Week 5 - Evidence

Evidence in ICL

Law of evidence encompasses legal rules and principles that govern proof of facts in legal proceedings → need to have a proper procedure designed to guarantee fair trial and that rights of suspects and witnesses are protected

Common law (adversarial systems)

• strict and technical rules regarding the admission and exclusion of evidence

• System of Admission: selection/admissibility of evidence immediately determined, but weight is determined at a later stage

  => so the jury is not confused and so it doesn’t have an unfair impact on accused (layman, not judges)

Civil law (inquisitorial systems)

• flexible approach of “free evaluation”

• System of submission: Defer admissibility and weight determinations until later stage/ end of trial as part

  of overall evaluation of the evidence

• => allows a huge amount of discretion to judges (because professional judges, not layman)

Hybrid Approach International Courts/Tribunals institutional design and the rules of evidence and procedure

• Founding instruments lack specificity, leaving substantial discretion to the judges

• Evidentiary standards are more permissive than common law jurisdictions; because judges adopt free evaluation approach

• Benches have judges from both common and civil legal traditions

Law of Evidence Evolution: at Nuremberg

IMT Charter Art 19 reflects “free evaluation” approach

• Move away from reliance on witness testimony

• NIMT cases referred to as ‘documentation trials’ (Justice Jackson)

  • free evaluation approach suited for Nuremburg due to nature of cases; nazi's as methodical record keepers; moved away from witness testimony and focused on hard facts and documentary evidence

• Laid the groundwork for future ICL cases

Law of Evidence Evolution: at ad hoc Tribunals

MICT r.105: Not bound by national rules & may admit any evidence it considers to have probative value

• ICTY/R had more discretion compared to Nuremberg, because of this optional language

  • `Opens flood works, but allows them to not admit evidence if not probative

• Extensive use of expert witness testimony

• Advent of forensic evidence and new technology led to novel forms of evidence: (unless put forward arguments that showed reliability difficulties, not able to raise inadmissibility )

  • Forensic evidence & satellite imagery at ICTY, e.g. aerial images helped in identification of mass graves (Krstić, Blagojević, Popović et al, and Tolimir)

  • Radio broadcasts at ICTR, e.g. ‘Media case’ (Nahimana et al) (ICTR radio broadcasts: the tools used by the accused that produced the most valuable evidence at trial

    broadcasts recorded & showed as evidence )

Relevance

pertinence of evidence to an allegation or issue

Probative value

ability of evidence to prove or disprove an alleged fact

Reliability

refers to (i) circumstances such as origin, content, corroboration, truthfulness, voluntariness, and (ii) trustworthiness of evidence

Law of Evidence Evolution: at ICC, SCSL, ECCC & STL

• Period of rapid technological growth: popularisation of the internet, esp. social media / other interactive web services; widespread use of mobile phones (with cameras and GPS); ability to intercept communications; and rise of drone technology → overabundance of data, almost too much to process at this stage & also publicly accessible

• Art 69(4) RS: “the court may rule on the relevance or admissibility of any evidence…”

  • Similar to ICTY/R provisions

  • In practice, all evidence submitted, but not admitted until later date when holistically evaluated (See Bemba, noted Chamber’s discretion in choosing between “admission” and "submission”

  • Initially, OTP's overreliance of witness testimony very criticised, by 2011 better equipped and better evidence (e.g. satellite imagery)

Art. 66(2) + Art. 67(1)(i)

Burden of Proof

Art. 66(2): ‘the onus is on the Prosecutor to prove the guilt of the accused’

Art. 67(1)(i): accused’s right to not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal

→ so even if want to raise a defense, no need to prove it, just need to substantiate it

Evidentiary standard of proof (Art. 61(7) and 66(3) RS)

Standard → Confirmation stage: Art 61(7) = “substantial grounds to believe”

• documentary or summary evidence is usually enough at this stage

• higher than at ICTY/R “prima facie”, concerns about “trial before trial”

Standard → during Trial stage: Art. 66(3) = “beyond reasonable doubt”

• Standard is applicable to any facts indispensable for entering a conviction

• the fact that exculpatory evidence has not been submitted is not a valid argument (“no doubt”)

Collection of evidence: Prosecution

ICCst: Art. 54 (3)

MICT: Rule 36(b)(i)

May summon and question suspects, victims, and witnesses and record their statements, collect evidence, and conduct on-site investigations & includes orders for cooperation to the state concerned

Collection of evidence: Defense

ICCst: Art. 67(1)(b)

MICT: Art. 19(4)(b)

Right to adequate time and facilities to prepare a defence – but cannot place duty on state concerned to cooperate

• no duty on States to cooperate with defense; can lead to obstruction

  -upside is that defense is not bound by the same rules as prosecution, so more leeway (but barrier for cooperation)

  -certain perpetrators are on the side of the state, so sometimes works in favour

Collection of evidence: Chamber

ICCst: Art. 57(3)PTC / Art. 64(6) TC

MICT: Rule 55

General power of the Chamber to issue orders necessary for the purposes of an investigation or for the preparation or conduct of the trial.

• Art. 56: can grant prosecution authority to record evidence otherwise not available at trial (“unique investigative opportunity”

→ Ongwen (recorded evidence, even before charges were confirmed)

• → only if probative or if risks if available at trial

Collection of evidence: Victims

Only at ICC

Art. 69(3); not a right prescribed to victims, but within chambers power to ask for all evidence in determination of truth (May tender evidence pertaining to the guilt or innocence of the accused, as well as to challenge the admissibility of evidence)

• so as long as not duplicative evidence or if it interferes with rights of the accused, can submit in trial -> Lubanga case (quite authoritative rule)

Disclosure of evidence: Prosecution

Art. 67(2) & Rules 76 et seq

MICT Rule 71 & 73

The right to adequate time and facilities to prepare their defence includes timely and full access to evidence – fundamental feature of a fair trial & covers exculpatory and mitigating evidence, and other relevant material

• fundamental feature of fair trial (exculpatory and mitigating evidence + any other relevant material)

• extensive obligations on prosecutor; if not done in accordance with provisions, can result in dismissal

• -> Lubanga = failed disclosure, court collapsed

Disclosure of evidence: Defence

ICC: Rule 78 & 79

MICT Rule 72

Must allow the Prosecution to inspect documents in their custody which are intended for use during trial & disclosure and notification of the intent to raise an alibi/special defence along with any supporting evidence

• similar; disclosure necessary when alibi/special defense

• in practice: if introduced at later stage usually still admissible

Disclosure of evidence: Exemptions

ICC: Rule 81

MICT Rule 76

Documents prepared by a party, its assistants, or representatives in connection with the case; origin of confidential information used solely for the purpose of generating new evidence

Provisions may also apply to specific information in the possession of the accused

Facts requiring proof: Agreements on evidence

ICC: Rule 69

MICT Rule 70 (N)

Parties may agree that an alleged fact is not contested

and consider it as being proved – unless the Chamber

decides that a complete presentation is required in the interests of justice/victims

Facts requiring proof: Judicial Notice

ICC: Art. 69(6)

MICT: Rule 115

Chamber shall not require proof of facts of common

knowledge, in addition to already adjudicated facts at

the ad hoc tribunals, but shall take judicial notice

thereof (when dealing with similar facts & actors; interests of expediency ad efficiency (common knowledge))

• Judicial notice of previous adjudicated facts especially important with tribunals (all related to the same conflict, no real reason to be proving the same contextual information when it's already been done)

Disclosure of Evidence: common vs civil law

Civil law: all exonerating and incriminating evidence is accessible right from beginning

Common law: extensive disclosure obligations (for evidence favourable to accused, since they have a right to know)

• Alternatively, defense less obligations, prosecution more restrictive

3 Part Admissibility Test

Bemba → pursuant to Art. 69(4) and Rule 64

1. Is it relevant to the case? (e.g. direct or indirect evidence)

2. Does it have probative value? (distinguished from weight –

   includes reliability and potential to influence a

   determination)

3. Does it outweigh any prejudicial effect potentially caused by its admission? (if it is prejudicial towards accused, or risky for witness/victims)

4 categories of evidence

1. Testimonial*

2. Documentary*

3. Physical

4. Forensic

(* = primary focus at ICC)

ICC system of submission

Chambers usually rule on admissibility in the final judgment as part of a ‘holistic assessment’ in light of the totality of the evidence

→ Exception for certain items of evidence, generally when digital & central to the case – e.g. Bemba / Ayyash

→ Evidence is generally admitted rather than excluded, but is given less weight

→ Bemba et al (ICC): largely communications and email evidence, in the interests of the rights of the accused to know if it was admissible at an earlier stage so it could prepare a proper defense

→ Ayyash et al (STL): all digital evidence: would need to know if entire body of evidence was admissible (was only decided at the end)

Testimonial Evidence

Credibility = sincerity of the witness (the situation as they believe it to be, irrespective of factual truth)

Reliability = accuracy of testimony

→ Chamber: credibility + reliability = to determine weight

→ factors to be considered by chamber

Testimonial Evidence: factors to be considered by Chamber in determining weight of evidence

Non-exhaustive list:

˗ In-court demeanour & response to cross-examination

˗ Role in the events in question & basis of their knowledge

˗ Relationship to the accused

˗ Plausibility and clarity of testimony

˗ Contradictions/ inconsistencies between previous statements and other evidence or prior examples of false testimony

˗ Any motivation to lie or indication of bias

˗ Presence/absence of corroborating evidence

˗ Criminal history

Ayyash et al. para. 300 (Testimonial Evidence)

Chamber can accept just a part of a witnesses’ testimony/statement and reject others, as long as the two are not ‘inextricably linked’ (see also Ngudjolo, para. 168 & Ndahimana, para. 183)

(Chamber may also rely upon the testimony to the extent that is corroborated by other reliable evidence)

Challenges to the assessment of testimonial evidence

˗ Cultural/linguistic factors

˗ Use of interpreter

˗ Time lapse

˗ Pressure of courtroom setting

˗ Mental health

Testimonial Evidence: Fact witnesses

Testify to their knowledge of relevant facts, i.e. what they saw, heard or know – includes ‘recognition’/ ‘identification’ witnesses

Testimonial Evidence: Expert witnesses

• By virtue of some specialised knowledge, skill or training can assist the Chamber in understanding/ determining an issue in dispute

• An expert should:

  • Not offer an opinion on the criminal liability of the accused

  • Stay within the confines of their area of expertise

  • Be impartial, neutral, objective and/or independent

  • Not be ‘too close’ to the party/case – e.g. Akayesu (tried to get co-defendant to testify)

• Allegations of bias addressed through cross-examination

• Challenging party may call its own experts on the same issue (this is adversarial, they did this in Ongwen)

Lay witnesses may also provide

1. Opinion evidence, i.e. conclusions drawn from events they have personally witnessed or from facts with which they are familiar

2. Summary evidence, i.e. an overview of numerous pieces of evidence /material relevant to the case

Documentary Evidence

Authenticity, relevance and indicia of reliability

Documentary evidence includes e.g.:

1. Business or government records (Records ordinarily produced in the normal course of business of an organisation or workplace e.g. call data records automatically generated by telecom companies = inherently authentic)

2. Digital evidence (Information and data stored on, received or transmitted by an electronic device) unless scientific analysis has been applied, then forensic evidence

Authenticity criteria (Documentary Evidence)

Authenticity: whether a document is what it professes to be in origin and authorship. A document may be:

• Self-authenticating (if official and publicly available);

• Agreed upon by parties as being authentic;

• Prima facie authentic and reliable due to logo, date, stamp, letterhead etc;

• Shown to be authentic/reliable by tendering party through the provision of additional information

Assessment of documentary evidence

1. Check for (even marginal) relevance of the document to the proceedings, e.g. temporal alignment

2. Determine its authenticity (check authenticity criteria)

3. Examine the indicia of reliability: internal inconsistencies; source/author of the document & their role in the events/relationship to the accused or case; chain of custody prior to submission; any other relevant info

→ The party seeking its admission must prove it is prima facie reliable

→ AFTER this, then determine weight

Flexibility

Defining Factor Admissibility Regime

• MICT Rule 105: may admit any evidence it considers to have probative value

  • Unhindered by technical rules & expansive approach to evidence (inquisitorial system) because prof judges

• ICC St. Art. 69(4): The Chamber may rule on the admissibility or relevance of evidence, on application of a party or on its own motion & may assess freely all evidence submitted in its determination (R.63(2))

  • Same flexible approach as the ad hoc tribunals

  • Raises issues of fairness in complex and varied situations due to length of the proceedings in complex intl trials (less potential for judicial notice)

  • Chamber has proceeded in favour of system of submission with admissibility being deferred to final deliberation – part of ‘holistic assessment’ of all evidence submitted

  • Evidence causing prejudicial effect OR if interferes with human rights must be excluded (high standards)

Admission of written statements

Inherent conflict with human rights due to the accused’s right to obtain the attendance of & examine witnesses against them (fair trial rights & ICC St. Art. 67(1)(e))

→ according to Art. 67(1)(e), any testimony that is recorded will not be able to be relied upon if it cannot be cross-examined

• Witness statement = written testimony, documentary form of live testimony "an account of a persons knowledge of crime recorded on due procedure during the course of an investigation"

Admission of written statements at the Tribunals

MICT Rule 110: may admit a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment

+Factors in favour of admitting the written statement include:

• evidence is of a cumulative nature; relates to historical, political or military background; concerns the impact of crimes upon victims; etc

-Factors against admission: overriding public interest in oral presentation of the evidence; demonstrable unreliability or prejudicial effect; other factors mandating cross-examination

• MICT Rules 112-113: covers situations where the witness is unavailable or has been subject to interference

ICC RPE Rule 68 (prior recorded testimony)

Admission of Written Statements ICC

• R68 amended by ASP in light of extensive witness interference in the Kenya case

  • Art. 69(2) remains the standard. If not able to testify in person, then you refer to R68 if this case warrants an exception

Allows the introduction of prior recorded testimony provided it would (1) not be prejudicial/inconsistent with the rights of the accused AND (2) if 1 or more of the sub-rules are met:

1. R. 68 (2)(a): Prosecution and Defence had the opportunity to examine the witness during the recording

2. R. 68 (2)(b): goes to proof of a matter other than the acts and conduct of the accused. Must consider whether: the written testimony relates to issues materially in dispute; is cumulative or corroborative; covers background information; serves the interests of justice; has indicia of reliability

3. R. 68 (2)(c): person has died or due to obstacles cannot be testify orally

4. R. 68 (2)(d): person has been subjected to interference

*note that option to split testimony if not inextricably linked still applies

How to assess reliability of written statements?

Assessing reliability:

1. How was the evidence obtained/recorded

2. Source

3. Lack of testing through cross examination?

4. Given under oath?

5. Use of an interpreter?

6. Any inconsistencies?

7. Any corroboration or other reliable evidence?

8. Does it go to the acts and conduct of the accused?

indicia of reliability

A test used by courts when a hearsay statement does not fall under a specific hearsay exception. A court may nonetheless admit the hearsay statement into evidence when the statement and the circumstances around said statement indicate that it is reliable and trustworthy.

Mandatory exclusion of Evidence

Not every human rights violation would give rise to an exclusion of evidence – implicit hierarchy of rights e.g. ECtHR Art 3 v Art 6 or Art 8 (e.g. a not-verified digital evidence (social media post) not enough to be categorically excluded)

→ MICT Rule 117: Must show an egregious or serious violation that would cast substantial doubt on the reliability of the evidence or would seriously endanger the integrity of the proceedings

→ ICC Art. 69(7): Chamber must consider whether the evidence was obtained in violation of the Court’s

statutory scheme or internationally recognised human rights

• Same standard as ad hoc tribunals

• Broad discretion in determining whether the violation casts substantial doubt on the reliability of the evidence or would seriously damage the integrity of the proceedings

• Digital evidence – right to privacy, e.g. Bemba

Groome Article Argument 1

1. Poor quality & unreliable evidence: increases risk of miscarriage of justice; undermines quality and credibility of the record (or perception thereof); unnecessarily prolongs proceedings; costly – e.g. Gbagbo / Ngudjolo

• Improve quality of investigations & collect best possible sources when collecting evidence with full disclosure to the Defence

• Enforce Prosecutor’s duties under Art. 54(1)(a) to ensure evidence only credible/reliable evidence is presented – order the Prosecution to outline taken to verify evidence and sanction failure

Groome Article Argument 2

2. Evidence that is repetitious, secondary or proves collateral/ irrelevant issues that do not advance the case

• Ensure parties focus on the central issues in dispute & active effort to prevent eliciting of duplicative/ only remotely relevant evidence

• Chamber should require detailed particularisation of charges - helps delineate the case & ensure a clear understanding of the scope of the facts (note Regulation 55 ability to re-characterise charges)

Groome Article Argument 3

3. Time spent litigating the admission of evidence, consequently affecting the cost, quality, legitimacy and effectiveness of international criminal proceedings

• Strict, clear and uniform conditions of admissibility – to reduce ‘evidential debris’ without prejudicing either party

• Policing of admissibility conditions, including requiring parties to justify the need for duplicative/materially similar evidence – each party must establish these conditions are met

• Introduction of a no-case-to-answer stage at the end of the Prosecution’s case, noted in Ruto and Kenyatta

Procedural options for reducing the amount of evidence:

-A (quasi-)dossier approach: copies of evidence the parties wish to present at trial

-In-depth analytical chart of evidence at the confirmation stage / footnoted DCC

-More proactive management of the evidential process by the Chamber, including calling their own evidence (especially expert witnesses)

Evidence, Past Cases and the Future

With increasing internet/rise in tech + advancements in storage and analysis → we see a move away from witness testimony

Pros:

• documentary evidence more “factual”

• documentary evidence doesn't change over time

• potential to get evidence from victims without retraumatization (still role for victims but without the trauma)

• memory problems with live victims

Cons:

• (being mindful that witnesses are not often victims) if they are, then can give an oral testimony that might be more impactful

• Expert wintess testimony can be helpful

Ayyash et al (STL)

Digital explosives evidence and telecommunications evidence:

• evidence of a conspiracy to commit terrorist acts

• case relied entirely on circumstantial evidence + first time telecommunications evidence.

• Prosecution divided presentation of evidence into (1) forensic evidence relating to the attack, incl. explosion reconstruction; (2) evidence of the preparatory acts (video footage to corroborate forensic evidence); and (3) identity and roles of the accused (calls, establish patterns, “business records”)

• both relied primarily on call data records provided by Communication Service Providers

• paved the way for Al Mahdi

Al Mahdi (ICC)

Satellite images and open source evidence:

• Google Earth images and Youtube videos showing the destruction of cultural property, OTP used an interactive digital platform to create 360⸰ visuals

• open source evidence, well documented, public statements, no attempts to hide attacks

• BUT valid grounds to challenge google earth admissions -> because no specific date & time (no additional step of seeking raw images, or question google employees, and no one on the ground to verify accuracy)

• Judges can take a role to verify information, but they are also in charge to see if later evidence is still admissible

Bemba Art 70 case (ICC)

Digital financial evidence, intercept evidence and digital communications evidence:

• 3 main prongs to the investigation:

1. “following the money” through wire transfers made via Western Union

2. call data records, and surveillance of email communications (from Bemba’s laptop)

3. social media photos (Facebook)

→ raised issues of attorney-client privilege and the right to privacy (includes financial information)

→ Court: emails were already sent while he was in detention & they didn’t engage with facebook photos

• defense objected to all grounds of evidence; chamber rejected, but said right to privacy CANNOT be interfered with EXCEPT in accordance with the law

• because intl criminal case, they felt those safeguards were in place so the infringement was justified on that basis

Al-Werfalli (ICC)

Social media posts:

• first ever arrest warrant based solely videos of executions (7, which formed the basis of the charge of murder as a war crime).

• Proceedings now ended due to his passing: so we don't know the exact role of digital evidence but we know it is enough for an arrest warrant

Future of Evidence ICL

Witness testimony is no longer the critical body of proof & previous cases suggest that digital technologies are profoundly changing international criminal investigations and prosecutions in two distinct ways:

(1) the data and digital information produced by the use of digital devices has created a new and fruitful body of potential evidence; and

(2) new technologies are changing the landscape of evidence presentation

Conflict in Syria & work of IIIM, CIJA and Syrian Archive – most documented conflict in history (“citizen journalism”)

Conflicts in Ukraine, Iraq, and Afghanistan – use of drone technology for surveillance & weaponry

→ open source info (blessing if properly treated & checked)

Open Source Information

Open source information

• Publicly available information that anyone can obtain by request, purchase, or observation.

• Includes but is not limited to: news/ blog articles, PDF reports/other docs found on the internet, visual and audio recordings, satellite imagery, internet archives, websites and databases & social media posts and user-generated material such as videos and photos posted on the web.

• Methodological challenges of using open source information in legal cases, such as: reliability, availability, and security – difficulty in verifying exact location, date, time & identifying the individual (expertise required) à markers of authenticity noted in Katanga and Ngudjolo

• Risk of information being removed from platforms before being preserved & security of eyewitnesses and those who gathered the information first-hand, or even bystanders visible in a photo or video

Future of Evidence ICL: concerns & solutions

Concerns regarding the fairness of proceedings, the equality of arms, and the balancing of resources.

1. Digital presentation of evidence may lead to bias and inequality between D/P

2. Channelling the mass amounts of information available into a court of law may create an unimaginable backlog and delay in proceedings

Potential solutions/future considerations

1. Introduction of digital evidence should be deliberate, educated and careful

2. Must involve the Defence earlier in the process to analyse the raw data and ensure the fairness of the proceedings

3. Investigators and prosecutors must continuously adapt their policies and practices to address novel legal issues involving digital evidence & stay up to date with new technologies and devices

4. Consider right to privacy