{"id":17941,"date":"2022-07-14T08:00:28","date_gmt":"2022-07-14T06:00:28","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/de\/?p=17941"},"modified":"2022-10-10T10:13:29","modified_gmt":"2022-10-10T08:13:29","slug":"towards-an-international-criminal-evidence","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/towards-an-international-criminal-evidence\/","title":{"rendered":"Towards an \u2018International Criminal Evidence\u2019?"},"content":{"rendered":"

Does the International Criminal Court (ICC) have an \u2018evidence problem<\/a>\u2019? Recent practice would seem to suggest so. Numerous cases<\/a> have been dismissed at the confirmation of charges stage, with the Pre-Trial Chamber determining that the \u2018substantial grounds to believe\u2019 standard of proof had not been met. Last year, the Al Hassan<\/em> Trial Chamber disappointingly<\/a> admitted<\/a> alleged \u2018torture-tainted\u2019 evidence, limiting its analysis to whether the statements were obtained through ill-treatment, and not the broader system of detention in which the accused was held at the time he gave those statements. High-profile acquittals such as those of Laurent Gbagbo and Charles Bl\u00e9 Goud\u00e9<\/a> at the no case to answer stage of proceedings, and that of Jean-Pierre Bemba Gombo<\/a> on appeal, included sharp criticisms of the Office of the Prosecutor (OTP) for failing to bring sufficient evidence to support its case.<\/p>\n

The Bemba <\/em>Appeal Judgment, its accompanying dissenting and separate opinions, and the paroxysm<\/a> of<\/a> commentary<\/a> that surrounded it, provided a fascinating insight into some of the key tensions, disputes and uncertainties that have plagued the ICC since its inception. It showed that fundamental questions, such as the extent to which Trial Chambers should underscore which evidence supports a factual finding and how that evidence led the Chamber to its conclusions, are answered differently by different judges. It also demonstrated a sharp dispute in interpretation on the standard of appeal for findings of fact, and the role of the confirmation of the charges stage of proceedings in shaping the later trial. The Bemba <\/em>Appeal Judgment highlighted that some of the cracks that had begun to show in earlier ICC case law had now become a gaping chasm.<\/p>\n

Judgments must tell a story that is accountable to the evidence. But fact-finding has traditionally been perceived as the poorer sibling to the analysis of legal principles. This dichotomy between facts and law is a false one, to the extent that each legal rule is, in the words of Jerome Frank<\/a>, a \u2018conditional statement referring to facts\u2019. That is to say, the consequences of a legal rule (in the case of international criminal law, the consequence of punishment) can only follow where a particular set of facts has been proven. And substantive law develops<\/a> through a dialogue with the particular factual features of each case.<\/p>\n

At the conference<\/a> to mark the ICC\u2019s 20th anniversary held on 1 July this year, several commentators remarked that the Court is now leaving its difficult adolescent years and entering full maturity, but many questions remain unanswered. Now is the time to reflect upon and consider the best epistemic conditions for international criminal fact-finding. In my forthcoming book, \u2018Proving International Crimes\u2019<\/em>, I argue that, because of the flexibility built in to the legal and procedural frameworks of international criminal courts and tribunals, practice on many key issues of proof is still evolving, and as such is unpredictable and uncertain. At the same time, investigators, lawyers, scholars, human rights advocates and other fact-finders look at the law and practice of the ICC to establish what standards need to be met in the rigorous collection, preservation, presentation, and analysis of certain types of evidence, only to find the Court\u2019s jurisprudence gazing blankly back at them.<\/p>\n

To develop international criminal evidence as a coherent body of law, ICC judges need to do three key things:<\/p>\n

    \n
  1. Abandon the <\/em><\/strong>\u2018submission\u2019 model<\/em><\/strong><\/a> for evidence<\/em><\/strong>, whereby decisions on the admissibility and relevance of the majority of tendered evidence are deferred until the end of trial. This relatively new practice, now very popular amongst Trial Chambers, gives little guidance to either the parties or the wider public as to what evidence was deemed reliable and why, unless it is explicitly discussed in the final judgment. For example, in Bemba et al.<\/em>, the parties provided competing arguments as to whether material found from an individual\u2019s Facebook account was necessarily reliable and attributable to that person, given that anyone could, in principle, set up an account under someone else\u2019s name. The Chamber did not explicitly address the admissibility of these photographs found on Facebook in its judgment, which means that parties in future cases seeking to admit such evidence have no guidance as to what is needed to show authenticity and reliability. More broadly, as Freeman and Vazquez Llorente have argued<\/a>, the submission model appears incompatible with the huge volumes of digital evidence that are likely to play a central role in future trials.<\/li>\n
  2. Decide on a coherent epistemic framework<\/em><\/strong>. The drafters of the ICC Statute, as part of the unique compromise between legal traditions reached at Rome, built a great deal of flexibility into the Court\u2019s legal framework. At trial, each presiding judge can give directions for the conduct of proceedings (or indeed, decide not to give any such directions but leave it to the parties to decide). This flexibility comes at the cost of consistency and coherence. On coherence, to paraphrase Mirjan Dama\u0161ka<\/a>, creating a successful fact-finding system combining elements of different legal traditions is \u2018not like shopping in a boutique\u2019 where one can pick up parts of one system without considering its fit with the broader systemic framework as a whole. On consistency, as Kate Gibson has argued<\/a>, we can see two Trial Chambers under the same roof, running trials at the same time before the same Court under what look like very different systems, on key practices like the admission\/submission of evidence, victim participation, and witness preparation. The judges, to their credit, recently adopted a model \u2018Direction for the Conduct of Proceedings\u2019 as part of the latest iteration of the Chambers Practice Manual<\/a>, which may go some way towards consistency in practice. However, aside from the obvious argument about whether the Manual constitutes judicial procedural law-making through the back door<\/a>, both the deliberations surrounding this development and the model direction are shrouded in secrecy, with the former having taken place at a 2021 judges\u2019 retreat and the latter being included as a confidential annex to the Manual. Because of this, we are left in the dark about both the outcome of judges\u2019 deliberations (although this can be guessed from reading more recent Conduct of Proceedings directions), and the reasons for their adoption. My book argues for the development of consistent practice for proving international crimes driven by two guiding principles: rectitude of decision and the highest standards of fairness.<\/li>\n
  3. Within that epistemic framework<\/em><\/strong>, consider what approach needs to be taken to the evaluation of evidence and the rigorous linking of fact-finding to just legal outcomes at each stage of proceedings, in line with its standard of proof. As Simon de Smet has convincingly argued<\/a>, deeper reflection on the different epistemic models and related methodologies is warranted<\/a>. ICC judges have, on occasion, fallen down the rabbit hole of the \u2018atomism v. holism\u2019 debate on the evaluation of evidence. This may prove more of a distraction than a rigorous self-evaluation, given that there are no \u2018pure\u2019 examples of either approach. At the heart of this debate, however, is the important distinction of whether judges\u2019 approach is more driven by intuition (i.e. they feel that the evidence as a whole supports their conclusion, and are not compelled to set out each stage in the process of inferential reasoning that led to that conclusion) or rationality (a recognition that one cannot hold all the information in one\u2019s head, and that therefore a rigorous framework for evaluating one\u2019s intuitions is required). An approach with rectitude of decision and fairness at its heart would consider a more methodical approach towards fact-finding, which could benefit from technology to support the construction of arguments linked to the evidence and the drawing of inferences from the evidence presented.<\/li>\n<\/ol>\n

    The ICC\u2019s evidence problem<\/a> is much bigger than the well-documented downsides of investigating from a distance, often after the fact and with limited resources (although that seems not to be the case with the current Ukraine investigation). The development of a coherent model of international criminal evidence needs a firm commitment to reflecting upon how the \u2018best epistemic fit<\/a>\u2019 for the admission, exclusion, and evaluation of evidence, and the marshalling of that evidence to support factual propositions, might be found.<\/p>\n","protected":false},"excerpt":{"rendered":"

    Does the International Criminal Court (ICC) have an \u2018evidence problem\u2019? Recent practice would seem to suggest so. Numerous cases have been dismissed at the confirmation of charges stage, with the Pre-Trial Chamber determining that the \u2018substantial grounds to believe\u2019 standard of proof had not been met. Last year, the Al Hassan Trial Chamber disappointingly admitted […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3823,7105,5804],"authors":[7044],"article-categories":[3572],"doi":[],"class_list":["post-17941","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-icc","tag-international-criminal-justice","tag-rome-statute","authors-yvonne-mcdermott-rees","article-categories-symposium"],"acf":{"subline":"Reflections on Proving International Crimes, as the ICC Turns 20"},"meta_box":{"doi":"10.17176\/20220714-113331-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17941","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=17941"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17941\/revisions"}],"predecessor-version":[{"id":18446,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/17941\/revisions\/18446"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=17941"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=17941"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=17941"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=17941"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=17941"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=17941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}