Time to Clarify ICC Rules on Admission of Evidence
In this third opinion piece on the Bemba Appeals Judgment, Amnesty’s International Justice Team considers the majority’s criticisms of the Trial Chamber’s admission and adjudication of evidence. It considers measures that the ICC should take to clarify that ICC Rules require Chambers to determine the admissibility of all evidence promptly and transparently during the trial.
A few months ago, we posted an opinion piece expressing concern regarding the emerging practices of ICC trial chambers deferring any consideration on admission of evidence until deliberating the judgment and failing to provide clear explanations of which evidence is eventually admitted and relied upon in reaching a final decision on guilt or innocence. Having outlined the many negative effects of this approach (on the efficiency of proceedings, the truth-seeking function of the judges and the defendants’ right to adequately prepare their defence), we expressed disappointment for the endorsement by the Appeals Chamber in its March Judgment in the Bemba et al. case and the hope that a more thorough and transparent approach to evidence would prevail in future practice. Significantly, three months later, three out of five Appeals Chamber judges in their Judgment in the main Bemba case delivered a sharp rebuke to similar practices. This opinion piece considers ways forward for the ICC to resolve these vital procedural issues.
Ensuring a full and reasoned statement of the Trial Chamber’s findings on evidence and conclusions
The Appeals Chamber’s majority Judgment in the main Bemba case, on 8th June, addressed only a limited number of legal issues, which did not include the Trial Chamber’s approach to admission of evidence per se. However, the majority did engage with what they saw as the lack of a “full and reasoned statement… on evidence and conclusions” (as required by Article 74(5)) in reaching some findings of errors in the trial judgment. Judges Van den Wyngaert and Morrison emphasised in their separate opinion that they had a major concern “about the opacity of the Conviction Decision in terms of outlining the evidentiary basis for many of the findings” and highlighted what they considered “obvious evidentiary problems.” In contrast, Judges Monageng and Hofmański in their dissenting opinion reiterated the conclusion of the Bemba et al. Appeal Judgment that a trial chamber is not under an obligation to refer to “every item of evidence relevant to a particular factual finding, provided that it indicates with sufficient clarity the basis for its decision”. They generally emphasised that the Appeals Chamber should have shown more deference to the Trial Chamber’s findings.
In line with our previous post, we agree with the majority on the need for trial chambers to provide full and clear reasons for its findings. In addition to our previous concerns, we are particularly persuaded by Judge Eboe-Osuji argument that:
a regime of appellate review which appears to place upon an appellant the burden of demonstrating materiality of the errors on the part of the Trial Chamber very critically puts in issue the need for an appellant to see with clarity whether or not, and to what extent, the Trial Chamber had relied upon contested evidence submitted at trial.
In our view, non-transparent practices of adjudicating evidence will inevitably undermine the ability of the accused to conduct an effective defence and make it very difficult to evaluate a trial chamber’s findings effectively on appeal. It can only be hoped that following this decision other trial chambers will carefully consider the content of their judgments and err on the side of caution in explaining their analysis of the evidence in support of their findings.
The ‘vexed question’ of whether trial chambers have to rule on the admission of every item of evidence submitted during the trial
In their separate opinions, the judges in the majority voiced specific concern that many of their evidentiary concerns in this case originate from the Trial Chamber’s failure to rule on admissibility of evidence during the trial. In relation to this case, Judges Van den Wyngaert and Morrison reject the approach in a 2011 interlocutory appeal ruling in the Bemba case that the Trial Chambers had the option to postpone rulings on admissibility until the deliberation phase. They further reject the approach of the Bemba et al. Appeals Judgment, which in opinion “went significantly further by holding, by majority, that Trial Chambers do not have to make individual admissibility rulings at all”. Instead they argue:
Not only is it necessary to rule on the admissibility of all evidence submitted by the parties, the Trial Chamber must also apply the admissibility criteria of article 69 (4) of the Statute sufficiently rigorously to avoid crowding the case record with evidence of inferior quality.
In support of this position, Judge Eboe-Osuji makes some compelling arguments, drawing from and building upon those raised by Judge Henderson in dissenting opinions in other cases. He convincingly argues that although Rule 64 does not expressly require a trial chamber to rule on the admissibility of evidence during trial:
There is no question (…) that in expressly requiring parties to register their objections at the point of submission of evidence, rule 64 does—as a matter of necessary implication—require trial judges to play their own incidental part, by ruling upon the evidential concerns raised by the parties.
In line with his argument above on the potential impact of lack of transparency relating to evidence on the accused’s ability to appeal a trial judgment, Judge Eboe-Osuji is particularly sympathetic to the appellant’s argument that, as a result of the Trial Chamber’s failure to rule on the admissibility of evidence, he could not discern what evidence was used to convict him and why – a general concern that we had also highlighted in our previous opinion piece.
He further reflects on “the danger of miscarriage of justice” related to the “overly convenient trend in the jurisprudence of the Appeals Chamber” to accept what he calls the “global evidential presumption” (i.e. the presumption that “the Trial Chamber evaluated all the evidence before it … as long as there is no indication that [it] completely disregarded any particular piece of evidence”.) We find this argument particularly compelling. As we previously noted, to consider all evidence submitted in a case is plainly impossible, even for the most experienced judges. In other words, this “presumption” is antithetical to a meaningful review of relevant and probative evidence. This is yet another cogent reason to move away from this approach.
According to Judge Eboe-Osuji a failure to make evidentiary rulings may result in unfairness of proceedings that could constitute a basis for the reversal of the decision on appeal, per article 83(2). We believe this consideration aptly highlights one of the essential functions of appellate review: to redress unfairness occurring in the course of a specific trial of an individual accused – not in the abstract. This, in turn, also offers an additional reminder – if it is needed – that interlocutory appeals can play an important role in fostering fairness and efficiency of the proceedings. There is little point in speculating about how this trial could have gone differently had the Bemba defence been allowed to raise other issues with the Appeals Chamber during trial – in addition to the one ‘resolved’ with the 2011 ruling cited above. Nevertheless, it is clear that interlocutory appeals have the potential to remedy serious issues arising during the trial and thus materially advance the proceedings – this should not be understated.
In our view it is encouraging to read such convincing and compelling arguments against a practice that is clearly disadvantageous to the fairness and efficiency of the proceedings and their truth-seeking function. However, we were disappointed that in an apparent attempt to reconcile their position with the Bemba et al. Appeals Judgment, Judges Van den Wyngaert and Morrison suggested that such an approach to evidence “may have been unproblematic in the context of a case relating to offences against the administration of justice”, but “it is not appropriate in cases relating to article 5 of the Statute”. In our view, denying the defence the opportunity to effectively challenge the admissibility of evidence has no place in any criminal trial, regardless of the charges.
Given the differences of approaches by the Appeals Chamber relating to evidence, it is concerning that the Court’s approach to evidence remains unresolved. Indeed, prior to the Appeals Judgment in June, the Trial Chamber in Gbagbo and Blé Goudé recognized as “submitted” by the Prosecution a final bulk of 1,000 items of evidence shortly before the closing of its case without ruling on admissibility. This prompted Judge Henderson to once again dissent calling the decision an “extravagant failure on the Chamber’s part to make any meaningful decision, (…) lacking both efficiency and fairness”.
The need for clarity on admission of evidence
As we suggested in the previous post, it is not too late for the Court to “get it right” – ensuring that the admissibility of all evidence is determined during the trial. Such legal certainty is urgently required to ensure the fairness and effectiveness of current and future ICC cases. In this light, we would strongly encourage judges to prioritize efforts to reach common ground on this issue and reflect best practice in an updated Chambers’ Practice Manual (as long as this can be done without creating inconsistencies with the RPEs as they currently stand). This, we submit, would not amount to any exercise of a legislative function by the judges, as the “solution” is already contained in the legal texts.
But, in the event that a shared interpretation cannot be achieved, concerned judges should consider proposing an amendment to the Rules to clarify the matter. For example, Rule 64 could be amended to explicitly state that a Chamber shall enter a ruling on admissibility when a motion is raised by any party, so as to remove any margin of doubt. That is not to suggest that the legal framework is flawed – as explained above, our reading of Rule 64 is that a trial chamber must rule on the admissibility of every item of evidence, otherwise the Rule doesn’t make sense. But in the extreme situation where the ICC judiciary cannot agree on the implementation of such a vital aspect of judicial procedure, clarification through an amendment to the rules may be necessary to achieve legal certainty, consistency and fairness.
It is worth mentioning in this regard that any discussion in relation to possible amendments should involve an adequate representation of defence interests – which, looking at the current composition of the Court’s Advisory Committee on Legal Texts, is not guaranteed.
These recent developments constitute yet more proof that, despite celebrating the 20th anniversary of the Rome Statute this year, the ICC is still in search of answers on a number of important issues. The case law that the ICC is building now will be crucial in shaping its future course. Inevitably, the newly-composed chambers will have to take a stand on many unresolved questions in the Court’s practice. Whichever route is eventually chosen, some proactivity on this matter is surely called for. As supporters of a fair and efficient ICC, we hope that “the tide is turning” on the issue of admission of evidence.