Admitting mistakes on admitting evidence – It’s not too late for the ICC to get it right.

Admission of evidence ICC fairness proceedings
Looking in the evidentiary haystack for the probative needle


Building on initial concerns about the ICC’s approach to evidence in the Bemba et al. Appeals Chamber judgment, Chiara Loiero, Legal Assistant at Amnesty International’s Centre for International Justice, criticizes the ICC’s emerging practice of deferring any consideration on admission of evidence until deliberating the judgment.

On 8 March 2018, the ICC Appeals Chamber issued a judgment on the appeals against the verdict and sentences in the Bemba et al. case, largely confirming the convictions of the five accused for offences against the administration of justice. In doing so, it endorsed the Trial Chamber’s approach to admitting evidence, which, I argue, constitutes an improperly broad interpretation of the statutory framework.

The evidence regime set out in the Rome Statute is a rather flexible one; parties are primarily responsible for introducing evidence, and judges have broad powers in relation to the presentation of evidence (see also Rule 140) and the discretion and authority to ‘assess freely all evidence submitted’ (Rule 63(2). At the same time, the Court ‘may rule’ on relevance or admissibility of evidence taking into account any prejudice that may arise therefrom, and an exclusionary rule is set out in relation to evidence that is obtained by means of a violation of the Statute or international human rights (see Article 69). Against this background, the judges in this case decided to defer any consideration on admissibility of evidence until deliberating the judgment.

Admit everything upfront

Simply put, this is how the procedure for ‘admission’ of evidence has been applied: parties may submit evidence; each party may raise issues related to the relevance or admissibility of evidence – and, pursuant to Rule 64, they must do so when evidence is submitted to the Chamber. The Chamber, however, can simply refuse to rule on any objections raised by parties, and consider relevance, probative value and potential prejudice “as part of the holistic assessment of all evidence submitted when deciding on the guilt or innocence of the accused” (Judgment, para. 598).

The issue is a very live one, as this approach to evidence is currently being adopted in Ongwen and Gbagbo and Blé Goudé – which is to say, in two of the three ongoing ICC trials: in Gbagbo and Blé Goudé a very closely related matter was litigated for 7 months in an interlocutory appeal – in which however the Appeals Chamber did not address the broader issue.

In brief, in Bemba et al., Babala, Arido and Bemba argued in their appeals that the Chamber’s refusal to rule on admissibility was not only erroneous as a matter of law but also prejudicial in its effect. The specific arguments raised by parties on this matter offered the Appeals Chamber a valuable opportunity to address the compliance of this ‘holistic’ approach to admit evidence with the Court’s legal framework and its human rights obligations. However, the majority (Judge Henderson aside) rejected all complaints on this point; they concluded that the Trial Chamber’s approach does not exceed the discretion enjoyed by trial judges to rule on the relevance or admissibility of any evidence submitted, and did not cause any prejudice to the accused. Such broad discretion, the majority stated, is the product of the “delicate compromise achieved in Rome” between common law and civil law systems in relation to evidence. The majority went as far as stating that considerations of relevance, probative value and potential prejudice “may be made part” [emphasis added] of a Chamber’s assessment of evidence for the determination of the guilt or innocence of the accused, but that a lack of such express considerations in the judgment does not represent a failure of the Chamber to provide “a full and reasoned statement of [its] findings on the evidence and conclusion”, mandated by article 74(5) of the Statute.

In other words, the Chamber can decide whether, when and under what circumstances to rule on admissibility of evidence, and does not need to provide any express explanation of what it considered relevant and probative for its decision.

Splitting the atomistic approach

The Appeal’s Chamber’s endorsement of an ‘admit everything’ approach – lacking the safeguard of screening evidence before its admission – is addressed in no uncertain terms in Judge Henderson’s separate opinion. He provides an unsparing summary of the ‘worn’ misconceptions which are evident in the Appeals Chamber’s understanding of evidence admission and assessment in the common law system. Rather than ‘striking the balance’, Henderson states that the Appeals Chamber ‘effectively undermined the compromise reached by the States Parties between the Common Law and the Romano-Germanic legal traditions’. Without repeating Judge Henderson’s issues with the majority’s reasoning, it suffices to say that the Appeals Chamber’s interpretation of the Court’s procedural design is problematic.

While the judges have broad statutory powers to admit evidence, they are not free from the obligation to consider the admissibility of evidence entirely nor to substantiate their decision in this regard. Judges must still fulfil their ultimate responsibility to ensure that evidence introduced at trial does not prejudice the integrity of the proceedings. In other words, judicial discretion cannot be extended to the point of foregoing any consideration of admissibility until the decision on an accused’s guilt or innocence.

There are also many practical reasons that counter against deferring all considerations regarding admissibility until all the evidence submitted can be considered in a “holistic” manner, at the end of the trial, which go to the heart of fair trial issues.

A groaning bar table

By their nature, international criminal trials tend to be complex and to generate huge volumes of evidence. Therefore, for judges to consider effectively all possible issues in relation to relevance or admissibility as part of a ‘holistic’ assessment of ‘all evidence submitted’ is a highly unrealistic proposition. In large and highly complex criminal cases, to consider all evidence submitted in a case is plainly impossible, even for the most experienced professional judges. Consequently, the amount of evidence that can be used for a decision should be a concern, with the view of establishing the truth of certain facts, and should suggest a more cautious approach to admission of evidence. This is even more true when, as often happens, thousands of pieces of documentary evidence can easily be introduced (dumped?) into the case record through ‘bar table’ motions. To essentially admit everything – which is the practical outcome of the approach described above – means giving up a very valuable tool available to judges to keep the case record focused on the charges, which in turn allows for more efficient management of trial proceedings, and a greater respect for the rights of the accused.

Given the judges’ role in establishing the truth, there is another compelling argument against the indiscriminate admission of evidence: to decline to rule on objections that are raised on evidence, especially when its authenticity is doubtful (as was the case in Gbagbo and Blé Goudé), has the consequence of allowing potentially unreliable evidence to enter the case record. The majority in the Bemba et al. Appeals Chamber judgment insists that this is not problematic, because the ‘holistic’ evaluation of all evidence submitted is carried out by professional judges. This alone, in their view, is sufficient to neutralise the risk that irrelevant and/or prejudicial evidence may affect the integrity of the proceedings.

Without entering into a discussion of the ‘professional judges’ argument, this analysis appears unsatisfactory. First of all, as aptly suggested by Judge Morrison during the appeal hearings held in the Bemba (Main) case last January, if the evidential weight of any given piece of information is zero, and there is another piece of information whose evidential weight is equally regarded as zero, those two pieces of evidence cannot corroborate each other (see here, page 58 and following). Even more worrying, once unreliable evidence finds its way into a trial it will inevitably pollute the case record: it will be intertwined with other evidence; put to witnesses; used by parties to address the Chamber; and so on. In other words, it will be virtually impossible at the end of the trial to discern unreliable from probative evidence. As expressed by Peter Murphy, “rather like cancer cells, pieces of fabricated evidence disguise themselves and gain sustenance by attaching themselves to genuinely probative evidence. Over the course of a trial lasting several months or a year evidential debris has ample opportunity to contaminate genuine and probative evidence in the minds of the judges.”

It is clear, therefore, how the Chambers’ current approach could seriously hinder the truth-seeking process.

Placing the burden on the defence

Arguments in favour of reliability and expeditiousness of ICC proceedings should offer sufficient grounds to favour a more rigorous approach to evidence. However, the negative consequences of the current approach to evidence disclosure and admission are compounded when one considers the serious potential prejudice to the principle of equality of arms and the rights of the accused as a whole.

If parties can freely submit evidence without having to substantiate why, and what they consider certain evidence relevant to, and judges decline to rule on any objections in this regard, the outcome is that defendants are ‘left in the dark’ until the end of the trial as to what evidence the Chamber will eventually admit and take into consideration. This places on the defence the onerous burden of responding to all evidence submitted, regardless of its relevance or probative value, and without a clear understanding of the relation between the evidence and the charges in the Prosecution’s case. The impact of this dynamic on the principle of equality of arms is enormous, especially considering that, at the commencement of a trial, the OTP will have been collecting and analysing evidence for years. Of course, much less time and fewer resources are available to defendants – especially those relying on legal aid to fund their defence. Hence, through current evidential practices, the right to adequate time and facilities to prepare a defence, an essential component of a fair trial, is seriously put into question.

In sum, there are significant disadvantages to the Appeals Chamber’s decision in Bemba et al. related to trial management. Indeed, the Appeals Chamber’s decision’s compliance with the legal framework governing the ICC is doubtful. Concerned observers of the Court can regret a missed opportunity for the Appeals Chamber to enter into an analysis of the Court’s legal texts that is more cautious and respectful of the rights of the accused and the integrity of the proceedings. These are fundamental considerations that should inform the judges’ discretion in conducting the proceedings, and should prevail over formalistic interpretations or considerations of expeditiousness. Future judicial rulings on admissibility of evidence will have to address these serious concerns in a more sensible manner.