EVIDENCE BEFORE THE AD HOC TRIBUNALS
11.2 THE LEGAL FRAMEWORK OF EVIDENCE
11.2.2 Analysis of the Rules on Evidence of the ad hoc tribunals
Two main principles, common to both tribunals, can be derived from r 89. The first is that national rules of evidence have no binding effect (r 89(A)).29The ICTY and ICTR Rules of Procedure and Evidence are nevertheless influenced by domestic legal systems, and so are their interpretations.30The civil law influence can be traced back to r 89(C) by virtue of which all relevant evidence with probative value may be admitted.
This reflects the free system of proof, which is inherent to most civil law jurisdictions,31 and constitutes the second principle that can be derived from r 89.32As rightly pointed out in theTadiccase: ‘In the civil law system, the judge is responsible for determining the evidence that may be presented during trial, guided primarily by its relevance and its revelation of truth.’33Common law systems, on the other hand, are familiar with exclusionary rules, such as rules that exclude irrelevant evidence in general,34and more specifically hearsay evidence, similar fact or character evidence, opinion evidence, evidence protected by public immunity interest, evidence protected by legal privilege, and improperly obtained evidence, in particular confessions that are made under pressure. Thus, the assessment of the reliability of evidence takes place at a different point in time. In common law systems the assessment occurs prior to trial, at the stage of the admission of evidence, while the assessment in civil law systems occurs after trial when judges deliberate on the basis of the totality of evidence presented at trial. The main reason for this difference in approach is, as briefly pointed out in the introduction, that common law systems rely on juries to render their judgments. Dubious evidence should be kept away from them, as such may influence
29 This has been confirmed by the case law of both ad hoc tribunals. See, eg,Tadicdecision on hearsay (5 August 1996), para 7;Akayesujudgment (2 September 1998), para 131, where the Chamber noted that
‘it is not restricted under the Statute of the Tribunal to apply any particular legal system and is not bound by any national rules of evidence. In accordance with r 89 of its Rules of Procedure and Evidence, the Chamber has applied the rules of evidence which in its view best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and general principles of law’. Further confirmed, inProsecutor v Rutaganda,Judgment (6 December 1999), Case No ICTR-96–3-T, paras 16–17, andProsecutor v Musema,Judgment (27 January 2000), Case No ICTR- 96–13-T, para 33;Brdanin and Talk,Admission of Evidence Order (15 February 2002), para 5.
30 The Chambers examine both civil and common law systems when determining an issue. SeeTadic decision on hearsay (5 August 1996), para 7.
31 In the French system this principle is referred to as‘le principe de la liberté des preuves’, meaning that, apart from the cases where the law provides otherwise, offences may be proven by any means of evidence, and it is for the judge to decide according to his ‘intime conviction’ (ie, inner conviction) (Art 427, Code de Procedure Pénale). G Stefani, G Levasseur and B Bouloc,Procédure Pénale,1867, 18th edn, 2001, France: Dalloz, p 108, paras 131, 132 and pp 117–18, para 150. In Belgium the same principle of ‘intime conviction’ is applied (Code d’Instruction Criminelle, Art 342). In Germany, the system of proof is one of‘Freibeweis’(ie, free proof), which means that judges are free in assessing the weight of evidence. They are nonetheless bound by means of proof incorporated in statutory law.
See M Delmas-Marty,Procédure Pénale d’Europe,1995, France: Dalloz, p 65, 103, 105–06. The Dutch system of proof is similar to the German system. The judges are free to assess the evidence on the basis of their‘rechterlijke overtuiging’(judicial conviction), but have to base their judgment on those means of proof that are enumerated in the statutory law, in Wetboek van Strafrechtsvordering (Code of Criminal Procedure), Art 339(1).
32 Indeed, as confirmed inProsecutor v Aleksovski,Appeal Judgment (24 March 2000), Case No IT-95–
14/1-A, para 60, ‘[u]nless the Rules or general international law provides otherwise, Trial Chambers are free to admit various types of evidence to determine whether or not a particular fact has been established beyond reasonable doubt’.
33 Tadicdecision on hearsay (5 August 1996), para 13.
34 See, eg, r 402 of the US Federal Rules of Evidence applied, which provides: ‘All relevant evidence is admissible, except as otherwise provided…evidence which is not relevant is not admissible.’
the minds of the jury members. Civil law countries often have judges on the bench who determine the case with or without lay members. Judges are trained to give appropriate weight to the evidence that is presented before them. Another reason is that common law jurisdictions are reluctant to rely on indirect evidence. It is at the heart of adversarial proceedings to have witnesses testify of their own knowledge rather than to rely too heavily on documents or out-of-court statements. Although contemporary civil law systems tend to rely more on court proceedings than in previous years, restrictions on the admission of evidence are still rare.
The approach of the ad hoc tribunals is more in line with the civil law approach in this respect. The civil law influence becomes apparent when carefully examining the Rules. Rule 89 is the most striking example, although the terminology directly stems from common law, thus, presumably also its interpretation. Also a number of other Rules, and through the adoption of new Rules and amendment of old Rules increasingly so, are rooted in civil law. Indeed, rr 71 and 92bis,allowing for indirect evidence, find their basis in the civil law tradition. These Rules are both very broad. Rule 71 requires that the admission is in the interest of justice and in the ICTR that there are exceptional circumstances. Rule 92bis,on the other hand, has no such requirements and covers practically any form of evidence. Although the Rule only applies to evidence relating to matters ‘other than the acts and conduct of the accused as charged in the indictment’, evidence submitted in accordance with r 92bis‘needs to bear some evidentiary value related to the issues at stake’.35Moreover, r 93, which allows for the admission of evidence of a ‘consistent pattern of conduct relevant to serious violations of international humanitarian law’, is more civil law influenced. Whilst civil law systems generally allow the admission of evidence of previous misconduct of the alleged perpetrator, such is prohibited in common law jurisdictions.
The only exclusionary rule that has been incorporated in the Rules of the ICTY and ICTR constitutes r 95, allowing for the exclusion of evidence that has been obtained irregularly where this has had an impact on its reliability or the integrity of
35 Prosecutor v André Ntagerura and Others,Decision on the Defence Motion for Leave to Present Evidence in the Form of a Written Statement under r 92bis(13 March 2003), Case No ICTR99–46-T, para 14. It should be noted that written statements which fall within the ambit of r 92biscannot be submitted under r 89(C), thereby avoiding the need to meet the criteria of r 92bis,as ‘the general requirement under r 89 that admissible evidence be relevant and probative applies in addition to, and not in lieu of, the more specific provisions of r 92bis’.SeeProsecutor v Ndayambaje, Kanyabashi and Others,Decision on the Prosecutor’s Motion to Remove from her Witness List Five Deceased Witnesses and to Admit into Evidence the Witness Statements of Four of Said Witnesses (22 January 2003), Case No ICTR-98–
42-T, para 20, thereby following the approach adopted inProsecutor v Galic,Appeal Judgment (7 June 2002), Case No IT-98–29-AR73 2, para 31.
36 Delalic and Others,Decision on Motion by the Defendants on the Production of Evidence by the Prosecution (8 September 1997), para 9; inBlaskic,Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability (21 January 1998), Case No IT-95–14-T, para 14, it was stated that r 89(D) allows the Defence ‘to demonstrate that a hearsay testimony which was declared admissible must, in the end, be excluded because its probative value is insufficient’. This ground of exclusion exists also in most civil law systems under influence of regional human rights bodies. See, eg, for the case of France,op cit,Westet al,note 31, pp 222–24. The German system incorporated a number of‘Beweisverbote’(prohibitions of evidence non-admissibility of evidence) in paras 52–55 and 136(a) of the 1987/2001 Strafprozess Ordnung (Code of Criminal Procedure). Seeop cit,Delmas-Marty, note 31, p 105. The Dutch system created a discretion for judges to exclude evidence if principles of fair administration of justice have been violated, depending on the gravity of the violation and the consequences thereof, in accordance with Art 359(a) of the Wet van Strafvordering (Code of Criminal Procedure).
the proceedings.36In addition, a privilege of communications between lawyer and client is provided for in r 97, which has been recognised in most domestic systems, whether civil law or common law. Another civil law influence can be found in r 98, which allows judges to orderproprio motuthe production of new or additional evidence without the need to rely on the evidence produced by the parties.37
Thus, on the level of admission of evidence the civil law system is the more influential legal system in the sense that there are few formal grounds of exclusion of evidence. On the basis of the Rules, it seems that the admissibility criteria are, like in civil law systems, very lenient. The assessment of reliability and probative value occurs on the level of the deliberation by the judges after having heard all evidence.
Reliability and probative value are thus a question of weight, rather than admissibility.
In addition, the ad hoc tribunals increasingly depart from the principle that witnesses should give evidence in court in presence of the accused, as set out in Art 21(4)(e) of the ICTY Statute and Art 20(4)(e) of the ICTR Statute, as well as r 89(F) of the ICTY Rules and r 90(A) of the ICTR Rules. However, unlike most civil law jurisdictions where some minimum standards of weight of evidence are generally provided for in the criminal codes, the Rules on Evidence of the ad hoc tribunals have not incorporated specific criteria as to how to determine weight. The only exception is r 96, dealing with sexual assault cases. Rule 96(i) specifies that no corroboration of testimony is required in sexual assault cases. The fact that the Rules are silent about cases other than sexual assault does not indicate that corroboration is required in cases other than sexual assault. Both tribunals made that very clear.38
Hence, the system of proof applied at the ad hoc tribunals is a mix of domestic legal systems, although more civil law than common law influenced. It should be noted that the tribunals perceive themselves assui generisinstitutions, rather than mere hybrid systems of common law and civil law traditions.39The question is whether such asui generissystem functions well, as incorporating bits from one system and bits from another brings along the danger that the protection mechanism that is inherent to a singular system falls apart when mixed together.Another problem is that the Rules leave many gaps. Questions, such as when a witness is competent, when controversial evidence will be excluded and how the weight is being assessed, remain unanswered.40It should, however, be noted that:
37 Judges do not often use their discretion under r 98, but on a number of occasions they have invoked r 98 to order the production of new or additional evidence. See, eg,Prosecutor v Blaskic,Decision of Trial Chamber I in Respect of the Appearance of General Enver Hadzihasanovic (25 March 1999), Case No IT-95–14.
38 Prosecutor v Tadic,Judgment (7 May 1997), Case No IT-94–1-T, para 535;Rutagandajudgment (6 December 1999), para 18, wherein the Chamber’s approach was ‘that it will rely on the evidence of a single witness, provided such evidence is relevant, admissible and credible’;Delalicjudgment (16 November 1998), para 594;Akayesujudgment (2 September 1998), para 134;Musemajudgment (27 January 2000), para 45.
39 SeeBlaskichearsay decision (21 January 1998). This is consistent with the argument of the ICTR Trial Chamber that the Rules ‘are broader than either the common or civil law systems and they reflect an international amalgamated system without necessarily adopting a single national system of evidence’. SeeProsecutor v Bagosora,Decision on the Defence Motion for Pre-Determination of Rules of Evidence [Bagosorapre-determination decision], (8 July 1998), Case No ICTR-96–7-T, p 4.
40 Because of lack of clarity of the Rules of Evidence, the defence teams for Bagosora at the ICTR filed a motion for pre-determination of the Rules. This request was rejected on the ground that ‘[t]he basic rule is to allow flexibility and efficacy in order to permit the development of the law’. See Bagosorapre-determination decision,ibid,p 4.
…[i]n the context of rules of procedure and evidence, the approach of the Statute of this Tribunal is to lay down a framework or a structure, conceived in the broadest terms, with due regard to the accused’s rights to a fair and public hearing. The Trial Chamber, therefore, has the responsibility to ensure that the trial is fair and expeditious and that the proceedings are conducted in accordance with the Rules, with full respect for the procedural and substantive rights of the accused and also for the protection of victims and witnesses.41
Thus, the importance of a fair trial is recognised and the Rules should be read in that light. In order to determine whether this mixed system accurately matches the reality of international criminal justice, it is important to review how these Rules are being applied. The discussion is limited to issues of admissibility and weight of evidence and the relationship between the two. It is beyond the scope of this chapter to provide a full and comprehensive discussion on the interpretation of each Rule separately.
Thus, only the most important elements are highlighted. Cases where the defendant pleaded guilty are left out of the discussion as, in such cases, the guilty plea is the main basis for the conviction. The prosecution does not need to prove the case beyond reasonable doubt independently of the guilty plea.42
The ICTY and ICTR approach will be discussed jointly as they do not significantly differ. To the contrary, they have influenced one another, although most of the doctrine has been developed at the ICTY rather than the ICTR. Where there is a difference, it will be so stated. If not, it may be assumed that the principles discussed apply to both tribunals even where reference is made to the case law of only one.