Defense Issues at the International Criminal Court

• Publication year: 2019
• Citation: Vol. 47 No. 3

DEFENSE ISSUES AT THE INTERNATIONAL CRIMINAL COURT

Megan A. Fairlie^*

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I am very grateful to Professor Diane Amann for the invitation to contribute to this symposium and, in particular, for being asked to focus on defense-related issues at the International Criminal Court (ICC or Court). Having heard from Peter Robinson regarding some of the things that the defense can do to help the Court, I hope to complement Peter's important contribution by highlighting some of the things that external observers—particularly those of us who research and write on international criminal justice—can do to assist ICC accused. Broadly speaking, I would like to highlight the compelling need for us to better monitor and critique ICC practice, especially procedural and evidentiary decision-making.

For this external contribution to benefit the defense, ICC observers must commit to unwavering fair trial expectations. Ensuring a just process for ICC suspects and accused persons needs to become a regular and prominent part of our discourse, and every bit as much the lens through which we view the ICC as other concerns, including the anti-impunity objective and the rights of victims. It also means that we need to become comparativists, as it is only through understanding the Court's "hybrid" framework that we can properly vet whether ICC practice is fair and just. This is critical because the Court's Statute and Rules tend not to dictate specific evidentiary and procedural choices, a fact that can lead to importing domestic mechanisms without careful thought as to whether their insertion into the Court's unique framework is fair to the accused. As I hope to convince you, this flexibility makes consistent external vetting vital.

Because the procedural and evidentiary decision-making that requires this more rigorous review sometimes relies on the principle of objectivity—the statutory requirement that the Court's prosecutor "establish the truth" by investigating incriminating and exonerating circumstances equally—I will first discuss this under-researched (and, in my view, unfulfilled) aspect of the ICC's procedural law. I hope you will then add this analysis to the lens through which you view Court practice. I will then provide a few examples of recent (and, again, under-researched) procedural and evidentiary choices that appear to overlook the import of predominantly adversarial trial model the Court has adopted to date in a way that undermines the fair trial rights of ICC accused. I hope that by briefly highlighting these limited examples you too

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will see the urgent need for the international community to keep a close watch on developing ICC practice.

As has been discussed at length elsewhere, the ICC's procedural law is neither wholly adversarial nor continental, but instead a mix of the two.¹ In fact, the Court's Statute affords sufficient flexibility for trials to be either adversarial in orientation or rather more aligned with the continental (single-case) model, in which the judges, rather than the parties, lead the taking of evidence.² Nevertheless, and as will be important for later discussion, all the Court's trials to date have adhered to the adversarial model, with party-driven evidence collection and presentation, and with a distinct prosecution phase that is formally closed before hearing from the defense.³ By contrast, the aforementioned principle of objectivity is decidedly continental in nature.

The principle of objectivity is set out in Article 54(1)(a) of the Rome Statute, a provision that obliges the Court's Prosecutor to investigate incriminating and exonerating circumstances equally.⁴ This continental addition to the ICC Statute was initially lauded by many as a vast improvement over the common law-esque prosecutor at the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and its sister court, the International Criminal Tribunal for Rwanda.⁵ As explained by Judge May before the Court became operational "the prosecutor of the ICC will have duties of 'truth-seeking' beyond the adversarial framework, and must conduct investigations to find both incriminating and exonerating evidence. (Whereas the prosecutor of the ad hoc tribunals has been under a duty to disclose, rather than seek such evi-dence)."⁶ As one continental delegate to the Rome Conference later explained to me, the neutral, truth-seeking investigations dictated by the Rome Statute—if properly applied—ought to yield only successful prosecutions.

By this benchmark, the fact that the ICC has thus far acquitted as many persons tried for core crimes as it has convicted suggests that objectivity in

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practice is falling short of the mark.⁷ More convincingly, this fact has been affirmatively recognized by a number of the Court's judges. Since the Court's earliest days, judicial opinions have catalogued numerous objectivity shortcomings, including the prosecution's intentional failure to collect known exculpatory evidence,⁸ the use of interview techniques that were "utterly inappropriate" in light of the obligation to seek exonerating evidence,⁹ and a "negligent attitude towards verifying the trustworthiness of its evidence."¹⁰ Similarly, defense counsel have reported a consistent failure on the part of the prosecution to corroborate its witnesses' accounts,¹¹ leaving defense attorneys to pick up this slack.¹²

This apparent abdication of the prosecution's intended role as objective and impartial truth-seeker has very real consequences for the defense. In the best case scenario, the defense will be required to use its more limited investigatory resources to fill the void left by the prosecution's neglected 54(1)(a) obligations. More problematically, in cases wherein governments hinder defense investigations in situ,¹³ evidentiary materials and witness statements beneficial to an ICC accused may never be accessed at all. In addition, although the principle of objectivity has yet to materialize in practice, the manner in which it is meant to enhance the fairness of ICC proceedings may be used (and, as I will explain, has been used) to justify the denial of other procedural

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safeguards. In other words, a failure to adhere to the principle of objectivity may ultimately disadvantage the defense multiple times over.

Despite these important consequences, the prosecution's non-compliance with 54(1)(a) has thus far generated insufficient external attention. Perhaps this is because the idea of an objective prosecutorial investigation is, at least for common law lawyers, somewhat akin to a unicorn—so fantastical a notion that its failure to exist is not worthy of remark. Whatever the reason, this relative silence harms both the Court and the defense. Without a robust call for the prosecution to take its objectivity obligation seriously, it likely will not. And, without clear and cogent critiques on the topic, we can likewise expect for judicial decisions to continue to cite to the provision as a safeguard that makes other protections unnecessary. So, one of the opportunities for renewal called for by this conference lies in an affirmative decision to call attention to this issue: to incorporate it into our discourse, to read and cite to what defense attorneys are saying about this prosecutorial failure, and to make sure to include the defense in the brainstorming required to effectuate meaningful change.

Another critical issue that has been flagged by several of the Court's judges, but has thus far garnered almost no scholarly attention, is the recent trend amongst ICC Trial Chambers to permit the submission of "evidence" in the absence of a contemporaneous ruling on its admissibility.¹⁴ This submission in lieu of admission approach hinges on the language of Article 69(4), which provides that a Chamber "may rule on the relevance or admissibility of any evidence," and was first endorsed by the ICC Appeals Chamber in 2011.¹⁵ More recently, a majority of the Appeals Chamber again addressed the matter, confirming that Trial Chambers may refrain from ruling on admissibility entirely and, instead, simply consider the relevance and probative value of submitted material "when deciding on the guilt or innocence of the accused."¹⁶

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The problems created by importing this continental evidentiary approach into the ICC's present...