Appeal judgment raises serious questions regarding the fairness of the ICC’s approach to evidence

Legal Adviser Jonathan O’Donohue provides an initial reaction to last Thursday’s summary judgment by the ICC Appeals Chamber confirming the conviction of five persons for offences against the administration of justice in the Bemba case.

The summary judgment delivered last week by the Appeals Chamber in the Bemba et al. case raises several human rights issues regarding the ICC’s evidentiary practice. Over the next weeks, with the help of the International Criminal Justice Clinic at Melbourne Law School, Amnesty International will study the full 699 page judgment and comment in detail on some of these issues in future Human Rights in International Justice opinion pieces.

In particular, the Appeals Chamber’s summary:

• Appeared to rule out a proper determination on whether certain evidence was collected unlawfully in violation of Bemba’s right to privacy by finding that the ICC is unequivocally barred from considering the application of national laws when evidence is collected by a state.
• Upheld a decision to admit Dutch intercepts of telephone conversations between Bemba and his lawyer on the basis that defence counsel-client privilege cannot extend to communications in the furtherance of criminal activities, without considering the implications for the right of the accused in Article 67(1)(b) to communicate freely with counsel in confidence.
• Endorsed the Trial Chamber’s practice of not ruling on admissibility of evidence when objections are raised, including in the final judgment, which could have major implications for the ability of the accused to present a defence and for the transparency of the justice process.

But by way of introduction to the forthcoming detailed commentaries on the decision, I want to first highlight some broader concerns about the admission and adjudication of evidence in international criminal practice.

Fair trials and the rights of the accused are firmly embedded in international criminal law. Indeed, the rights of the accused in the ICC Statute build significantly upon the fair trial rights in Article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR). Fairness is rightly acknowledged as fundamental to the integrity and credibility of international criminal courts; a vital requirement of international justice and safeguard of the rights of the accused; and essential to ensure public confidence in the trial record regarding often highly controversial events. As Robert Jackson stated during the drafting of the Nuremberg Charter:

…we must see that it [the trial] is fair and deliberative and not discredited in times to come by any mob spirit.

Yet, despite the strong rhetoric and the statutory safeguards, the commitment to fairness begins to ring hollow upon a closer examination of practice, particularly of the admission and adjudication of evidence.

A first red flag can be found in a 1948 study by the UN War Crimes Commission concerning human rights arising from trials of war criminals in post World War II trials. It concluded that ‘a clear attempt was made to secure an alleged war criminal his rights to a fair trial’ including the right to present a defence. However, noting a number of evidentiary practices, including the widespread admission of hearsay evidence and eyewitness affidavits that could not be cross-examined by the defence during trial, the Commission acknowledged:

the aim has also been to ensure that the courts are not so bound by technical rules that the guilty shall benefit from the exceptional circumstances under which war crimes trials are necessarily held, and so escape just punishment.

45 years later in 1993, when fair trial rights had been more clearly codified in international human rights law, the UN Secretary General’s report proposed incorporating the vast majority of the rights in Article 14 of the ICCPR into the ICTY Statute, emphasizing that it was ‘axiomatic’ that the Tribunal respect the rights of the accused at all stages of the process. Yet, the Rules and Procedure of Evidence adopted by the judges followed the practice of the post-World War II tribunals by providing very broad powers to admit ‘any relevant evidence which it [a chamber] deems to have probative value’. In 2006, the ICTY judges amended the rules to expand their powers further providing for the admission of statements of persons who were unavailable to testify and therefore not able to be cross-examined by the defence, even if such statements go to the acts and conduct of the accused.

The ICC Statute contains similar broad powers to admit evidence and, in 2012, at the recommendation of the ICC judges, the Assembly of States Parties also adopted amendments to the Rules of Procedure and Evidence that permit the admission of prior recorded testimony of unavailable persons. Significantly though, Article 69(4) of its Statute requires that a Chamber must take into account any prejudice that the admission of evidence may cause to a fair trial in its decision-making.

Arguments in favour of permitting the judiciary such a broad discretion when it comes to evidence are not without merit. International criminal courts have the extremely challenging task of prosecuting cases and establishing the truth in highly complex situations where accessing evidence and gaining the confidence of witnesses during or following crises and conflicts may be difficult. Given that a panel of judges, not a jury of laypersons, considers evidence, there may be some room for relaxing some of the strict rules of evidence applied especially in common law jurisdictions. However, this requires extreme caution and fair trial safeguards, especially recognizing that many of the ICC judges are experts in international law with limited or no prior experience in the practical application of criminal law and the assessment of evidence.

After all, adjudicating evidence is not merely a technical matter – it goes directly to the fairness of the trial. A trial cannot be fair where evidence: is admitted or relied upon that undermines the impartiality of the tribunal; is non-transparent; cannot be challenged by the defence; or violates the rights of the accused to a fair trial. The substantial safeguards of the rights of the accused and fair trials in the ICC Statute reinforce this. Article 69(7) – which requires that evidence obtained in violation of the Statute or in violation of the internationally recognized human rights shall not be admitted if it would be antithetical to or would seriously damage the integrity of the proceedings – must therefore be applied ensuring full respect of the rights of the accused.

A number of aspects of the ICC Appeals Chamber decision, and indeed the practice of international criminal courts generally, may warrant asking whether certain practices relating to evidence go too far towards ensuring that the guilty do not “escape punishment” at the cost of a fair trial? If so, stricter rules on evidence must be introduced to ensure the rights of accused persons and to protect the very integrity of international criminal justice.

ICC Judge Van Den Wyngaert in her dissenting opinion in the Katanga judgment put it perfectly when she stated:

Trials like these are difficult and complex matters, both from a legal and evidentiary point of view. Moreover, they are challenging on the human level. Sympathy for the victims’ plight and an urgent awareness that this Court is called upon to “end impunity” are powerful stimuli. Yet, the Court’s success or failure cannot be measured just in terms of “bad guys” being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just.

For too long, these issues have fallen below the radar presumably because of their technical nature, the fact that the evidence in question is often redacted and the lack of human rights monitoring of international criminal trials. This has to change.