Evidence matters in ICC trials

In the latest issue of its International Criminal Law (ICL) Perspectives series, the International Bar Association (IBA) presents key evidentiary issues in international criminal law and their impact on fair trial standards at the International Criminal Court (ICC). Evidence Matters in ICC Trials draws on comparative experiences from other international crimes tribunals as well as the IBA’s earlier reports, and makes recommendations to ensure full protection for the rights of the accused.

New IBA Report on ‘Evidence Matters in ICC Trials’

The International Bar Association (IBA) launched a new report that examines the law and practice of some core evidence matters in International Criminal Court (ICC) trials.  The report looks at the ICC in the context of other international criminal tribunals, and builds on the IBA’s previous reports, to identify existing issues and future considerations for fair trials before the ICC.  It also examines how evidence matters are affected by other dynamics at the Court, including the overall project of making the ICC’s proceedings more efficient, and the roles played by Judges and States Parties.

What are the key areas covered by the 2016 IBA International Criminal Law Perspectives report?

Digital and technologically-derived evidence

There are many reasons for the ICC to diversify its sources of evidence, and in doing so to ensure that witness testimony is not the sole source of evidence in its trials.  The use ofdigital and technologically derived evidence is increasing in the ICC’s investigations and trials, and will require new skills, technology, and resources for the Court.

Among the IBA’s recommendations are increased coordination between the Office of the Prosecutor, Registry, Chambers, and counsel representing the Defence.  The experience of other international criminal tribunals highlights the importance of an inclusive planning process as well as adequate legal aid and access to the services of experts, to incorporate such evidence efficiently and with full protection of the rights of the accused.

Admission of prior recorded testimony in ICC trials

While witness testimony will remain the primary form of evidence before the ICC, trials can be made more efficient by admitting some recorded statements in place of hearing all or part of a witness’s testimony in the courtroom. More efficient trials support the accused’s right to be tried without delay and victims’ right to justice, as well as the desire of all stakeholders, including States Parties, to see the Court’s limited resources used efficiently.

In this report, the IBA analyses the Court’s jurisprudence but also looks at this practice from multiple angles, including: how to improve the recording of statements; how to balance admission of prior recorded testimony and the strengthening of witness protection; and how to retain the use of prior recorded testimony as an exceptional measure for witnesses who may face intimidation.

Assessing evidence within trial proceedings

The ICC has, for the first time, articulated procedures for ‘no case to answer’, or motion for judgment of acquittal.  The IBA’s report examines the procedures and ruling on this process, and compares the ICC’s approach with that of other international criminal tribunals. The report recommends adopting standardised procedures across cases and considering an amendment to the ICC’s Rules of Procedure and Evidence. 

Finally, the IBA examines the ICC’s frequent use of Regulation 55 of the Regulations of the Court, which allows legal recharacterisation. Noting the evolution of the practice over the years, the report highlights the need for a well-structured and comprehensive pre-trial process, including better investigations and evidence presented by the prosecution. The IBA recommends using Regulation 55 as a last resort and with full protection for the rights of the accused.

To read the full report, click here. For more on the IBA’s ICC and ICL Programme, click here.

The IBA International Criminal Court and International Criminal Law (ICC & ICL) Programme monitors issues related to fairness and equality of arms at the ICC and other Hague-based war crimes tribunals and encourages the legal community to engage with the work of these Courts. The IBA’s work includes thematic legal analysis of proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice. Based at the Peace Palace in The Hague, the ICC & ICL Programme consults and interacts with Courts’ officials, civil society organisations, academics and international lawyers.