Introduction
The exclusion of evidence in the International Criminal Court (hereinafter “Court” / “ICC”) is governed by Article 69(7) of the Rome Statute (hereinafter “Statute”). Article 69(7) stipulates a two-fold assessment. Herein, the chapeau of Article 69(7) stipulates its first limb which requires that the evidence was obtained in violation of an internationally recognised human right or the Rome Statute. Upon the fulfilment of the first limb, the second limb comes into play which requires that it must be established that such violation either casts substantial doubt on the reliability of the evidence or seriously damages the integrity of the proceedings. Only upon the fulfilment of both of these limbs will the evidence be excluded.
In 2018, Al-Hassan was surrendered by the Malian authority to the ICC to face charges of war crimes and crimes against humanity. Before his arrival at The Hague, he was held by Malian authorities, and his Defence claimed he was tortured there. When the Prosecution later relied on statements he gave to the Office of the Prosecutor (hereinafter “OTP”), the Defence asked the Court to exclude those statements. Before we address the question of exclusion, one of the pertinent questions which warrants equal importance is the collection of the impugned evidence.
The collection of the evidence under the Statute is often addressed as a peculiarity because there is no international criminal law enforcement agency and, even before the trial begins, the question of who conducts the investigation assumes considerable significance. Since the involvement of the ICC and national authorities would have varying consequences concerning the evidentiary issues under the Rome Statute, more often than not the Court is dependent on the support of the national authorities, who conduct the investigation and as a consequence obtain the evidence.
The aim of this piece is to understand and analyse how the Court draws the line with such a peculiarity when it is presented with evidence which is collected by the national authorities in violation of the Statute or any internationally recognised human right. Further, to eventually emphasise on the need for a space where investigations led by international investigators are accommodated frequently owing to the efficiency it brings to conduction of trial. It argues that this ad hoc line-drawing itself points to the need for a cooperation regime that accommodates greater OTP involvement in conducting investigation and collecting evidence.
The Regime of Cooperation
The Statute in Part 9 stipulates that it is the primary responsibility of the contracting State Parties to conduct investigations, Article 93 in particular enables the Court to make requests pertaining to the collection of evidence. Such a request encompasses interrogation of suspects and witnesses, as well as the search, seizure and examination of sites.
The on-site investigative involvement by the Court is limited. For instance, the OTP can only record witness testimonies and examine them, but the examination of a public site cannot be done without modification. This lack of involvement and reliance on the intermediaries results in a lack of efficiency of the Court’s investigations. Scholars like Petra Viebig have discussed and shed light on the criticism of the reluctance to permit independent investigations spearheaded by the OTP. Particularly in the context of collecting and obtaining evidence, as it can be understood that investigators from the ICC would be better equipped to undertake investigations which will be less likely to cause any hurdle in the smooth conduct of the trial as they will be well aware of the best practices that are to be followed while obtainment and collection of evidence.
Within the existing cooperation regime where the investigators have such a hands-off approach, the Court necessarily relies heavily on the national authorities to spearhead the investigation. Ergo, the peculiarity arises: how does the Court deal with evidence which is illegally obtained by the national authorities?
The Fine Line
The fine line is the line which exists between the guarantee of due process rights which the Statute makes and how the Court safeguards those due process rights. Examining the fine line encompasses various considerations such as the nature of the violation while obtaining the evidence. Article 69(7) acts as a bulwark against the misdeeds of the national authorities protecting the interests of the accused, as it places emphasis not only on the manner in which the evidence is collected, but also on the implications that such an admission of tainted evidence might have on the proceedings. However, it is not as simple as it looks – any violation committed by the national authorities raises various concerns for the Court to look into while deciding on the evidentiary issues.
In this context, the decision in Al-Hassan by the Court showcases how the Court drew that fine line between the evidence which is collected by the national authorities and the evidence which is collected by the OTP. The distinction drawn in Al-Hassan is significant because the exclusion affects the interests of the stakeholders involved. For the accused, exclusion ensures due process protection, and prevents tainted evidence obtained through torture to be relied upon. For the victims, exclusion might affect the effective adjudication of international crimes. Prosecution likewise has an interest as exclusion limits the evidence available on record to establish the charges. Therefore, the question is not simply an examination of whether the accused’s rights were violated, but whether the violation was sufficiently connected to the obtainment of the impugned evidence – which inherently makes attribution central to the applicability of Article 69(7).
Essentially, the reasoning which followed in Al-Hassan was embedded in separation, where the Court distinguished between the nature of treatment by the national authorities and the OTP, as there was an allegation of torture by the accused directed towards the national authorities. This eventually led to the defence filing for exclusion because as per their case the accused was subjected to inhumane treatment and was tortured by the Malian authorities. As a consequence, it affected the accused’s ability to provide an informed waiver of his rights during the ICC interviews.
However, that is where the Court drew the line by holding that the statements in question were obtained by the OTP and the accused did not exhibit any signs of torture or inhumane treatment, during the course of the interviews. Keeping in mind these circumstances, the Court rejected the Defence’s request of exclusion and drew a fine line by evaluating whose conduct is tainted, all while underscoring its emphasis on the record which not only showcased consent but also voluntariness by the accused.
This is necessarily a case in point for underscoring the importance of allowing a space where investigations can be led by international investigators from the OTP. Scholars like Cryer have discussed that the reluctance to speak by witness will be less if the questions are put to them by the international investigators without the presence of national authorities.
Drawing the Line: A Balancing Exercise
The ethos of the Court and its jurisprudence rests in its approach to strike a balance between effective prosecution of crimes and protection of the accused’s rights. The Court undertakes a balancing exercise to understand what weighs in favour of admissibility and what does not. Now, we have seen how in Al-Hassan the Court drew the line between the evidence recorded by the OTP and the national authorities, and admitted the evidence.
However, there is much more nuance to how attribution works, which can be better underscored by looking at Lubanga, where the Court noted that to discern the impact of the violation, it is pertinent to see how it affects the suspect or the accused in question. In Lubanga, the Court took this factor into consideration while deciding on this evidentiary issue, and admitted evidence which was obtained through an illegal search. If the principle articulated in Lubanga were applied to a situation in which statements had been coercively obtained by national authorities, such statements would likely have been excluded, as the impact of the violation would have been borne directly by the accused. Al-Hassan expands an important element to this balancing exercise.
Before the Court considers whether evidence should be excluded, it should first determine whether Article 69(7) is triggered. Especially in cases where different stakeholders are involved – analysis is warranted to establish a sufficient connection between the violation and the obtainment. A violation by national authorities will not ipso facto warrant exclusion specifically where the evidence was subsequently obtained independently by the OTP. This approach highlights the difficulty created by the Court’s reliance on national authorities. If the Court can distinguish and separate its own evidence-gathering from an earlier violation by national authorities, then the protection afforded by Article 69(7) may depend on the degree of control exercised by the OTP over the investigative process. Cases like Al-Hassan illustrate not only a question of admissibility, but the broader institutional roadblock of ensuring that evidence reaching the Court is consistent and untainted.
Mr. Atharv Arnav is a fourth year B.A. LL.B. (Hons.) student at Damodaram Sanjivayya National Law University. His areas of interest include international commercial arbitration and allied disciplines.
Mr. Sourav Ghosh is a fourth year B.A. LL.B. (Hons.) student at Damodaram Sanjivayya National Law University. His areas of interest include international criminal law and banking and finance law.
PC: United Nations International Residual Mechanism for Criminal Tribunals (IRMCT).
