The Rules of Evidence of the ad hoc tribunals- 123docz.net

EVIDENCE BEFORE THE AD HOC TRIBUNALS

11.2 THE LEGAL FRAMEWORK OF EVIDENCE

11.2.1 The Rules of Evidence of the ad hoc tribunals

Rule 89, is the leading article in relation to the application of the law of evidence. Rule 89 of the Rules cover distinct but overlapping principles. Rule 89 of the ICTY provides:

(A) A Chamber shall apply the rules of evidence set forth in this Section, and shall not be bound by national rules of evidence.

(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

9 The principle that the prosecution has the burden of proving the case beyond reasonable doubt has been confirmed by case law. SeeProsecutor v Delalic and Others,Judgment (Delalicjudgment) (16 November 1998), Case No IT-96–21-T, paras 599, 601, where the Trial Chamber held that the onus of proof on the prosecutor was a general principle of law. See alsoProsecutor v Kayishema and Ruzindana, Judgment (Kayishema and Ruzindanajudgment) (21 May 1999), Case No ICTR-95–1-T, para 84. An exception applies where the defence ‘makes an allegation, or when the allegation made by the Prosecutor is not an essential element of the charges of the indictment’. SeeDelalicjudgment, para 602. In such situations, the defence is required to prove its allegations on the balance of probabilities, ibid, para603. See alsoProsecutor v Krnojelac,Judgment (15 March 2002), Case No IT-97–25-T, para 3;

Prosecutor v Kunarac, Kovac and Vukovic,Judgment (22 February 2001), Case Nos IT-96–23-T and IT-96–

23/1-T, para 559.

10 Rule 87(A) of the ICTY Rules provides: ‘When both parties have completed their presentations of the case, the Presiding Judge shall declare the hearing closed, and the Trial Chamber shall deliberate in private. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.’ Rule 87(A) of the ICTR Rules is similar but for the first phrase. Rule 87(A) begins with: ‘After presentation of closing arguments, …’ This is a difference in language, not a difference in substance. The principle that Trial Chambers can convict only when satisfied that the guilt of the accused has been proved beyond reasonable doubt has been confirmed, eg, inProsecutor v Tadic,Appeals Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin (Tadicjudgment on allegations of contempt) (31 January 2000), Case No IT-94–

1-A-R77, para 131.

11 Delalicjudgment (16 November 1998), paras 601, 603. In Latin this principle is called‘in dubio pro reo’

and is applied in the vast majority of domestic jurisdictions.

12 Krnojelacjudgment (15 March 2002), para 5.A similar reasoning was adopted in theKunaracjudgment (22 February 2001), para 560.

(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

(E) A Chamber may request verification of the authenticity of evidence obtained out of court.

(F) A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.

Rule 89 of the ICTR Rules provides:

(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.

(D) A Chamber may request verification of the authenticity of evidence obtained out of court.

If one compares the two Rules, one observes that, contrary to the ICTY (r 89(D)), the ICTR does not provide an exclusionary rule to safeguard the fairness of the trial.

This does not mean, however, that the ICTR does not take account of the necessity to ensure a fair trial.Inter aliain the case ofAkayesu,the Trial Chamber made clear that it ‘can freely assess the probative value of all relevant evidence. The Chamber had thus determined that in accordance with r 89, any relevant evidence having probative value may be admitted into evidence, provided that it is in accordance with the requirements of a fair trial’.13Rule 89(F) of the ICTY Rules is also unknown to the ICTR Rules. Rule 90(A) of the ICTR Rules nevertheless incorporates a similar, though more stringent principle in favour of oral testimony.14

Rule 90 of the Rules of Procedure and Evidence of both tribunals deals with the testimony of witnesses.Inter alia,this Rule sets out a witness’s duty to make a solemn declaration before testifying.15It also grants the possibility of a child giving testimony without having to make the solemn declaration ‘if the Chamber is of the opinion that the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the truth’.16Such testimony on its own does not suffice to secure a conviction.17A witness who has not given testimony

13 Prosecutor v Akayesu,Judgment (2 September 1998), Case No ICTR-96–4-T, para 136.

14 ICTR Rules, r 90(A), provides: ‘Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in r 71.’ Thus, unless r 71 applies, witnesses should appear at trial to give their testimony. Note that the same Rule applied at the ICTY until it was first amended on 25 July 1997 to include the possibility of receiving a testimony via video-conference link in exceptional circumstances and in the interests of justice. By amendments of 1 and 13 December 2000, ICTY r 90(A) became what is now r 89(F). The amendments aimed to facilitate the admission of written evidence.

15 ICTY Rules, r 90(A); ICTR Rules, r 90(B).

16 ICTY Rules, r 90(B); ICTR Rules, r 90(C).

yet is not entitled to listen to other witnesses, although this does not disqualify him as a witness.18A witness has a right to refuse to make statements which may tend to incriminate him, unless compelled by the judges to answer a question.19Rule 90(F) of the ICTY Rules, introduced initially as r 90(G) on 9/10 July 1998, and r 90(F) of the ICTR Rules, introduced on 8 June 1998, gives the Trial Chamber the authority to control the cross-examination,20and finally r 90(H) of the ICTY Rules and r 90(G) of the ICTR Rules, both introduced by the same amendment as 90(G) and 90(F) respectively, limit the cross-examination to the subject matter of the evidence-in- chief and matters affecting the credibility of the witness.21Rule 90bisof the ICTY Rules, which is identical to r 90bisof the ICTR Rules, arranges the transfer of detained witnesses. Rule 91 covers false testimony under solemn declaration. Rule 92 is interesting in the sense that it shifts the burden of proof. Rule 92 of both tribunals provides: ‘A confession by the accused given during questioning by the Prosecutor shall, provided the requirements of r 63 were strictly complied with, be presumed to have been free and voluntary unless the contrary is proved.’ Thus, contrary to the common law approach, if an accused person confessed allegedly against his will, it is up to him to demonstrate that the confession was involuntary. From the Rules it is unclear whether the standard of proof is the standard beyond reasonable doubt, or that based on the balance of probabilities.22

17 As will be pointed out later in this chapter, this is the only situation where corroboration is required.

18 ICTY Rules, r 90(C); ICTR Rules, r 90(D). An exception applies to experts. In addition, ICTY Rules, r 90(D) introduced as r 90(E) on 9/10 July 1998, states that investigators may, upon order of the Chamber, testify even when they have been present in court during the proceedings. ICTR Rules, r 90 does not include a similar provision.

19 ICTY and ICTR Rules, r 90(E). If judges indeed compel the witness to answer a question, such testimony cannot subsequently be used against the witness, save in proceedings relating to false testimony.

20 ICTY Rules, r 90(G) is more extensive than ICTR Rules, r 90(F). ICTY Rules, r 90(G) holds that the Trial Chamber ‘shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time’. ICTR Rules, r 90(F) did not adopt the same qualification.

21 Note that ICTR Rules, r 90(G) speaks of ‘points raised in the examination-of-chief. Though different terminology, in practice there is no difference. ICTY Rules, r 90(H) is more extensive than ICTR Rules, r 90(G). ICTY Rules, r 90(H) provides: ‘(i) Cross-examination shall be limited to the subject matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject matter of that case, (ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examination party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness, (iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters.’ Rule 90(G) ICTR Rules simply states, in addition to the aforementioned principle of limitation of cross-examination, that the Trial Chamber ‘may, if it deems it advisable, permit enquiry into additional matters, as if on direct examination’. By an amendment of 12 April 2001, a new r 90(G) was introduced to the ICTY Rules, whereby the Trial Chamber ‘may refuse to hear a witness whose name does not appear on the list of witnesses compiled pursuant to Rules 73bis(C) and 73 ter(C)’.

22 See DD Ntanda Nsereko, ‘Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia’, in RS Clark and M Sann,The Prosecution of International Crimes: A Critical Study of the International Criminal Tribunal for the Former Yugoslavia,1996, New Brunswick: Transaction, p 329, who in highlighting the difficulties to prove involuntariness, rightly suggests that the burden should be on a balance of probabilities or preponderance of evidence and not beyond a reasonable doubt.

By virtue of r 92bis,adopted on 13 December 2002 by the ICTY and on 6 July 2002 by the ICTR, the Trial Chamber may admit ‘in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to the proof of a matter other than the acts and conduct of the accused as charged in the indictment’. The Rule then enumerates the factors in favour and against admission of evidence under this Rule.23In order for such evidence to be admissible, it has to be supplemented by a declaration of the person producing the written statement, stating that the contents are true and correct to the best of his or her knowledge and belief.

This declaration must be witnessed by a person authorised to do so on the basis of domestic law and procedure ((B)(i)(a)), or ‘a Presiding Officer appointed by the Registrar of the Tribunal for that purpose’ ((B)(i)(b)). The witness attaches a dated note, mentioning the place of the declaration ((B)(ii)(d)), identifying the person making the declaration as the person in the written statement ((B)(ii)(a)), verifying that the person in question indeed stated that the contents are true and correct to the best of his knowledge and belief ((B)(ii)(b)), and stating that the person knew that he may be prosecuted for false testimony if the content of the written statement is not true ((B)(ii)(c)).

Furthermore, written statements may be presented in lieu of dead persons, persons who can no longer with reasonable diligence be traced, or persons who are unable to give evidence in court due to their physical or mental condition, if the Trial Chamber is satisfied on a balance of probabilities that the person in question is indeed dead, untraceable or too ill to attend; and the Trial Chamber is satisfied that there are satisfactory indicia of its reliability. Finally, r 92bis(D) authorises the Chamber to admit ‘a transcript of evidence given by a witness in proceedings before the Tribunal which goes to the proof of a matter other than the acts and conduct of the accused.’

Rule 93 allows the admission of ‘[e]vidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute’

in the interests of justice. Facts of common knowledge, such as documented by evidence in other proceedings, do not need to be proved. Instead, the Trial Chamber shall take judicial notice thereof (r 94).24Rule 94biswas introduced by amendment of 9/10 July 1998 in the ICTY Rules and on 8 June 1998 in the ICTR Rules to deal with

23 Factors in favour of admitting such evidence include: its cumulative nature ((A)(i)(a)); its relationship with relevant historical, political or military background ((A)(i)(b)); whether the evidence consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates ((A)(i)(c)); whether it concerns the impact of crimes upon victims ((A)(i)(d)); its relationship with issues of the character of the accused ((A)(i)(e)); or its relationship with factors to be taken into account in determining sentence ((A)(i)(f)). Factors against admitting such evidence include: an overriding public interest in the evidence in question being heard orally ((A)(ii)(a)); a demonstration of an objecting party that its nature and source renders the evidence unreliable, or that its prejudicial effect outweighs its probative value ((A)(ii)(b)); any other factors which make it preferable that the witness gives evidence in court ((A)(ii)(c)).

24 By amendment of 9/10 July 1998 to the ICTY Rules and amendment of 3 November 2000 to the ICTR Rules, r 94 was extended to include a sub-r (B), providing that ‘[a]t the request of a party or proprio motu,a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to the matter at issue in the current proceedings’.

expert testimony. The party not calling the expert may indicate whether it accepts the expert witness statement disclosed to him as it is, or whether it wishes to cross- examine the expert witness.25On 3–4 December 1998, r 94terwas added to the ICTY Rules on Evidence. This Rule allows a party to submit affidavits in support of an oral witness testimony to prove a fact in dispute if the opposing party does not object within five working days after the witness’s testimony. This Rule had a short existence, as it was deleted by amendment of 1 and 13 December 2000. Rule 95 is important, as it states that ‘[n]o evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings’.26

In relation to cases of sexual assault the Rules make it explicit that no corroboration of the victim’s testimony shall be required,27and that consent is no defence if the victim has been subjected to or threatened with, or has had reason to fear violence, duress, detention or psychological oppression (r 96(ii)(a)), or reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear (r 96(ii)(b)). Evidence of the victim’s consent will only be admitted if the accused satisfies the Trial Chamberin camerathat the evidence is relevant and credible (r 96(iii)). By virtue of r 96(iv) ‘prior sexual conduct of the victim shall not be admitted in evidence’.28

Rule 97 provides for privilege of all communications between lawyer and client, they thus not being subject to disclosure except with the client’s consent (r 97(i)) or where the client has voluntarily disclosed the contents of the communication to a third party, and that third party subsequently gives evidence of that disclosure (r 97(ii)). On the basis of r 98 a Trial Chamber mayproprio motusummon witnesses and order their attendance or order either party to produce additional evidence. Finally, notice should be made of r 71, which initially allowed for the production of deposition evidence on request of one of the parties only if justified by ‘exceptional circumstances’ and ‘the interests of justice’. By amendment of 7 December 1999, the ICTY deleted the requirement of ‘exceptional circumstances’; thus, the party seeking to produce deposition evidence only needs to demonstrate that such is required in the interests of justice. This example was not followed by the ICTR.

25 ICTY Rules, r 94bishas been amended twice more. The second amendment added a requirement of the opposing party to indicate, not only whether it wishes to cross-examine the expert witness, but also whether it ‘challenges the qualifications of the witness as an expert or the relevance of all or parts of the report, and if so, which parts’ ((B)(iii)). This last specification is not required under ICTR Rules, r 94bis.

26 As mentioned, the ICTY Rules originally stated that evidence obtained directly or indirectly, by means that constitute a violation of internationally protected human rights, shall be inadmissible, but the Rule was amended on 30 January 1995.

27 ICTR Rules, r 96 makes specific reference to the exception under r 90(C), namely, if the victim is a child who testifies without making the solemn declaration. A declaration from a child always needs to be corroborated by other evidence. The fact that the ICTY does not specifically mention this exception does not necessarily indicate that this exception does not apply.

28 On the basis of the sub-Rule, the Trial Chamber in theDelaliccase struck off the record information that was revealed on the victim’s prior sexual conduct as irrelevant and inadmissible evidence.

Delalicjudgment (16 November 1998), para 70. See Chapter 13, 13.4.

The Rules of Evidence of the ad hoc tribunals

ENFORCEMENT OF INTERNATIONAL CRIMINAL LAW

INTERNATIONAL TERRORISM IN NATIONAL STATUTES