Image Source: Diane Marie Aman, ‘ICC Prosecutor Symposium: Placing the Prosecutor within the International Criminal Justice Project’ ( OpnioJuris.com, 17 April 2020), https://opiniojuris.org/2020/04/17/icc-prosecutor-symposium-placing-the-prosecutor-within-the-international-criminal-justice-project/accessed 12.02.2024.
Overview
The international legal framework for collecting and presenting evidence related to international atrocities, such as war crimes, crimes against humanity, and genocide, is primarily governed by the statutes, rules, and practices of international criminal tribunals and courts. The most prominent institution dealing with such crimes is the International Criminal Court (ICC, Court), but other ad hoc and hybrid tribunals, like the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have also played significant roles.
Evidently, the governing framework for the collection and submission of evidence in an international criminal trial is primarily determined by the statute of the respective tribunal or court. Additionally, each tribunal and court develops its own set of rules of procedure and evidence, collectively forming the statutory framework. While some other documents may be included in this framework, their legal significance can differ across various jurisdictions.[1]
Law of Evidence at International Criminal Tribunals
ICTY (International Criminal Tribunal for Yugoslavia), ICTR (International Criminal Tribunal for Rwanda), and SCSL (Special Court for Sierra Leone) Rule 85 exhibit a substantial influence from common law principles, particularly evident in the structure for introducing evidence and the methods employed to interrogate witnesses. This is evident from the terminology employed, such as ‘cross-examination,’ ‘re-examination,’ ‘rebuttal,’ and ‘rejoinder.’ The process of presenting evidence is rooted in two instances put forth by the party responsible for making determinations about the evidence to be presented in its favor and for preparing witnesses for their court testimonies through ‘proofing meetings’ conducted shortly before trial proceedings.[2] Furthermore, the common law influence is also apparent in the sequence of events: the party with the burden of proving its case (usually the prosecution) initiates by summoning its witnesses, followed by the defense’s presentation, and potentially supplemented by rebuttal and rejoinder evidence if required. Additionally, Rule 85(A) grants authority to the Chamber to modify the sequence of evidence presentation ‘in the interest of justice.’
Although this framework follows an ‘adversarial’ pattern, it undergoes certain modifications. Firstly, the Chambers possess the authority to ‘mandate either party to provide supplementary evidence’ and to independently summon witnesses and ensure their presence. This additional evidentiary material evidence is slotted into the case presentation after both parties have submitted their evidence.[3] Secondly, judges retain an unrestricted ability to question witnesses; in theory, this could encompass substantive inquiries or even overtake the examination process from the parties themselves.[4]
Law of evidence at the International Criminal Court
The Rome Statute and the ICC Rules of Procedure and Evidence (ICC RPE) establish a comprehensive set of standards and rules governing the entire process of evidence collection, management, presentation, admission, and evaluation during ICC trials[5].
Initially, according to the Rome Statute, the ICC can commence the investigation with the request of a State Party to the Rome Statute to the Office of the Prosecutor to carry out an investigation. A State not party to the Statute can also accept the jurisdiction of the ICC with respect to crimes committed in its territory or by one of its nationals, and request the Office of the Prosecutor to carry out an investigation. The United Nations Security Council (UNSC) may also refer a situation to the Court[6].
Proceeding to the stage of preliminary examinations, ICC prosecutors examine a series of evidence provided by various state parties, subsidiary organizations under international institutions such as the United Nations Human Rights Council, and privately-owned think tanks[7]. The evidence can be official documents, military maps and equipment, weapons, and photographs, as well as video and audio recordings[8]. On some occasions, collection of witness testimonies and inspection of mass graves or crime scenes will be conducted. Rules 111 & 112 state how interviews can be recorded in cases involved[9]. This step aims to determine whether a particular crime meets the requirements to initiate an investigation and ensure it is under the ICC’s jurisdiction with no ICC prosecutors working ultra vires. Furthermore, ICC prosecutors should also consider if there are genuine national proceedings and if the investigation will serve the interests of justice and victims[10]. As indicated in Rule 115, they are able to submit a written request to the Pre-trial chamber for authorization to take certain measures in the territory of the State Party in question according to paragraph 3 (d), Article 57 of the Rome Statute. The Pre-Trial Chamber will inform and invite views from that state party whenever necessary.
Due to the lack of independent enforcement powers and the full power to enter or obtain evidence in sovereign countries, the ICC depends on the “cooperation and assistance” of countries in order to facilitate investigations and prosecutions. As listed in Article 93, cooperation and assistance may include: (1) allowing access to documents and other evidence; (2) tasking domestic personnel to assist the Office of the Prosecutor personnel; (3) helping locate witnesses and victims; (4) assisting in the identification of crime sites[11] along with other duties that are “not prohibited by the law of the requested State” and which will facilitate investigations or prosecutions[12].
Despite the fact that cooperation with the ICC is a legal obligation of each State Party under Article 86 of the Rome Statute and Article 88 obliges States to adopt domestic laws to permit cooperation with the ICC, the issue of obtaining such State cooperation is one of the major challenges for the ICC. The partial solution for this problem is the Rome Statute provision, which allows the Prosecutor to receive information from any reliable source for the purpose of making an informed decision on whether or not to open an investigation[13].
Moreover, Article 87 of the Rome Statute contains the provisions governing requests by the ICC for cooperation with investigations and states that upon a finding by the ICC of failure by a State Party to cooperate, the dispute may be referred to either the Assembly of States Parties or to the UNSC for resolution[14].
Case studies of collecting evidence related to atrocities through domestic jurisdiction
Iraq
Following its attainment of independence in 1932, Iraq has been entangled in a series of protracted conflicts and episodes of internal strife. Despite its non-membership status within the ICC, Iraq was undergoing a phase of preliminary examinations. These examinations have been initiated in response to assertions surrounding the mistreatment of detainees attributed to military personnel from the United Kingdom.
During this phase, the ICC Office of the Prosecutor closed the preliminary examination several times – in 2006, 2017, and 2020.
On December 9, 2020, the Prosecutor closed the preliminary examination without opening an investigation for the last time. After assessing the various domestic investigations conducted by the UK, the Prosecutor determined that he could not conclude that the UK has been unwilling genuinely to investigate or prosecute, or that decisions not to prosecute resulted from that unwillingness[15].
Kashmir
The human rights situation in Kashmir has been monitored by the Office of the High Commissioner for Human Rights (OHCHR) since 2016. Since July 2016, the High Commissioner for Human Rights has on numerous occasions requested the Governments of India and Pakistan that his Office be given unconditional access to Kashmir to assess the human rights situation. India rejected this request, while Pakistan offered access should the Office obtain access to Indian-administered Kashmir. Without unconditional access to Kashmir on either side of the Line of Control, the OHCHR has undertaken remote monitoring of the human rights situation. As a result of such monitoring, there were a couple of reports (from June 14, 2018[16] and 8 July 2019[17]) released by OHCHR.
Afghanistan
On 31 October 2022, Pre-Trial Chamber II of the ICC authorized the Prosecution to resume an investigation into the Afghanistan Situation. The judges considered that Afghanistan is not presently carrying out genuine investigations in a manner that would justify a deferral of the Court’s investigations and that Afghanistan authorities are not showing an interest in pursuing the deferral request it submitted on 26 March 2020[18].
Therefore, the rules on the procedure for collection and presentation of evidence enshrined in the Rome Statute of ICC and The Rules of Procedure (Article 69) and Evidence (Сhapter 4) are applicable in this case.
Myanmar
On 4 July 2019, the Office of the Prosecutor of the International Criminal Court requested authorization from Pre-Trial Chamber III to initiate an investigation into crimes within the Court’s jurisdiction in which at least one element occurred on the territory of the People’s Republic of Bangladesh[19].
The investigation will be conducted in conformity with the rules on collection and presentation of evidence, enshrined in the Rome Statute of ICC and The Rules of Procedure (Article 69) and Evidence (Сhapter 4).
Palestine
The Palestinian government lodged a declaration under Article 12 (3) of the Rome Statute to accept the ICC’s jurisdiction over alleged crimes committed within the territory of Palestine since 13 June 2014. Through depositing the instrument of accession with the UN Secretary-General, Palestine acceded to the Rome Statute on 2 January 2015[20]. After going through a series of examinations by the Pre-trial chamber related to Article 12 (2)(a) of the Rome Statute, Palestine was ultimately categorized as a state party[21]. After that, the Prosecutor opened the investigation into the case of Palestine on 3 March 2021 in particular to cases that occurred in Gaza, the West Bank including East Jerusalem[22].
Conclusion
With regard to the above-mentioned, it is feasible to draw the following conclusions:
(1) International Criminal Tribunals and the ICC: The collection and presentation of evidence related to international atrocities are governed by the statutes, rules, and practices of international criminal tribunals and courts, including the International Criminal Court (ICC) and other ad hoc or hybrid tribunals. Each tribunal or court develops its own set of rules of procedure and evidence to guide the evidentiary process during trials.
(2) Rome Statute and ICC Rules: The International Criminal Court’s legal framework is defined by the Rome Statute and the ICC Rules of Procedure and Evidence. These documents establish standards and procedures for evidence collection, management, presentation, admission, and evaluation.
(3) Cooperation and Assistance: The effectiveness of international criminal trials heavily relies on cooperation and assistance from states. States Parties to the Rome Statute have obligations to cooperate with the ICC in evidence collection, including allowing access to documents, witnesses, and evidence. Failure to cooperate can lead to recourse through the Assembly of States Parties or the United Nations Security Council.
(4) Admissibility of Evidence: The admissibility of evidence in international criminal trials is subject to rigorous standards. Evidence must be relevant, and probative, and its probative value must outweigh its prejudicial effect. Rules and procedures ensure that evidence is authentic, reliable, and not tainted by violations of human rights.
(5) Complementarity and Domestic Jurisdictions: The principle of complementarity dictates that domestic jurisdictions have the primary responsibility to prosecute international crimes. The ICC steps in when national authorities are unwilling or unable to conduct genuine investigations and prosecutions. Domestic mechanisms, like truth commissions and specialized tribunals, can play a role in evidence collection and accountability.
(6) Case Studies: The text provides case studies of ongoing or past situations involving Iraq, Kashmir, Afghanistan, Myanmar, Palestine, and others. These case studies showcase how evidence is collected, analyzed, and presented in different contexts, often involving cooperation with domestic authorities or specialized international bodies.
[1] For example, ICC regulations of the Court adopted 26 May 2004, ICC-Bd/01-01-04. See also Claus Cress, “The Procedural Texts of the International Criminal Court”, Journal of International Criminal Justice, vol. 5, 2 (2007).
[2] Rule 85(A) ICTY, ICTR and SCSL RPE.
[3] Rule 85(A)(v) ICTY and ICTR RPE; Rule 85(A)(iv) SCSL RPE. However, the SCSL RPE does not include a rule identical to Rule 98 ICTY and ICTR RPE. It is noted that the SCSL Chambers may be competent to rule on evidence based on Rule 54.
[4] Rule 85(B) ICTY, ICTR, and SCSL RPE; Ntanda Nsereko, ‘Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, (1994) 5 Criminal Law Forum 507, at 538.
[5] Rome Statute, Art 69 and ICC RPE, Chapter 4(I).
[6] International Criminal Court, ‘Understanding the International Criminal Court’ (Assessed 25 August 2023)
[7] Julian Borger, ‘‘Leave no stone unturned’: how investigators gather evidence of war crimes in Ukraine’ (The Guardian, 6 March 2022); In the case of investigating Russian forces’ war crimes in Ukraine, the ICC prosecutors were supported by the London Metropolitan Police to gather evidence from UK sources, along with a commission of inquiry from the UN Human Rights Council and an expert mission established by the Organization for Security and Cooperation in Europe and the Pilecki Institute, a Polish think tank studying the nature and impact of totalitarian regimes.
[8] Rule 104, International Criminal Court Rules of Procedure and Evidence
[9] For example, in Rule 111, suspects and their counsel should sign their testimony with a clear note of the date, time and place and attendees of the questions. They should be informed of their rights according to law; in Rule 112, the questioning shall be audio- or video-typed.
[10] American Bar Association, ‘How the ICC works- Start of jurisdiction & Preliminary Examination’ (2023) <https://how-the-icc-works.aba-icc.org> assessed 15 August 2023
[11] International Criminal Court, ‘How the Court Works – jurisdiction’ (Assessed 19 August 2023)
[12] Valerie Oosterveld, Mike Perry, and John McManus, The Cooperation of States With the International Criminal Court , 25 Fordham Int’l L.J. 767 (2001).
[13] International Criminal Court, ‘Recommendations on States’ Cooperation with the International Criminal Court (ICC): Experiences and Priorities’ (Assessed 25 August 2023)
[14] Rome Statute, Art 87.
[15]ICC, ‘Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the situation in Iraq/United Kingdom’ (2023). Available at: https://www.icc-cpi.int/news/statement-prosecutor-fatou-bensouda-conclusion-preliminary-examination-situation-iraq/united (Assessed 25 August 2023)
[16] Office of the United Nations High Commissioner for Human Rights, ‘Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan’, (14 June 2018). Available at: https://www.ohchr.org/sites/default/files/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf (Assessed 25 August 2023)
[17] Office of the United Nations High Commissioner for Human Rights, ‘Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019’, (8 July 2019). Available at: https: //www.ohchr.org/sites/default/files/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf (Assessed 25 August 2023)
[18] ICC, `ICC judges authorize Prosecution to resume investigation in Afghanistan` (2022). Available at: https://www.icc-cpi.int/news/icc-judges-authorise-prosecution-resume-investigation-afghanistan (Assessed 25 August 2023)
[19] ICC, `Information for victims. Bangladesh/Myanmar`. Available at: https://www.icc-cpi.int/victims/bangladesh-myanmar (Assessed 25 August 2023)
[20] International Criminal Court, ‘ICC 01/18 – Situation in the State of Palestine’ <https://www.icc-cpi.int/palestine> assessed 22 August 2023
[21] International Criminal Court, ‘ICC Pre-Trial Chamber I issues its decision on the Prosecutor’s request related to territorial jurisdiction over Palestine’ (5 February 2021) <https://www.icc-cpi.int/news/icc-pre-trial-chamber-i-issues-its-decision-prosecutors-request-related-territorial> assessed 22 August 2023
[22] Office of the Prosecutor, ‘Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine’ (International Criminal Court, 3 March 2021) <https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-respecting-investigation-situation-palestine> assessed 22 August 2023
Authors
Yelyzaveta Karliuha, Research Associate, RCIL & HR, llizakarlyuga@gmail.com
Alexandros Anthis, Research Associate, RCIL & HR, alexandros.anth@gmail.com
Henson Kwok, Research Associate, RCIL & HR, hensonkwok@gmail.com