Introduction

Evidence may be described “as a tool for the reconstruction of disputed past events in the context of judicial trials”. The term admissibility is “distinctly Anglo-American in origin, and has a technical significance not applicable to the broad rules of international procedure”. Of course, admissibility may have different meanings in different criminal justice systems. Whereas in common law systems the respective scope of potential understandings is much broader, including issues of relevance and the probative value of the information, in civil law inadmissibility would normally be related with improperly obtained evidence. When in a common law criminal trial a judge is to filter the available information that may be offered to a jury, by deciding on its admissibility, the counterpart role of a professional judge in civil law systems is to try the facts. This is yet just one reflection of indeed the different roles assigned for judges, prosecutors, and even defendants in accusatorial and inquisitorial systems.

The present analysis attempts at examining the respective developments concerning the admissibility of evidence in international criminal justice. Unsurprisingly, the combination of the two distinct procedural systems, and the underlying differences in terms of approaching evidence is worth analyzing, especially against the background of the relevant practice by the international criminal judiciary. It is to address international criminality with a complexity not comparable to ordinary crimes. Hence, in any respect the scale of offences to be prosecuted, as well as the quantity of potential evidentiary sources, affect the operation of proceedings, thus making them incomparable to any domestic criminal proceedings. For that reason our analysis starts with looking at the normative frameworks and their application by International Military Tribunals, the ad hoc Tribunals established by the Security Council, namely the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and finally by the permanent International Criminal Court (ICC). Subsequently, the troubling combination of adversarial and inquisitorial elements is assessed against the background of proceedings before them. Yet, any reliable examination would be incomplete without then paying attention to the general approach to evidence by international courts, also those of a non-criminal character. It may be claimed that only after taking all those considerations into account, an accurate picture on the admissibility of evidence before international criminal courts and tribunals may be provided.

1. International Military Tribunals

The roots of modern international criminal justice date back to the establishment of the International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE) in the aftermath of the Second World War. The apparently greatest difficulty in establishing the operational framework consisted in how to reconcile two very different systems of procedure. The statutes of the International Military Tribunals referred only cursorily to evidentiary issues. Article 19 of the IMT Charter provided that: “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to be of probative value”. Article 13(a) of the IMTFE Charter was framed in a similar manner, with an additional sentence on admissibility of “all purported admissions or statements of the accused”. With regard to the proceedings before the latter Tribunal, in his dissenting opinion, Justice Pal levelled severe criticism in the following words: “In prescribing the rules of evidence for this trial the Charter practically discarded all the procedural rules devised by the various national systems of law, based on litigious experience and tradition, to guard a tribunal against erroneous persuasion, and thus left us, in the matter of proof, to guide ourselves independently of any artificial rules of procedure”. There were no specific provisions in the IMT and IMTFE Charters on the exclusion of illegally obtained or improperly obtained evidence.

With regard to International Military Tribunals, it may be therefore questioned whether the malleability of the evidentiary rules provided a potential for abuse, because of their flexibility expanding beyond the bounds of fairness. Some learned commentators, however opined that the relaxation of the rules of evidence did not lead to “any unsatisfactory consequences” and “no question [could] ever be raised concerning the fairness of the rules of evidence and procedure administered by the Nuremberg Tribunal”. Be that as it may, for many years the practice of the International Military Tribunals had been the only available reference point in international criminal justice, before the Security Council established the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

2. The ad hoc international criminal tribunals

Also, the ad hoc international criminal tribunals adopted lenient and flexible admissibility rules on evidence. The Statutes of the ICTY and ICTR conferred on the judges the adoption of “rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters”. The judge-made Rules provided for admission by the Trial Chambers of “any relevant evidence which it deems to have probative value”. At a later stage, however, the chamber could exclude such evidence. The adopted rules of evidence were considered ‘unique’ by being “not simply a hybrid of the civil and common law systems” and replicating neither system.

In the first annual report of the ICTY, submitted by the President of the Tribunal, Antonio Cassese noted that “[b]ased on the limited precedent of the Nürnberg and Tokyo trials, the statute of the Tribunal has adopted a largely adversarial approach to its procedures, rather than the inquisitorial system prevailing in continental Europe and elsewhere”. Such an observation was followed by a notice that “there are […] important deviations from some adversarial systems”, mentioning among them the lack of any technical rules for the admissibility of evidence and that the Tribunal may order the production of additional or new evidence proprio motu. It could be observed that the Tribunal’s jurisprudence reflected fully such a statement so that evidence was treated “much more in accordance with the civil law tradition of free proof” despite “paying lip service to the adversarial nature of the Tribunal’s proceedings”.

In the process of establishing the procedural rules for the ICTY, given the limitations arising from the conflict and the conditions in the former Yugoslavia, in particular the restricted possibilities of gaining access to documentary evidence in the process of an ongoing armed conflict, it was submitted that “the International Tribunal could not be too strict about the criteria for the admissibility of evidence”. Accordingly, “it was considered that the inclusion of technical rules would only encumber the judicial process”. For that reason, the Tribunals’ chambers had a broad discretion to decide on the admissibility, relevance, and probative value of evidence. The respective sparseness in formulating of the rules on evidence is deliberate. Rather than it being accidental, the rules are drafted and applied to ensure maximum flexibility for chambers in their efforts to run fair and expeditious trials.

Over time the practice of the ad hoc tribunals moved in the direction of a more active judicial role, despite the textual starting-point being very close to the adversarial model. It was due to the fact that the quite frequent changes were adopted by the judges.

The Appeals Chamber in Aleksovski stated that: “The purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal”. It is quite telling in that respect to refer to the early decision by the ICTY rejecting the motion by the Defence to exclude, to rule on the admission of (hearsay) evidence without actually hearing its content and explained that “This procedure, while possibly appropriate if trials before the International Tribunal were conducted before a jury, is not warranted for the trials are conducted by Judges who are able, by virtue of their training and experience, to hear the evidence in the context in which it was obtained and accord it appropriate weight. Thereafter, they may make a determination as to the relevance and the probative value of the evidence”.

The role of reliability in the admissibility decision may be considered controversial. Indeed, the hitherto jurisprudence (of the ICTY and the ICTR) offered incoherent visions as to the reliability of a piece of evidence being either relevant to its admissibility or as a matter to be considered when determining its weight. It is worth stressing that the ICTR did not adopt Rule 89(D) permitting its Trial Chamber to “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”. However, for both ad hoc Tribunals their RPEs offered also mandatory exclusion of evidence if “its admission was antithetical to, and would seriously damage, the integrity of the proceedings” or if it had been obtained by methods which cast substantial doubt on the reliability of the evidence.

3. The International Criminal Court

A compromise between the common and civil law tradition needed to be also reached in negotiating the Statute of the permanent International Criminal Court resulting in “a delicate combination of civil and common-law concepts of fair trial and due process”. Yet, “the compromise in the Rome Statute was to eschew generally the technical formalities of the common law system of admissibility of evidence in favour of the flexibility of the civil law system, provided that the Court has discretion to ‘rule on the relevance or admissibility of any evidence”.

When the International Law Commission discussed the establishment of the international criminal court, it was clear to that the rules of evidence were too complex to be dealt with in the Statute itself, and should therefore be left to be defined in a separate document. During subsequent works a decision was taken that the Statute should only contain the fundamental principles governing evidence, and that the details, secondary and subsidiary rules should be further elaborated in the Rules, more easily amended than the Statute and allowing the Court to flexibly adopt rules according to its practice and requirements. Unsurprisingly, the eventual Rome Statute is not replete with rules of evidence which have been dealt with in full detail in RPE adopted, however, by the Assembly of State Parties.

Yet, Article 69 lays down some general principles serving, in the opinion of some authors, the traditional common-law function of the law of evidence. Again, the provision contains references to different legal traditions and also that of continental law. Under Article 69(3), it is for the parties to submit evidence relevant to the case. However, “[t]he Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth”. The language of the quoted provision might seem to at least partially relate to the inquisitorial model, but not in its most rigid form, since the judges are neither under a strict duty to determine the truth, nor remain passive arbiters to reflect the pure adversarial model.

The most straightforward provision referring to admissibility is Article 69(4): “The Court may rule on the relevance or admissibility of any evidence, taking into account,inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness”. Article 69 belongs to Part 6 concerning the trial proceedings but under Rule 63(1) of the RPE, the rules of evidence, together with Article 69, shall apply in proceedings before all Chambers, thus clarifying the respective ambiguity.

A standard to exclude evidence has been included in Article 69(7) of the Rome Statute. Accordingly, “Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings”.

It might be rightly questioned whether the above formulation does not ‘make a mockery of human rights law as an indivisible set of minimum legal standards.’ Without doubt Article 69(7) provides for a model of non-automatic inadmissibility of illegally obtained evidence. The fairness test would be the ultimate step to finally admit otherwise admissible evidence. The quoted provision focuses on the impact of the violation on the reliability of the evidence and the general integrity of the proceedings.

Finally, the ICC, like its predecessors, is not bound by national rules of evidence. Against this background it may be useful to refer to Prosecutor v. Lubanga, where the Trial Chamber I concluded that “evidence obtained in breach of national procedural laws, even though those rules may implement national standards protecting human rights, does not automatically trigger the application of Article 69(7) of the Statute. The mentioned provision may be considered “lex specialis, when compared with the general admissibility provisions set out elsewhere in the Statute and represents a clear exception to the general approach”.

The Statute’s approach vis-à-vis the admission of evidence is to eschew most of the technical rules on admissibility in favour of a system of utmost flexibility. For some, however, the ICC legal framework does not constitute an improvement, since its law of evidence is “possibly even more obscure than that of the ad hoc tribunals” and contains some utterly contradictory elements. All in all, the general admissibility standard of evidence is defined by three cardinal criteria. Accordingly, relevance, probative value, and prejudice (probative value as weighed against any prejudicial effect on trial fairness) constitute a three-step approach to determine the admissibility of evidence other than oral evidence. First, “the Chamber must ensure that the evidence is prima facie relevant to the trial, in that it relates to the matters that are properly to be considered by the Chamber in its investigation of the charges against the accused and its consideration of the views and concerns of participating victims”. Subsequently, the Chamber must assess whether the evidence has, on a prima facie basis, probative value. Finally, where relevant, the probative value of the evidence must be weighed against its prejudicial effect. Such a three-stage approach may often appear as being very artificial and unnecessarily cumbersome since it would impose indeed lengthy decisions on admissibility of evidence and as such those would not be indispensable according to the Statute or the Rules.

For the sake of clarity, it may be requested that questions of illegally obtained evidence should be reviewed at the stage of the admission of evidence and not during its assessment. However, the Trial Chamber III decided in Prosecutor v. Bemba to admit prima facie before the start of the presentation of evidence, all statements of witnesses to be called to give evidence at trial and all the documents submitted by the prosecution in its list of evidence. According to the Majority of the Judges “a ruling on admissibility is not a pre-condition for the admission of any evidence, as it only implies a prima facie assessment of the relevance of any material, on the basis that it appears to be a priori relevant to the case”.

The above admission into evidence of all items mentioned on the Revised List of Evidence was based on a “prima facie finding of admissibility”, without an item-by-item evaluation or giving reasons was subsequently reversed by the Appeals Chamber. According to the latter, the Trial Chamber has a choice between ruling on the relevance and/or admissibility of each item of evidence when it is submitted or deferring its consideration until the end of the proceedings, thus making it part of its assessment of the evidence when it is evaluating the guilt or innocence of the accused person. The Appeals Chamber underlined that according to the last sentence of Article 74(2) of the Rome Statute a Trial Chamber may base its decision at the end of the trial only on evidence that was “submitted and discussed before it at the trial”. In addition, according to the Appeals Chamber, the Trial Chamber “failed to effectively evaluate any potential prejudice that such evidence may cause to a fair trial, in particular Mr. Bemba’s right to a trial without undue delay”. It has been also suggested in the doctrine that instead of undertaking an admissibility test at all cost at the moment of submitting pieces of evidence, it may be advisable to defer the Chamber’s assessment of the admissibility of evidence until deliberating its judgment pursuant to Article 74(2) of the Statute. Accordingly, the preliminary admissibility exam would be limited to relevance. Yet, the concept of relevance contains an implicit requirement of probative value. But when compared to the mechanisms available to the ad hoc international criminal tribunals, the respective solution included in the Rome Statute seems too moderate.

One important aspect of the ICC procedure, and also on evidentiary aspects thereof, is that under Rome Statute the Rules of Procedure and Evidence are to be adopted by the Assembly of State Parties and not by judges themselves. Such a mistrust in judges may also have more serious and definitely negative consequences, including the significant preclusion of the necessary judicial development, while restricting the judges substantially to a mechanical function, which in turn may affect the ability of the International Criminal Court to function efficiently as a court of law and the ability of its judges to fulfil their mandate. Not only against the background of the ICC’s predecessors, such a deprivation cannot be considered a welcome development.

4. Squaring Inquisitorial Law of Evidence in a Predominantly Adversarial System?

Without doubt, rules of evidence, when applied consistently, are an essential component of fairness and good trial management. The law and the respective practice of the judicial bodies analysed above offer numerous occasions to draw firm similarities, notwithstanding the differences between the International Military Tribunals, International Criminal Tribunals, and the permanent ICC. Comparing the experiences of those judicial institutions demonstrated various commonalities. Generally speaking, all of the surveyed international judicial bodies have had a flexible and liberal approach to the admission of evidence.

Yet, the “free proof” may be “a euphemism for a systemic failure of judicial discrimination in admitting evidence without inquiring into its apparent provenance or reliability” and “the price of this failure is evidential contamination”.

It goes without saying that international criminal procedure may be portrayed as a competition of or a contest between two conflicting traditions of criminal procedure. In general, it may be concluded that the international criminal procedure is dominated by the common-law adversarial model but the international criminal courts and tribunals have been relying on essentially civil-law mechanisms for tendering and admitting evidence. Thus, international criminal evidence rules constitute a unique amalgam. The trial proceedings are primarily common law in character but basic approach to evidence derives from civil law systems, which when blended together provide for inevitable tensions .

When assessing the international intersection of traditions, it is rightly feared that “the mishmash of the two system has abandoned some distinctive checks on which each system depends”. In even stronger words it may be observed in a broader context that “the present system of ‘free proof’ in the context of international criminal law represents a judicial failure to exercise due discretion by indiscriminately admitting any material claimed by the parties to be ‘evidence’, regardless of its provenance or apparent reliability and even without inquiry as to possible perjury or fabrication”.

Against this particular background it may seem natural to advocate for fully choosing either system, for the selected law of evidence “can only function properly in their respective ‘natural habitats’, which is either the civil-law objective truth-finding contest or the common-law subjective truth finding contest”.

It is thus logical that the representatives of the common law system level criticism against the missing elements. The “deviations” from the adversarial system are considered to frustrate its objective “by making trials longer, more complex, and less efficient, and by tending to bury the truly important evidence in the midst of an enormous accumulation of evidential debris.”. Such “evidential debris” may be said to poison the record and ultimately make it more difficult for judges to assess the weight of the evidence and arrive at the truth. In the alternative, it is also possible to argue against any repetition of the reliability assessment, when determining admissibility, and later at the final deliberations. Thus, procedural economy may as well be invoked as an argument in favour of flexible admission of evidence. The latter suggestion may well fit into the international character of the judicial proceedings.

Some reaction to the referred objections is offered in the Separate and Dissenting Opinion of Judge Cassese in Erdemović, which deserves to be quoted at length: “International criminal procedure results from the gradual decanting of national criminal concepts and rules into the international receptacle. […] It is therefore only natural that international criminal proceedings do not uphold the philosophy behind one of the two national criminal systems to the exclusion of the other; nor do they result from the juxtaposition of elements of the two systems. Rather, they combine and fuse, in a fairly felicitous manner, the adversarial or accusatorial system […] with a number of significant features of the inquisitorial approach […]. This combination or amalgamation is unique and begets a legal logic that is qualitatively different from that of each of the two national criminal systems: the philosophy behind international trials is markedly at variance with that underpinning each of those national systems. Also the Statute and Rules of the International Tribunal, in outlining the criminal proceedings before the Trial and Appeals Chambers, do not refer to a specific national criminal approach, but originally take up the accusatorial (or adversarial) system and adapt it to international proceedings, while at the same time upholding some elements of the inquisitorial system”. In a similar vein, another ICTY President, Gabrielle Kirk MacDonald advocated for the flexibility of procedural and evidentiary rules (“a framework, not a straitjacket”) to allow the exercise of judicial discretion where necessary.

Another perspective on the hybridization of the procedure, and the admissibility of evidence in particular, would be the perspective of the fair trial ideal. One might be reminded of the famous reference to the “poisoned chalice” at Nuremberg that brilliantly covers the delicate interplay between being either too inclined pro-conviction or in the alternative, instead of overlooking rights of the accused to lurch in the opposite direction, with an eagerness to demonstrate unparalleled care for the accused, i.e. being inclined to acquittal at any cost.

In a more modern fashion, one might be tempted to rely once again on a learned expert of international (criminal) law. According to Cassese (acting then as dissenting Judge in his capacity as the ICTY President in another case), “notions, legal constructs and terms of art upheld in national law should not be automatically applied at the international level. They cannot be mechanically imported into international criminal proceedings. The International Tribunal, being an international body based on the law of nations, must first of all look to the object and purpose of the relevant provisions of its Statute and Rules”.

This brings to light another element, which relies on the international nature of the judicial bodies admitting or not the information as evidence. Whereas the analysis above concentrated on procedural requirements referring to domestic experience, there might indeed be different combinations or hybrids between the adversarial and inquisitorial systems. Indeed, no single national system could offer a sufficient solution. What becomes crucial at this point of our analysis is to now pay due attention to the international character of the proceedings before a judicial body operating outside the purely domestic context.

A seminal study on evidence in international proceedings concluded that “international tribunals would be seldom troubled with questions of reception or exclusion, based upon the intrinsic character of the evidence itself”. According to M.O. Hudson, “No general rules have been developed to constitute an international law of evidence, and international tribunals are usually free from limitations of national tribunals in this regard”. Apart from special provisions, international tribunals claim, and indeed exercise, complete freedom in the admission and evaluation of evidence in order to arrive at the moral conviction of truth of the whole case. A tendency in the practice of international tribunals is “to accept all possible means by which the disputed facts could be proved”. Of course, one may be tempted to offer special treatment to newer international tribunals of a criminal character, to be distinguished from the traditional inter-state litigation. In contrast to other international bodies, evidence plays a very prominent role in the decision-making by international criminal courts, as the latter are entrusted with determining the individual’s criminal responsibility and not the liability of States. But also, international criminal tribunals suffer from difficulties in securing state cooperation and access to evidence.

Therefore, despite the apparent differences, a general conclusion may be drawn that international tribunals, including criminal courts and tribunals, have generally had the power to decide for themselves what is admissible as evidence and have indeed taken a liberal approach to the matter. It may be even claimed that free evaluation of evidence should be considered a general principle of international law.

5. Concluding remarks

The foregoing study has alluded to the importance of admissibility of evidence in the context of international criminal proceedings. Despite some problems presented above, the judicial practice has generally struck the necessary balance between ensuring the fair trial requirements and managing the judicial proceedings in a sometime stormy navigation between the inquisitorial and adversarial elements, while maintaining the character of an international judicial body.

The attention paid to admissibility of evidence distinguishes international criminal justice from traditional international courts and tribunals with their natural inclination to flexible procedural and evidentiary frameworks.

All in all, the general position of international criminal justice towards admissibility of evidence proves similar to the general flexibility of the proceedings and struggle to establish truth by the majority of (if not all) international courts and tribunals. The attempt to “install a flexible law of the evidence in a predominantly adversarial trial under the current demands of international criminal justice” may be considered “at the very least a highly dubious undertaking” but it should be borne in mind that any such hybridization of the procedure has been possible and effective. It has indeed been successfully taking place for decades now, due to the utmost care exercised by judges, even if their direct influence on procedural law, and evidentiary issues in particular, has been considerably diminished by the Rome Statute.

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Notes

Author notes

Corresponding author: Bartłomiej Krzan, University of Wrocław, Poland. Email: bartlomiej.krzan@uwr.edu.pl.