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The International Criminal Court

The Rome Statute


Article 69. Evidence

Madalina Tifrea
Introduction

There has been a prolonged need for an international criminal court, this being an
interest which has been constant for the international community, although the creation of
such an institution happened after the Second World War. Even though there have been
created courts with the same interests and motivations, the United Nation`s Resolution no.
52/160 from December of 1997 has established the duty of adoption of a convention which to
foster the creation of the International Criminal Court. On the 17th of July the “Rome Statute
of the International Criminal Court” was adopted with a vote of 120 out of 140 in favour.

Given its duties and serious crimes that the International Criminal Court is working with
involving the whole international community, the provisions in regard of evidence is a subject
that is of serious importance. Today, with the evolution of the international cooperation and
globalized society, is imperative that crimes of the past to be accounted and avoided in the
future. Interventions such as exhuming mass graves, medical examinations, foresting work
being conducted and investigative work involving witness testimonies and governmental
records, are crucial evidences in the legitimacy of the International Criminal Court`s work1.
The rules regulating how evidence is submitted and assessed into the determination of the
issues before the Court are stated in Article 69 of the Rome Statute. These rules are stated in
order to determine the legal framework for the determination of the conclusions of the
submitted cases.

One of the main challenges, as we will conclude, is the admissibility and determination of
relevant and irrelevant evidences which is dependent of the Trial Court`s abilities.
Professional judges have the role to evaluate the evidences and establishes the degree of
culpability. This is especially difficult in the cases of evidences which are hard to be
evaluated or, in some specific cases, ignored. In Article 69. of the Rome Statute there is no
specific enumeration of evidences that are requested for submission in specific cases, rather
the article is referring to principles of evidence which are fundamental. Because of the high
complexity of the rules of evidence, they are worked with mainly in the Rules of Procedure
and Evidence, in the Rome Statute being included in Article 69, as we will see, “some basic
rules on this important subject”2.

1
Triffterer, 2008, p. 1078.
2
A/CN.4/L.491/Rev.2, (1994).

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Evidence

As established in 1993 draft by the Working Group of the International Law


Commission, the Court is authorized to compel testimony, to require the witnesses to take
oats before testifying, to take juridical notice of commonly known facts, to decide on veracity
and admissibility of illegally obtained evidence, and to exclude witnesses or evidences. 3 From
the historic point of view, the evolution of evidence proceedings of the article did not change
from the initial International Law Commission’s draft Statute, although, in time, the
punishment of false testimony has been added to the Court’s jurisdictions, as well as
regulations in the cases of testimonies of children or persons with impairments.4 In Article 64
of the Statute states that the Trial Chamber has the power to decide on the admissibility or
reliability of the evidences, this being a general provision linked to evidences regulated by
Article 69.

The provisions and regulations of the Rome Statute had been largely interpretative, leaving to
the Preparatory Commission, the Court, non-governmental organizations and states to
cooperate and give understanding to it. Given the large number of case law available, the
Court is giving the reasoning for the interpretation of the provisions of Article 69 through the
positioning of evidences into circumstances and provisions of domestic legislation of the
implicated states. The Preparatory Commission’s Rules of Procedure and Evidence and
Elements of Crimes is without any question a progress through the works of the International
Criminal Court.

Testimony of Witnesses

Following the session of August 1996 certain elements involving witness testimony
had been added. In paragraph 2 there is a clear statement on the preference of in person oral or
written testimonies. Although, differentiating from the most of the ad hoc Tribunals, where
oral testimony has been an important aspect of evidences. Before testifying witnesses are
required to declare that their statements are truthful, nevertheless, in some cases such as for
persons under eighteen or persons “whose judgement has been impaired and who, in the

3
Schabas, 2010, pp. 837-834.
4
Triffterer & Ambos, 2016, pp. 1713-1714.

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opinion of the Chamber, does not understand the nature of solemn undertaking”5 there are
exceptions to the undertaking of the declaration if Chamber considers that that the „person
understands the meaning of the duty to speak the truth”6. For the case of false testimony
Article 70(1)(a) defines prosecutions for which the witness is informed at the incipient phase
of the process, in this phase witnesses are informed about the situation of self-incrimination.

Oral testimony is subjected to exceptions set out in Article 68(2) and in the Rules of
Procedure and Evidence in relation to the protection of witnesses, thus video and audio or
even whiten technology is permitted by the Court to be used. Testimony by theological or
written means is permitted in cases of reasonability such as impossibility for the witness to
attend the Court and to foster “the safety, physical and psychological well-being, dignity and
privacy”7 of the person.

In the ad hoc Tribunals the use of whiten evidences was a rather unpopular form of evidence,
although, in the Nuremberg trials the main evidences used where documentary in nature,
transcripts of testimonies have been used, for example in the Prosecutor v. Germain Katanga
and Mathieu Ngudjolo Chui case (referred further as the Katanga case) a transcript of a
witness` interview has been admitted as evidence.8 Admitted written statements where used in
the ad hoc Tribunals such as transcripts of other trials but as being highly contested method,
the Statute emphasises on the compellability of the witnesses of each party in before of the
Court, witness preparation being prohibited.9

As a significant difference from the ad hoc Tribunals the International Criminal Court is in
regard of the position of the victims as witness in the trial. Victims can participate directly or
troughs a representative to the proceeding and course of the events in the trial. Although, this
method gives an important significance for the civilians, despite the maximization of
reconciliation, presents potential difficulties in the trials.10

5
ICC-PIDS-LT-02-002/13_Eng, (2013), Rule 66(2).
6
Ibidem.
7
ICC-PIDS-LT-02-002/13_Eng, (2013), Rule 67(3).
8
Schabas, 2010, pp. 839-841.
9
Idem, p. 842.
10
Cassese, Antonio & Gaeta, Paola & Jones, John R. W. D. & Kirsch, Philip & Eser, Albin, 2002, pp. 1410 –
1416.

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Submission of Evidences

The relevant evidences can be submitted by the parties respecting the provision on
Article 64, as well the Court can request evidences to the case which are necessary in order to
determine veracity.11 In the case The Prosecutor v. Thomas Lubanga Dyilo ( further referred
as the Lubanga case) the Court exercised its power to request evidence. In the given case the
Court, although an isolated occurrence, has given evidence to the case trough the calling of
own witnesses, Roberto Garreton, former United Nations Special Rapporteur, has been the
expert witness.12 The Trial Chamber motivated this as being “ important that we are assisted
by more than one expert… because it is crucial that we have a thorough understanding of the
general circumstances, historical and otherwise, in which the general event occurred”13.

In the Katanga case and the Article 69 Paragraph 3 had been considered to be interpreted as
not being applicable in the proceedings of the Pre-Trial Chamber. This has been concluded
due to the fact that the Prosecutor and the defence are submitting evidences to the case, the
other admissibility of other evidences necessary in the determination of the case and
reparations are to be considered by the competent Chamber.14

On the opposite spectre of interpretation of the provision in regard of submissions of


evidence, an exemplifying case is The Prosecutor v. Jean-Pierre Bemba Gombo. In this case
the Pre-Trial Chamber has requested submission of further evidences, acknowledging the fact
that in the incipient stage the Chamber has no need to establish the level of the guild of the
prosecuted person.15

Relevance Admissibility and Prejudicial Effect

Article 69(4) is establishing the principles of admissibility for evidences before the
Court. The provisions are the outcome of the Article 19 and Article 20 of the Nuremberg
Charter proposed in Article 44 paragraph 3 of the International Law Commission Draft
Statute of 199416 which provided that “the Court may require to be informed of the nature of

11
Triffterer & Ambos, 2016, p.1715.
12
ICC-01/04-01/06, (2012).
13
ICC-01/04-01/06), (2008).
14
ICC-01/04-01/07-474, (2009).
15
ICC-01/05-01/08-55, (2008).
16
UN Doc. No. 251, (1945).

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any evidence before it is offered so that it may rule on its relevance or admissibility”17. Later
in 1998, the determinations of the admissibility of the evidences where established to be the
duty of the Court in the parameters indicated in the Rules of Procedure and Evidence,
providing flexibility. At the second session of the Preparatory Commission in 1999 the actual
form of the Article 69 Paragraph 4 was created, which give the Court the authority, in
comparison with the previous form of the nature of duty, to asses and determine relevance of
the evidences submitted in accordance with the Article 69 of the Statute.18

A particularly debated and difficult issue when treating the admissibility rules, is the nature of
the evidences of sexual violence, the relevance of consent in the context of war crimes or
crimes against humanity, being a highly debated aspect. In the Lubanga case there is an
important exemplification of the application of the provisions of the Article 69(4) by the Trial
Chamber I, highlighting on the emphasis that the evidences must be relevant to the case and
the determination of the charges against the accused, taking in consideration the “views and
concerns of the participating victims”19, and specifying that prima facie basis is crucial for the
probative value of the evidences as well as the contextual character of the evidences. The Pre-
Trial Chamber stated that in the Katanga case the probate value of evidences is to be taken in
consideration when deciding on the admissibility to the case, therefore when analysing the
evidences, inadmissibility is the result of the lack of the prima facie probative value.20

The ad hoc Tribunals reliability in the admissibility of evidences was a concern on the
Chamber, thus the Statute has no specific determinations of the inadmissibility of certain
types of evidences, although, as we will discuss in the continuation of the analysis the Article
69 paragraph 7 offers regulations on exclusion of evidences, its application has a rather
discretionary nature. Such an example can be consulted in the cases of sexual violence, where
the Court has the approach of treating the character of evidences whiteout the interference of
the reasoning behind the sexual nature of the conducts of the witness or the victim, a
significant difference from the premises of common law.21 This type of evidences, had been
used with the terms of “indirect evidences’ thus using and developing, as well significant
case law resources. “Indirect evidences” as well as anonymous witness testimonies have a
generally less probative value, determining challenges in the corroborative nature of the

17
ICL Draft Statute, (1994).
18
Triffterer & Ambos, 2016, p.1717.
19
ICC-01/04-01/06, (2008).
20
ICC-01/04-01/07, (2008).
21
Schabas, 2010, p. 845.

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evidences.22 The article discussed does not oblige the corroboration of evidences, although the
conclusion of the Court encourages such practices in order to raise the probative values of the
evidences, motivating that “more than one piece of the indirect evidence having low probative
value is required to prove an delegation made”23.

In order to guarantee the respect of human rights in international criminal trials, there are
specific procedures in order to protect the accused`s rights. In the Statute there are principles
which guarantee a fair hearing without limitations and the right to obtain favourable evidence
from the prosecutor. The rules which imply the innocence of the accused until proven guilty,
as in the ad hoc Tribunals, although, there are no specific and established principles of the
evidences needed in order to prove innocence. In these case there has been largely
interpretative grounds, given the civil-law approach of national jurisdiction and international
jurisdiction.

The principle of reasonable doubt puts the judges in the position of proving the guilt of an
actor, in accordance with the limits imposed by law and only if there is no reasonable doubt
about the fact that the accused is guilty of committing the specific incriminating act. Another
one of the rights of the accused which raises important questions in procedures in regard of
evidences, is the right of the accused to make an unsworn statement (oral or written).

In the systems of the ad hoc Tribunals, the accused`s unsworn statement had the same
purpose and value to the evidences as a witness testimony. This provisions where introduced
with the purpose to establish, by the Court and the Prosecutor, on the position of the accused
in regard of specific elements of the case, thus, reducing efforts for the production of
unnecessary evidences. One of the particularities of the International Criminal Court`s Statute
is the fact that the Prosecutor has the value of a public organ, whom is conducting the
investigation and prosecution in the interest of justice, serving as a non-party to the
proceedings.

Privileges on Confidentiality

In the Article 69 paragraph 5 the principles of confidentiality are stated as privileges


which are to be respected and observed leaving the determination of the nature of their
purpose to the Rules of Procedure and Evidence, having as source the inviolability of the

22
Ibidem.
23
ICL-01/05-01/08, (2009).

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professional and discretionary nature of the accused and legal counsellor (lawyer-client
relationship).24 The confidentiality privileges extend to other types of relations such as those
of medical (including psychiatric, psychological and counsellor) nature and those which are
religious in nature.25

As particularities of the provisions of Article 69(7) privacy disclosure can be used as


evidences to the case in the case that, for example the implicated person has voluntary given
26
consent for disclosure to a third party whom testifies. The International Criminal Tribunal
of the former Yugoslavia had been affirming this processes as well as recognising privileged
positions of employees and officials of international organizations27 along with the
recognition of testimonial immunity of war correspondents (if certain types of criteria are
met)28. The confidentiality nature of the relationships are defined as such if the nature of the
relationships is reasonably expected to be of a non-discolour nature and if that aspect is
essential to the given relationship, fostering the objectives of the Statute and the Rules. Form
this defining criteria, the privileges of confidentiality might be extended to the family
members, having in mind the provision on “witness-proofing” in the Lubanga case, we can
say that the selectivity in the witness testimonies are important factors to be taken into
account by the judges.

It has been argued that in the cases of violations of the rights of the accused there are no clear
sanctions. As established there are procedural ways of excluding or non-admitting specific
evidences which have been procured violating rights of the accused, for example, and another
reserved for extreme cases, is to externalize a proceeding for the purpose of finding remedies
to the violations, further to sanction the actors whom are responsible of the violations of the
rights of the accused.

Judicial Notice

The provisions of the Article 69 Paragraph 6 are sourced from the Statute of the
International Military Tribunal of Nuremberg, giving although a broader interpretation trough
the wording used.29 In this particular concern, the ad hoc Tribunals can be exemplified as
using the provision of judicial notice in considerations of the happenings in Rwanda of 1994
24
Triffterer & Ambos, 2016, pp.1718-1719.
25
Idem., p.1719.
26
ICC-PIDS-LT-02-002/13_Eng, (2013), Rule 73(1).
27
IT-95-9-PT, (1999).
28
IT-99-36-AR73.9, (2002).
29
Triffterer & Ambos, 2016, p. 1719.

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and former federative territories of Yugoslavia in 1992.30 As defined “facts of common
knowledge” are notorious materials, “considered to encompass common or universally known
facts, such as general facts of history, generally known geographical facts and the laws of
nature, as well as those facts that are generally known within a tribunal`s territorial
jurisdiction determined as matters not subjected to reasonable dispute”31.

The dispute over the admissibility of the commonly known facts is a particular issue when
having in mind that this kind of evidences face the purpose of generally avoiding time and
resource consuming investigations, thus the judicial notice can be interpreted as a
presumption on the accuracy of the facts presented, although this can be challenged in the
trials. The Prosecutor v. Slobodan Milosević case is eloquent in this matter, as in the given
case the presumption of innocence was a debated matter between the judges of the case. 32 In
the International Criminal Court can request further evidences, even if apparently for the case
parties the evidences will not significantly change the given situation, with the purpose of
establishing a historical factuality of the happenings and provide accurate reparations to the
victims and affected parties.

Medical examinations, as the Rules of the Collection of Evidences establishes, may be


requested by the Pre-Trial Chamber. An important issue raised is regarding the necessity or
lack of concern from the accused. The respect of human rights and the rights of the accused
are infrangible, it has been agreed upon the fact that such medical examinations are to be
necessary in order to establish the ability of that person for a criminal trial, without a
mandatory consent. The Court has the ultimate decision in the ordering of an unconsented
medical examination and its purposes, although there had been discouraging discussions in
the case of the process of medical examinations in order to obtain incriminating evidences.

Mandatory Exclusion of Evidences Rule

The exclusion of evidences to the case is of serious concern in the international


framework of legislative regulations. Given the treaties and declarations which highly
recognise and emphasise on the fundamental human rights and thus the mandatory respect for
them, in the Rome statute of the International Criminal Court there has been included
provisions in order to regulate and ensure the respect for the human rights having as criteria

30
Göran, 2014, pp.1125-1227.
31
IT-95-9-A, (2006).
32
IT-02-54-AR73.4, (2003).

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the source nature of the evidences.33 The formulation of “internationally recognised human
rights” emphasises, as well on the previous case law, in which illegally obtained evidences
had been subjected to the exclusionary rule, being demonstrated as originating from violations
of one`s privacy or use of torture or other cruel, inhuman and degrading treatments.34

The issues in regard of the origins of evidences had been treated in the Lubanga case, as
evidences to the case had been obtained by illegal means upon the national law of the state of
Democratic Republic of Congo and the international norms which recognise the right to
privacy as inviolable.35 The accused home had been searched without the his presence or
consent by national authorities in the presence of an investigator of the International Criminal
Court. Given this, Thomas Lubanga has invoked the exclusionary rule of the Rome Statute
article 69 (7), the Pre-Trial chamber concluding that the evidences produced where not
originated from a serious violation of internationally recognized fundamental human rights or
norms.36 The decision for the admissibility of evidences has been motivated as the sources
and means not being of nature to degrade or distort the truthfulness or reliability of the
evidences, as for example in the cases of torture or other cruel, inhumane and degrading
treatments; nor the evidences had been obtained by means of serious violations which would
have the possibility to put in jeopardy the integrity of the proceedings.37

In the Katanga case the Pre-Trial Chamber had concluded that the exclusionary rule would
not be applied, thus evidences where admitted by considering the claims as not serious human
rights violations.38 The defence in the given case had triggered the exclusionary rule
motivating the lack of counsel, thus the presence of a lawyer in the hearing of the incipient
phase of the case.39

Collection of evidence for the purpose to establish reparations to the victims has been an
intense subject trough the Paris Seminar and in the Preparatory Commission due to the fact
that admissibility of evidence in the development of the criminal proceeding and in the
proceeding of reparations. Although this “standard of proof” has been discussed intensely
and there have been multiple proposals of procedures, the Court takes into consideration
provisions of Article 66 when establishing reparations.

33
Triffterer & Ambos, 2016, pp.1744-17478.
34
Schabas, 2010, pp.848-849.
35
ICC-01/04-01/06, (2007).
36
Ibidem.
37
Ibidem.
38
ICC-01/04-01/07, ( 2008).
39
Ibidem.

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Application of National Law

The Paragraph 8 of the Article 69 of the Rome Statute is regulating the national law in
the issues of admissibility of evidences within the International Criminal Court. The main
issues which are being addressed concerns the nature of the evidences obtained by national
authorities in circumstances which would clarify them as illegally obtained. The Court takes
into account the factuality of national legislations. The Court should give effect to evidences
obtained in the standards of international legislation and to foster international cooperation,
this has been contested as being an interference to the authority and sovereignty of states. 40 In
the Lubanga case, the Court has not considered that the admissibility of evidences regarded by
national legislation as being obtained by illegal means should be challenged.41

One of the challenges of encountered in Rome, due to various aspects, was the rules of
procedure and evidence in the practices and concepts of national criminal justice systems. As
the provisions remained largely on general level, the Preparatory Commission negotiations
are to find common grounds in the different systems. Given this, in many occasions there
have been significant cultural differences between regions, mainly in cases of evidence in
sexual offence cases and the incrimination of family members.42

Conclusions

Differentiating from the ad hoc Tribunals` procedures of evidences the Rome Statute
of the International Criminal Court Article 69 includes broad and interpretative provisions in
regard evidences. Admissibility of evidences is a responsibility of the competent Chamber
and is detailed in the Rules, Article 69 giving provisions rather, on the free assessment of
evidence. This gives flexibility to the procedures which change in accordance to external and
internal factors. As we could observe in the cases presented trough the text, flexibility in
admission of evidences is crucial for the proceedings of the case. Given different
circumstances and factors of each case, interpretative value to the admission of evidence is
mandatory. Aldo, in all the cases, the arability of relevant evidences is large numbers is
recommended in order to serve as a better understanding of the issues and in establishing
reparations for the victim, thus fulfilling the interests of justice.

40
Triffterer & Ambos, 2016, pp. 1749-1750.
41
ICC-01/04-01/06, (2008).
42
Lee, 2001, pp.50-51.

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Bibliography:

1. A/CN.4/L.491/Rev.2, (1994);
2. ICC-PIDS-LT-02-002/13_Eng, (2013);
3. ICL Draft Statute, (1994);
4. Sluiter, Göran & Friman, Håkan & Linton, Suzannah & Vasiliev, Sergey & Zappalà,
Salvatore, 2001, International Criminal Procedure: Principles and Rules, Oxford:
Oxford University Press, pp.1125-1227;
5. Triffterer, Otto & Ambos, Kal, 2016, The Rome Statute of the International Criminal
Court: A Commentary, 3rd ed., München: C.H. Beck, pp. 1712 – 1750;
6. UN Doc. No. 251, (1945);
7. Schabas, William A., 2010, The International Criminal Court –A Commentary on the
Rome Statute, Oxford: Oxford University Press, pp. 836 – 851;
8. Lee, Roy S., 2001, The International Criminal Court: Elements of Crimes and Rules
of Procedure and Evidence, New York:Transnational Publishers, pp. 424 - 562;
9. Cassese, Antonio & Gaeta, Paola & Jones, John R. W. D. & Kirsch, Philip & Eser,
Albin, 2002, The Rome Statute for an International Criminal Court: A Commentary,
Oxford: Oxford University Press, pp. 1319 - 1495;
10. ICC-01/05-01/08-55, (2008);
11. IT-02-54-AR73.4, (2003);
12. IT-99-36-AR73.9, (2009);
13. IT-95-9-A, (2006);
14. IT-95-9-PT, (1999);
15. ICC-01/04-01/06, (2008);
16. ICC-01/04-01/06, (2008);
17. ICC-01/04-01/07, (2008);
18. ICC-01/04-01/07-474, (2009).

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Annexes:

Article 69 Evidence of the Rome Statute of the International Criminal Court

1. Before testifying, each witness shall, in accordance with the Rules of Procedure

and Evidence, give an undertaking as to the truthfulness of the evidence to be

given by that witness.

2. The testimony of a witness at trial shall be given in person, except to the extent

provided by the measures set forth in article 68 or in the Rules of Procedure and

Evidence. The Court may also permit the giving of viva voce (oral) or recorded

testimony of a witness by means of video or audio technology, as well as the

introduction of documents or written transcripts, subject to this Statute and in

accordance with the Rules of Procedure and Evidence. These measures shall not be

prejudicial to or inconsistent with the rights of the accused.

3. The parties may submit evidence relevant to the case, in accordance with article

64. The Court shall have the authority to request the submission of all evidence

that it considers necessary for the determination of the truth.

4. The Court may rule on the relevance or admissibility of any evidence, taking into

account, inter alia, the probative value of the evidence and any prejudice that such

evidence may cause to a fair trial or to a fair evaluation of the testimony of a

witness, in accordance with the Rules of Procedure and Evidence.

5. The Court shall respect and observe privileges on confidentiality as provided for in

the Rules of Procedure and Evidence.

6. The Court shall not require proof of facts of common knowledge but may take

judicial notice of them.

7. Evidence obtained by means of a violation of this Statute or internationally

recognized human rights shall not be admissible if:

(a) The violation casts substantial doubt on the reliability of the evidence; or

(b) The admission of the evidence would be antithetical to and would

seriously damage the integrity of the proceedings.

8. When deciding on the relevance or admissibility of evidence collected by a State,

the Court shall not rule on the application of the State's national law.

12