The ICC Appeals Chamber’s problematic approach to identifying evidence obtained in violation of human rights

In this third opinion piece examining the ICC’s approach to evidence in the Bemba et al. case (here are the first and second pieces), International Criminal Justice Clinic student Ellen Leishman raises concern regarding the Court’s failure to determine the admissibility of evidence consistently with internationally recognized human rights.

In what appears to be a case of conflicted drafting, Article 69 of the Rome Statute requires the ICC to determine the admissibility of any evidence obtained in violation of internationally recognised human rights (Article 69(7)) but precludes it from ruling on a state’s application of its national law in collecting evidence (Article 69(8)). On the one hand, the drafters were committed to ensure the fairness and the integrity of the proceedings and, on the other, determined that the ICC should not interfere with national authorities’ application of national laws.

As the Bemba et al. case demonstrates, the two rules appear to come into conflict when the ICC is required to consider whether certain evidence was obtained in accordance with national law in order to determine whether there has been a violation of internationally recognised human rights. Although both the Trial Chamber and the Appeals Chamber recognize and seek to address this tension, they do so in a manner that is inconsistent with international human rights law, setting disturbing precedent that threatens the fairness of ICC trials.

In this case of alleged witness tampering, defence teams challenged the admissibility of Western Union records presented by the prosecution as evidence of money transfers to witnesses. They argued that the records were inadmissible pursuant to Article 69(7) because they had been obtained from Western Union in Austria in violation of the right to privacy of several of the defendants and other persons. Under international human rights law, a violation of this right occurs if the interference is ‘arbitrary or unlawful’, which includes the question of whether the interference was authorised under domestic law. Therefore national laws and how they have been applied were directly relevant to the ICC’s determination of whether a violation had taken place.

Acknowledging and seeking to reconcile the tension between Article 69(7) and 69(8), the Trial Chamber logically decided that it would review the application of national law ‘only to the extent necessary to determine whether a violation of the right to privacy occurred under Article 69(7) of the Statute’. However, it went on to state that it would engage with domestic law solely to determine whether “something so manifestly unlawful [emphasis added] occurred that it amounts to a violation of the Statute or internationally recognized human rights” – a test that sits awkwardly with the prohibition of ‘arbitrary or unlawful’ interferences with privacy in international human rights law. Indeed, in applying the test, the Trial Chamber did not fully consider lawfulness as required by international human rights law, limiting its consideration to whether the authorisations ordered by the Austrian Public Prosecutor and approved by an Austrian Judge were “manifestly unlawful so as to void it, and not if the authorisation itself was lawfully provided under Austrian law as such.” It concluded that no violation had occurred.

The Trial Chamber however reconsidered its interlocutory decision following two domestic rulings by the Higher Regional Court of Vienna repealing two decisions by lower courts authorising the Prosecution’s requests for assistance in collecting the Western Union records. It ruled that, in view of the domestic decisions, “the internationally recognized right to privacy has been violated”. Nevertheless, having established a violation, it applied the admissibility tests in Article 69(7) concluding that the admission of the records ‘would not be antithetical to and would not seriously damage the integrity of the proceedings’. The Chamber therefore admitted and relied on the Western Union records in its Judgment ‘primarily to corroborate other evidence concerning payments’.

The defendants appealed this part of Trial Chamber’s Judgment.

In its Judgment of 8 March 2018, the Appeals Chamber upheld the admissibility of the Western Union records but with very different reasoning. It found that Article 69(8) establishes an “unequivocal bar” to the ICC “reviewing the application of national law”. Therefore, the Trial Chamber had erred both in assessing “whether there had been violations (whether “manifest” or otherwise) of Austrian law in the collection of the Western Union Records” and in relying on the two decisions of the Austrian courts to conclude that violations of internationally recognised human rights had occurred.

The Appeals Chamber appeared to concede that Article 69(8) does not per se preclude the Court from taking into account uncontested determinations of compliance or non-compliance with national law as a “factual matter” in determining admissibility. However, it is far from clear what this means, let alone how uncontested determinations of compliance could be established or how such factual matters would be applied in determining whether violations of internationally recognized human rights have been committed. The Chamber was adamant that any such consideration of compliance with national law must not include any adjudication of national law by the ICC.

In reaching a determination that the right to privacy had not been violated in this case and that the Western Union records were therefore admissible, the Appeals Chamber avoided the question of whether they were obtained in accordance with Austrian law. It appeared to conclude that, where a state responds to a request for cooperation to collect evidence, it should be presumed that it has been carried out “in accordance with national law and pursuant to the relevant domestic procedures of the concerned state”. Such wishful thinking is seriously problematic, especially considering the deference with which states are likely to treat ICC cooperation requests.

Instead the Appeals Chamber primarily considered the proportionality of the interference – taking into account ‘the nature of the information concerned weighed against the pursued investigative need warranting such access’. However, where the Court has not determined whether the interference was lawful, including that it complied with the principle of legality, this proportionality test is incapable of effectively determining whether an interference with the right to privacy was ‘arbitrary or unlawful.’ While it is legitimate for the ICC to make an independent determination of whether human rights violations have been committed for the purposes of determining admissibility, its decisions on the admissibility of evidence must be fully in line with international human rights law.

Of equal concern, the Appeals Chamber went beyond the plain reading of Article 69(8) to preclude the Court from ruling on the application of national law not only in relation to ‘evidence collected by the state’ but also evidence collected directly by the Office of the Prosecutor. As a result, it did not consider allegations that the prosecution had violated the right to privacy by initially accessing records via a private contact at the Western Union offices without the involvement of the Austrian authorities. This interpretation is criticised strongly by Judge Henderson in his separate opinion asking:

“who is supposed to make sure that human rights standards are upheld in situations where the Prosecution operates independently or national authorities are either unavailable or cannot be relied upon to genuinely safeguard the relevant human rights? If my colleagues’ hands-off approach were followed, there would effectively be no meaningful judicial oversight over how the Prosecution collects evidence in such situations.”

The Appeals Chamber’s interpretation of Article 69(8) undermines not only the accountability of the Office of the Prosecutor but also the ability of the defence to challenge the admissibility of evidence obtained in violation of internationally recognised human rights. If the Court refuses to apply international human rights law to determine whether certain human rights have been violated, then the defence is hamstrung in challenging admissibility pursuant to Article 69(7). The very integrity of the ICC’s proceedings and its decisions can be called into question.

Indeed, if the same approach is applied in future cases, the ICC may fail to identify let alone properly determine the admissibility of evidence obtained by means of other alleged human rights violations – including unlawful search and seizure, arbitrary and unlawful arrest and arbitrary deprivations of the right to life.

The Appeals Chamber’s approach is all the more disappointing because it does not consider the rule in Article 21(3) that the ICC must interpret and apply the law consistent with internationally recognised human rights. Applying this provision, the Appeals Chamber could have convincingly resolved any perceived conflict by reading an exception into Article 69(8) when the arbitrariness or unlawfulness of the collection of evidence (whether with the cooperation of a State or by the Office of the Prosecutor directly) is at issue in determining whether a violation of internationally protected human rights has occurred and whether this affects the admissibility of the evidence.

The ICC has consistently rejected the suggestion that it is a ‘human rights court’ (interestingly, it is not alone in doing so). This is true to the extent that it was not created to oversee states’ compliance with human rights treaties. However, the Court has a statutory mandate to ensure fair trials and implement the rights of the accused, victims and witnesses. The Court must prioritise these obligations over shielding states and the Office of the Prosecutor from human rights accountability.