 of Article 66) ^[3]. These requirements for the prosecution – to bear the burden of proof and evaluate the evidence in accordance with the standard presented – are a clear product of civil law. However, it is known that both of these requirements contain a lot of obscurity, so the courts of civil law countries have already spent a lot of effort to clarify their content. It is not yet certain that the judges of the International Court of Justice will be willing to spend the same amount of effort, especially given that the standards of proof have been transferred to a new context, especially since  The Trial Chamber is endowed with a unique set of powers, so it is unlikely that it can be equated with the internal court of any civil law State. Therefore, it is difficult to say how the ICC will apply the definition of reasonable doubt. Let us turn to the practice of the International Tribunal for the Former Yugoslavia. The Trial Chamber of the ICTY in the case of the Prosecutor v.  Dalalich ^[13] referred to the case of Green v. R ^[12], emphasizing that the method of sentencing is subjective and based on the experience and judgments of an expert on the facts. The clause "beyond reasonable doubt" was rejected as a standard that was proposed to be included in Article 14 of the International Covenant on Civil and Political Rights ^[1] during its preparation, and the proceedings of the European Court of Human Rights ^[9].

However, this standard of proof has been consistently applied in international criminal trials. The International Military Tribunal in Nuremberg applied the standard of reasonable doubt and explicitly stated in its decision that the defendants Schacht and von Papen should have been acquitted on the grounds that the evidence against them was not confirmed in the evidentiary process ^[11]. It should be noted that the Tribunals for the Former Yugoslavia and Rwanda have repeatedly used the "beyond reasonable doubt" standard. In the already mentioned case "Prosecutor v. Dalalich" ^[13], the Trial Chamber stated: "The Prosecution has a legal obligation to investigate the case of the accused to the limits of reasonable doubt (beyond reasonable doubt). Upon completion of the case, the accused should have no doubt that the case has been properly considered."

It is doubtful, of course, that the ICC judges will question their own decision-making process, but it is safe to say that their conclusions will lie between "substantial doubt" and "absolute certainty". Therefore, it is logical to assume that, acting in the criteria of common law and civil law, judges are unlikely to come to critically different decisions. According to the Statute (Article 74) ^[3] judges are required to submit written arguments containing a "complete and reasoned statement" of the conclusions, but the rules do not say anything about whether the arguments of the majority of judges should coincide.

Thus, the methods of decision-making by the Trial Chamber are not clearly defined and it may be recalled that the tradition of dissenting opinions of judges has spread in the practice of international criminal tribunals. Although Article 74 encourages unanimous decisions, ICC judges may also be given the right to formulate special or separate opinions.

In international judicial proceedings, the form (written or oral) of the evidence presented is also important. Neither the Statute nor the Regulations ^{[3; 2]} contain a direct obligation to submit evidence in writing, as is usually the case in the civil law system. This means that oral presentation of evidence is also possible. Paragraph 2 of Article 74 simply states that the chamber should base its decision "on the assessment of evidence and the course of the entire proceedings." It also says that there is a general requirement for witnesses to "testify in person."

With all this, there is an exception to the provision on oral evidence. In article 56 of the Statute  The Pre-Trial Chamber, at the request of the Prosecutor, may allow testimony to be given in the event that there are grounds to believe that there will not be an opportunity to testify later, and evidence may not be available ^[3]. Similarly, in paragraph 2 of Article 69, the Court may also authorize the viva voce (oral) or video or audio recorded testimony of a witness, as well as the presentation of documents or recordings, subject to compliance with the provisions of this Statute and in accordance with the Rules of Procedure and Evidence, provided that these measures should not prejudice or contradict the rights of the accused. Paragraph 2 of Article 69 states that the testimony of a witness at the trial is given in person, except in cases provided for by the Rules and Rules of Evidence.

Oral testimony in the personal presence of a witness is a fundamental provision, which does not mean at all that the court cannot accept written materials (paragraph 2 of Article 69). Preference is given to testimony in court, but exceptions are allowed. In certain circumstances, testimony may be taken orally or recorded on video or audio devices. It is also possible to submit documents, written transcripts (paragraph 2 of Article 69 of the Statute, Rules 67 and 68 of the ICC Rules of Procedure) ^{[3; 2]}. In particular, the use of transcripts of testimony obtained during other trials continues the practice of the International Criminal Tribunals for Rwanda and Yugoslavia, although, strictly speaking, they represent a deviation from the principles of giving evidence in direct presence and orally. These deviations deprive the accused of the opportunity to see a witness, but the ICC has gone beyond the practice adopted by international criminal tribunals and allows the acceptance of testimony subject to cross-examination at certain points in the proceedings (Rule 68). Challenging the admissibility of written testimony does not make much sense, given that the Rules of Procedure and Evidence set the main goal of a complete and accurate recording of the entire process (paragraph 10 of Rule 121). This instruction can be interpreted in different ways, for example, as obliging the full disclosure of all materials, as was done in the process of international criminal tribunals. Such an interpretation is possible all the more because, according to paragraph (8) (b) of Article 64, during the trial, the presiding judge may give instructions regarding the conduct of the proceedings, including to ensure that it is conducted fairly and impartially. K Ambos notes: "from the point of view of common law, the risk that the Trial Chamber will rely rather on its own protocols, instead of deciding the case on the basis of evidence obtained in this particular process, is a completely real complication of the court case ^{[26, p. 32]}.

However, the extent to which judges can take into account information obtained not during a particular process is limited by the clear provision of paragraph 2 of Article 74 of the Statute that "The Court can base its decision only on the evidence presented to it and considered by it during the trial" ^[3].

Given that the above norms clearly lack certainty, it is clear that the judges will conduct the process in accordance with their own preferences, that is, practically in accordance with their previous experience. This means that judges from the common law system may agree on the interpretation of some facts, but judges from the civil law system may be inclined to attach more importance to the positions of the parties. As for the agreement on the facts, it will not be binding on the Chamber, and the Chamber, in turn, has the right to hear other testimony, especially if the investigation has not confirmed the facts presented (Rule 69).

The defense is granted the same powers in the field of interviewing witnesses as the prosecution (paragraph (1) (e) of Article 67), but the procedure for cross-examination is not provided.

As already mentioned, the presiding judge may give instructions regarding the conduct of the proceedings (paragraph (8) (b). Article 64); in the absence of such instructions, the Prosecutor and the defense agree on the order and procedure for presenting evidence to the Trial Chamber (Rule 140). In all cases, the defense is given the opportunity to speak last (Rule 141).

The Statute does not say anything about cases of witnesses refusing to testify or from giving full testimony. Limited opportunities are provided to the Court in accordance with Article 71 of the Statute ^[3]. True, it refers to sanctions for inappropriate behavior in Court, but one of the provisions can be applied to refusal to testify: The Court can punish persons present in Court for inappropriate behavior, including for disrupting proceedings or deliberately refusing to comply with its orders. However, the accused can never be forced to act as a witness. This right of his follows from the so-called right to silence, which is considered as one of the fundamental human rights and which is enshrined in article 14 of the International Covenant on Civil and Political Rights: 3. Everyone has the right to consider any criminal charge brought against him … g) not to be forced to testify against himself or to plead guilty ^[1].

According to paragraph 1 of Article 69, each witness, in accordance with the Rules of Procedure and Evidence, undertakes to give truthful testimony. It does not provide for the widespread custom in the common law system to take the oath of a witness, which is probably due to the mixing of elements of common law and civil law in the ICC procedure.

Conclusion

The regulation of the procedure for obtaining and evaluating evidence in the proceedings of the International Criminal Court is fundamentally different from the same regulation in other international courts. The essence of the process in the International Court of Justice or in the International Tribunal for the Law of the Sea is the relationship of rights and powers between the judicial institution and the disputing States. In the process of the International Criminal Court, the main goal is to ensure that this process is consistent with the criminal process adopted in States, which makes the International Criminal Court a criminal justice institution rather than an international court.

The ICC process is a mixed system of norms and principles that is neither entirely adversarial nor inquisitive. Hence, a number of inconsistencies arise between the general structure of the process, which seems to be aimed at ensuring the rights of the parties and therefore adversarial, and provisions based on the initiative of judges.

Being an innovation in international law, the ICC contains some elements that have not yet been encountered in international justice, namely, the Prosecutor. The analysis shows particularly noticeable disproportions between the powers given to the Prosecutor and the Defense at the pre-trial stage. These imbalances are fraught with the fact that the ICC can turn into an empty invention, since it will become a combination of incompatible legal systems, unacceptable at the most crucial stages of the proceedings.