College of William & Mary Law SchoolWilliam & Mary Law School Scholarship Repository

Faculty Publications Faculty and Deans

2011

EvidenceNancy Amoury CombsWilliam & Mary Law School, ncombs@wm.edu

Copyright c 2011 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.https://scholarship.law.wm.edu/facpubs

Repository CitationCombs, Nancy Amoury, "Evidence" (2011). Faculty Publications. 1178.https://scholarship.law.wm.edu/facpubs/1178

I I ~

I

I

Edited by William A. Schabas and Nadia Bernaz

;1 Routledge Ill\. Taylor & Francis Group

LONDON AND NEW YORK

First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2011 editorial matter and selection: William A. Schabas and Nadia Bernaz, individual chapters: the contributors.

Typeset in Bembo by Glyph International Ltd. Printed and bound in Great Britain by CPI Antony Rowe, Chippenham, Wiltshire

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data Routledge handbook of international criminal law I edited by William Schabas and Nadia Bernaz.

p.cm. ISBN 978-0-415-55203-5 (hbk)- ISBN 978-0-203-83689-7 (ebk) 1. International criminal courts. 2. International offenses. I. Schabas, William, A. 1950- II. Bernaz, Nadia. Ill. Title: Handbook of international criminal law. KZ6304.R68 2011 345-dc22

ISBN13: 978-0-415-55203-5 (hbk) ISBN13: 978-0-203-83689-7 ( ebk)

2010022449

20

Evidence

Nancy Amoury Combs

Prosecuting perpetrators of mass atrocities in international tribunals gives rise to unique eviden­

tiary challenges. The crimes prosecuted in these tribunals feature large-scale violence that

frequently takes place over protracted periods of time in locations far from the courtrooms in which the crimes are ultimately prosecuted. Credible evidence can be hard to come by because

recalcitrant states erect obstacles that impede prosecutors or defense counsel seeking to investigate

the crimes, because witnesses fear retaliation for their testimony, and because considerable time

typically elapses between the crimes and the trials. Given the unique nature of international

criminal trials and the unique challenges they pose, it ·should come as no surprise that a unique

system has developed to govern the treatment of evidence at the international tribunals. Although

many discussions of international criminal evidence focus primarily on admissibility and conse­

quently observe that the evidentiary schemes of international criminal tribunals follow the civil

law model, evidentiary issues at the international tribunals cover far broader ground and include both civil law· and common law features. Space constraints prevent me from presenting a thor­

ough discussion of international criminal evidence as a whole, but I will endeavor here to touch

upon the most prominent evidentiary issues that arise during the pre-trial, trial and post-trial

phases of international criminal proceedings.

Pre-trial evidentiary issues

The primary evidentiary issues that arise during a case's pre-trial phase concern the collection of

evidence and the disclosure of evidence. As for the former, international criminal tribunals­

like conunon law domestic courts-bestow on each party the obligation to identifY witnesses and collect the evidence that the parties will later present at trial. Some commentators have

noted the structural advantages that the prosecution enjoy over the defense in the collection of

evidence. These advantages stem primarily from the fact that the prosecution is one of the main

organs of each of the international criminal tribunals; consequently, the Tribunals' statutes

bestow on the prosecution distinct powers to collect evidence, and members of the office of the

prosecutor enjoy privileges and immunities that facilitate their on-site investigations.' In certain

tribunals, defense counsel are also at a comparative disadvantage when it comes to their ability

to gain access to crime sites and locate witnesses. The International Criminal Tribunal for

323

Nancy Amoury Combs

Rwanda (ICTR) defense counsel, for instance, have at various times accused the government of

Rwanda of impeding investigations by harassing and intimidating defense witnesses to prevent them from testitying 2 [n other cases, defense counsel have lacked sufficient funds to carry out

adequate investigations. 3 Although the Trial Chambers cannot remedy insufficient funding, they have acknowledged the difficulties that have sometimes confronted parties seeking access to

evidence and they have committed themselves to providing 'every practicable facility' that they can provide 'when faced with a request by a party for assistance in presenting its case."

International criminal tribunals require the disclosure of much of the evidence that will

eventually be presented at trial. As a comparative matter, the International Criminal Tribunal

for the former Yugoslavaia ([CTY) and [CTR rules on pre-trial disclosure steer a rniddle course

between the broad and narrow disclosure frameworks prevailing in civil law and common law

jurisdictions, respectively. [n the United States, for instance, the parties are required to disclose

little or no information to the judge or jury prior to triaP because the judge or jury has little or no reason to possess that information prior to trial. The same is not true in civil law jurisdictions,

where judges take primary control over the questioning. For such judicial questioning to be

effective, judges must have substantial knowledge about the case. To that end, investigating

authorities in civil law countries record all the documents pertaining to the pre-trial investiga­

tion in a dossier6 and make that dossier available to the presiding judge/ among others."

Although ICTY and ICTR prosecutors are not obliged to create a dossier containing all of the

documents relevant to the case, they are obliged to disclose a substantial quantity of supporting information. For instance, the [CTY, [CTR and Special Court for Sierra Leone (SCSL) prosecu­

tors must disclose, among other things, a witness list which summarizes each witness's testimony; an exhibits list;9 all material which accompanied the indictment when confirmation was sought;

and copies of all statements of witnesses that the prosecution intends to call at trial. 10 The defense

has similar disclosure obligations and consequently must provide the prosecution with a witness list, a summary of witness testimony, and an exhibits list. II Additionally, the defense must notity

the prosecution if it intends to raise certain defenses, such as alibi or lack of mental responsibility,

and it must provide certain information regarding the defenses. 12 International Crirninal Court

([CC) parties have similar, though slightly more complex, disclosure requirements because some

disclosure obligations come into play before the confirmation hearing, wIllie others arise later, before trial. 13 Although the disclosure of the above information is typically expected to take place

prior to trial, concerns about witness safety have recently led th e ICTR, SCSL and the ICC to permit 'rolling disclosure; in which witnesses' identities are disclosed after the trial has com­

menced but well before the witnesses' actual testimony. 14

Tribunal prosecutors are also obliged to disclose exculpatory material, typically defined as 'material which in the actual knowledge of the Prosecutor may suggest the innocence or miti­gate the guilt of the accused or affect the credibility of Prosecution evidence.'1 5 Moreover, ICC

prosecutors are obligated not only to disclose exculpatory evidence but also to search for it. 16

The defense may also request exculpatory materials from prosecutors, but before such a request will be granted, the defense must make a prima facie showing that the materials are apt to be relevant and exculpatory and that they are in the custody of the Prosecution. 17 The responsibility

of determining whether material is exculpatory rests in the first instance with the prosecution,18

and the prosecution must exercise this responsibility in good faith. 19 [t is this good-faith

obligation that is so frequently in question at the Tribunals because, although the legal standards

governing the disclosure of exculpatory evidence are relatively clear-cut, defense counsel frequently claim prosecutorial violations of the standard. 20 As a consequence, commentators have suggested that Tribunal judges take a more active role in monitoring disclosure and that they

apply heavy penalties when disclosure obligations are violated. 21

324

Evidence

Evidentiary issues arising during trial

Most evidentiary issues occur during trial. This section will consequently discuss (1) the way in which evidence is presented to the Tribunals; (2) the admissibility standards governing evidence in international criminal trials; and (3) the exclusionary rules that prevent evidence from being considered.

How is evidence presented in international criminal proceedings?

The presentation of evidence at the ICTY, ICTR and SCSL follows an adversarial model. That is , international criminal trials in those bodies feature two cases-a prosecution case and a defense case-and each party presents its own evidence at trial . Rule 85 of both the ICTY and ICTR Rules of Procedure and Evidence (RPE) reflects this model and provides that evidence will be presented in the following sequence: evidence for the prosecution, evidence for the defense, prosecution evidence in rebuttal, defense evidence in rejoinder, evidence ordered by the Trial Chamber and finally any relevant information to assist the Trial Chambers in sentenc­ing.22 Furthermore, each party must be permitted to examine and re-examine the witnesses they call and to cross-examine the opposing party's witnesses. Judges, however, are permitted to ask questions of witnesses at any time, 23 and the Chambers also have the discretion to vary the order of the presentation of evidence if it is in the interests of justice to do so. In Rukundo, for instance, an ICTR Trial Chamber called as its own witness a witness who had originally testified for the Prosecution but who had subsequently recanted his testimony. Rule 85 typically requires Trial Chambers that wish to call witnesses to do so after the close of both the prosecution and defense cases. However, in light of its interest in determining the validity of these accusations as well as the seriousness of retracting sworn testimony, the Trial Chamber decided to depart from the normal sequence of evidence presentation in order to recall the witness during the Prosecution's case.24

Sequencing issues also arise when Trial Chambers receive motions to present rebuttal evi­dence or to reopen a case. As a general rule, the prosecution must present evidence pertaining to the defendant's guilt as part of its case in chief.25 Rule 85 does anticipate that the prosecution may seek to present evidence in rebuttal, as just noted, but such evidence must be 'limited to matters that arise directly and specifically out of defense evidence.'26 Consequently, Trial Chambers have proven reluctant to permit evidence in rebuttal where that evidence is probative of the accused's guilt or is designed to fill some gap that was reasonably foreseeable to the prosecution.27 If the evidence sought to be presented does not meet the standards for rebuttal evidence, then a party may seek to reopen its case,28 but such a request is not apt to be granted unless the evidence sought to be presented is 'fresh evidence.' Fresh evidence has been defined not merely as 'evi­dence that was not in fact in the possession of the prosecution at the time of the conclusion of its case, but as evidence by which the exercise of all reasonable diligence could not have been obtained by the prosecution at that time.'29 If a Trial Chamber does conclude that the evidence sought to be presented is ' fresh,' it must consider a number of additional factors in determining whether to exercise its discretion to reopen the case. These include the stage of the trial at which the evidence is sought to be adduced, the delay likely to be caused by reopening the case,30 and the effect of presenting new evidence against one accused in a multi-accused case.3\

The ICC employs a more flexible approach than the ad hoc Tribunals when it comes to the sequencing of evidence presentation at trial. In particular, Article 64(8)(b) of the Rome Statute gives the Presiding Judge of the Trial Chamber complete discretion over the procedural model to be followed at trial ]2 That is, the judge may follow the ICTY and ICTR and adopt an adversarial

325

Nancy Amoury Combs

model of evidence presentation, as just described, but the judge also has the discretion to adopt a civil law mode of evidence presentation in which the judge takes the primary role in questioning witnesses.33 Thus far, th e emerging prac tice of the ICC is veering toward an adversarial evidence presentation at trial. In the ICC's first trial , for instance, the Trial C hamber issued instructions that permitted the party calling the witness to ask the first questions of the witness, with this questioning followed by questi oning fro m the party not caJling the witness]4

What evidence is admissible?

General admissibility rules

The international tribunals have adopted lenient and fl exible admissibili ty rules. Pursuant to Rule 89(C), an ICTY Trial C hamber 'may admit any relevant evidence w hich it deems to have probative value.' The other ad hoc Tribunals and the ICC follow a similarly flexible approach.35 The R ome Statute authorizes IC C Trial Chambers to ' rule on the relevance or adm.issibili ty of any evidence, tak.ing 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.'36 The ICC's Rules of Evidence and Procedure maintain this flexibility by authorizing the Trial C hambers to 'assess freely all evidence submitted in order to determine its relevance or admissibility.' 37

Although the admissibility standard in use at the international tribunals requires that evidence be both relevant and probative, the threshold for relevance and probity is rather low. As the Musema Trial C hamber put it, th e standard of admissibili ty embodied in Rule 89(C) requires the evidence merely to have 'some relevance and some proba tive value.'38 As I will discuss below, hearsay evidence is admissible at the international tribunals, and , as a general matter, the Trial C hambers have exhibited 'a fairly uniform tendency ... towards admitting evidence in the fi rst place leaving its weight to be assessed when all the evidence is being considered by the Tr ial C hamber in reaching its j udgement.'39 However, one controversial question has pertained to the role of reliability in the admissibili ty decision. For instance, some Trial and Appeals C hambers have concluded that the reliabili ty of a piece of evidence is relevant to its admissibil.i ty. Under this approach, then, evidence that is lack.ing in rel.iability should be excluded as without probative value under Rule 89(C)40 The alternative approach is to admit the evidence bu t to consider its rel.iabili ty when determining its weight41 T his approach has been endorsed by several commen­ta tors, who point out that it is 'consistent with the free system of evidence that the Tribunal has adopted.'42 As for the ICC, a proposal was introdu ced during one of the Preparatory Commissions to include reliabili ty as a fac tor to be freely assessed by a C hamber in determining releva nce or admissibili ty. However, because no consensus was reached on this qu esti on, the ICC evidentiary rules do not address it43

The ad missi bility of specific categories of evidence

Because an international criminal defendant has the right to 'examine, or have examined, the wi tnesses against him and to obtain the attendance and examination of witnesses on his behal f,'44 the international tribunals generally favor oral testimony. Rule 90(A) of the ICTY 's and the ICTR 's initial Rules of Procedure provided that 'witnesses shall, in principle, be heard di rectl y by the C hambers.' The R ome Statute also expresses a preference for Live evidence th rough Arti cle 69(2), which states that ' th e testimony of a witness at trial shall be given in person.' Oral presentation of evidence has been seen as providing the best opportuni ty for a party to

326

Evidence

challenge the evidence of an opposing party and for the Trial Chambers to evaluate the credibil­ity of the presented evidence.45 These benefits notwithstanding, exceptions to the principle of orality have always existed, and in recent years some tribunals have chosen to temper their preference for orality as a means of expediting trials.

The Tribunals' above-mentioned willingness to admit hearsay evidence constitutes one long­standing exception to the principle of orality. A hearsay statement is defined as a 'statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'46 Although the admission of hearsay statements contravenes both the principle of orality and the right to confront witnesses upon which that principle is based, international tribunals have refused to exclude hearsay statements categorically. Early ICTY decisions held that there existed 'no blanket prohibition on the admission of hearsay evidence,' but that its admission depended on its relevance, probative value, and reliabilityY Trial Chambers thus have considerable discretion in determining the admissibility of specific hearsay statements; as mentioned above, some Trial Chambers consider the reliability of the hearsay statement in determining its admissibility while other Trial Chambers are inclined to admit all hearsay statements but to consider their reliability when determining the weight to afford them.48

Other exceptions to the principle of orality are of more recent vintage and stem from the Tribunals' understandable desire to expedite trial proceedings. As noted above, the original ver­sion of the ICTY's Rule 90(A) expressed the Tribunal's preference for oral testimony. However, later amendments to the ICTY rules eliminated that preference49 and created mechanisms to introduce written evidence in lieu of oral witness testimony. For instance, although all of the Tribunals provide for the admission of depositions, the ICTY amended its rule to lower the burden on those seeking to introduce deposition testimony. 50 The admission of deposition testi­mony does not compromise the confrontation rights of the accused in the same way that the admission of witness statements does because, during a deposition, the defense has the opportu­nity to cross-examine the witness. No such cross-examination is envisaged for written state­ments that are tendered in lieu of oral testimony, but Rule 92bis nonetheless permits ICTY, ICTR and SCSL Trial Chambers to admit such statements so long as they go to proof of a matter other than the acts and conduct of the accused as charged in the indictment. The version of Rule 92bis in effect at the ICTY and ICTR delineates a series off actors that Trial Chambers should consider in determining whether to admit the statements,51 and it requires that certain formalities be observed in order to enhance the reliability of the statements. 52 Because Rule 92bis does not permit the introduction of written statements to prove the acts and conduct of the accused, the rule has been useful primarily for expediting the presentation of'crirne-base' evidence.53 Moreover, some commentators have noted that because rule 92bis does not permit the introduction of written statements to prove the acts and conduct of the accused, the rule is a 'mandatory exclusionary rule' that constitutes 'a significant departure from the initial flexible nature of the ICTY's law of evidence.'54

The ICC takes a more restrictive approach to the admission of documentary evidence. Pursuant to Rule 68 of the ICC's RPE, documentary evidence of a witness may be admitted only when both parties have had the opportunity to question the witness during the taking of testimony or the witness is available to be cross-examined at trial.

What evidence is excluded?

Although the international tribunals do utilize liberal admissibility standards, they are nonethe­less permitted, and in some cases required, to exclude certain evidence. ICTY Trial Chambers, for instance, are authorized under Rule 89(D) to exclude evidence if its probative value is

327

Nancy Amoury Combs

substantially outweighed by the need to ensure a fair trial. T he Rome Statute instructs ICC Trial Chambers similarly, not with a specific exclusionary rule, but by inserting fair trial consid­erations into the Trial Chamber's decision on admissibility. Thus, Article 69(4) of the Rome Statute requires Trial Chambers that are considering the admissibility of a piece of evidence to take account of ' 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.' The ICTR does not have a similar rule, and this omission arguably has affected the Trial Chambers' recourse to the most prominent mandatory exclusion that is included in the rules of all of the Tribunals.

That mandatory exclusion, included at Rule 95 of the ICTY's and ICTR's RPE, requires Trial Chambers to exclude evidence if 'its admission is antithetical to, and would seriously damage, the integrity of the proceedings' or if it has been 'obtained by methods which cast sub­stantial doubt' on the reliability of the evidence.55 ICTYTrial Chambers have made little use of this provision, preferring instead to exclude evidence pursuant to Rule 89(D) , discussed above.56

By contrast, ICTR Trial Chambers, having no Rule 89(D) at their disposal, have made greater use of the mandatory exclusion appearing in Rule 95. Of course, even at the ICTR, 'Rule 95 does not require automatic exclusion of all unlawfully obtained evidence.'57 As a consequence, ICTR Trial Chambers have refused to exclude witness testimony when the con­temporaneous notes of the witness's interview were not preserved;58 they have refused to exclude a statement taken one week after the accused's arrest, when he had not yet been taken before a judge,59 and they have refused to exclude a document seized during an illegal arrest, unless there is a specific showing that the document was not reliable or that the admission of the document would seriously damage the integrity of the proceedings.60 By contrast, evidence will be excluded if the integrity of the proceedings would otherwise be seriously damaged.61 Consequently, ICTR Trial Chambers will exclude statements taken in violation of the defendant's right to the assist­ance of counsel,62 statements taken without informing the accused of the charges against him ,63 and statements taken in violation of a witness protection order.64

The analogous ICC rule appears to require that a higher standard be met before evidence will

be excluded. In particular, to exclude evidence under Rome Statute Article 69(7), the Trial Chamber must find that the evidence was both 'obtained by means of a violation of this Statute or internationally recognized human rights' and that 'the violation casts substantial doubt on the reliability of the evidence' or that the 'admission of the evidence would be antithetica.l to and would seriously damage the integrity of the proceedings.' Zahar and Sluiter find fault with this formulation, asking rhetorically: 'Does admission of evidence obtained in violation of human rights not by definition damage the integrity of the proceedings?'65 These conunentators go on to opine that an 'interpretation of Article 69(7) , according to which not every human rights violation damages the integrity of the proceedings, amounts to a departure from the original purpose of Rule 95 of the rCTY and ICTR RPE, and also makes a mockery of human rights law as an indivisible set of minimum legal standards.'66

Post-trial evidentiary issues - weighing evidence

As noted, international tribunals boast liberal admissibility rules that result in the admission of a great deal of evidence, much of which would be excluded in common law criminal trials. However, the fact that Trial Chambers admit a great deal of evidence does not tell us anything about how they weigh the evidence that they admit. The ICTR Appeals Chamber warned that it is 'neither possible nor proper to draw up an exhaustive list of criteria for the assessment of evidence, given the specific circumstances of each case and the duty of the judge to rule on each case in an impartial and independent manner,'67 but general principles regarding the weight

328

Evidence

accorded to certain classes of evidence can be discerned.68 It goes almost without saying that

hearsay evidence is afforded less weight than the testimony of a witness who has given that tes­timony under oath and has been cross-examined.69 Moreover, in keeping with their adherence

to the principle of orality, Trial C hambers have also held live testimony to be weightier than video link testimony.70 Live testimony not only better respects the accused's right to confronta­

tion but also it affords the Trial Chamber the best opportunity to evaluate the demeanor and

credibility of the witness . Video link testimony, however, has been held to be weightier than

testimony given by deposition.71 In determining what weight is appropriate for documentary

evidence, Trial Chambers consider its authenticity as well as its source or authorship. In particu­

lar, in determining the authenticity of a document, a Trial Chamber will consider its form, con­

tents and the purported use of the document, among other factors. 72

Conclusion

International criminal evidence rules constitute a unique amalgam.The Tribunals' basic approach

to evidence derives from civil law systems, but that civil law approach must be utilized in trial

proceedings that are primarily common law in character. Not surprisingly, this blending creates

certain tensions, as do recent efforts to speed up trial proceedings, which can be seen as com­

promising certain fair trial rights. Indeed, safeguarding the accused's right to an expeditious trial

while simultaneously protecting his or her other fair trial rights stands as one of international

criminal law's most pressing challenges .

Notes

A. Zahar and G. Slui ter, Irlternational Criminal Law, Oxford: Oxford University Press, 2008, pp. 364-5. 2 See, e.g. Simba (ICTR-01-76-T),Judgement and Sentence, 13 December 2005, paras 41-3; Bagosora

et al. (ICTR-98-41-T) , Defense Motion Concerning Alleged Witness Intimidation, 28 December 2004, para. 1; see also K. Ambos, 'International Criminal Procedure: "Adversarial," " Inquisitorial" or Mixed: 3 Intematiollal Criminal Law R eview 1, 2003, 36; F. Harhoff, 'The Role of the Parties Before International Criminal Courts', in Fischer et al. (eds), Intemational and National Prosecu tion of Crill1es IInder International Law, Berlin: Berlin Verlag Arno Spitz, 2001, pp. 655--6; S. Kay and B. Swart, 'The Role of the Defense', in A. Cassese et al. (eds) , II Tile Rome Statute of the International Criminal Court, Oxford: Oxford University Press, 2002, p. 1424.

3 See S. Kendall and M. Staggs, u.c. Berkeley War Crimes Studies Center, From Mandate to Legacy: The Special COllrt for Sierra Leone as a Model for 'Hybrid Justice:' Interim Report 011 tile Special COllrt for Sierra Leone 14-15 (April 2005) (arguing that SCSL defense counsel lack sufficient funding to conduct thorough investigations). Moreover, the woefully insufficient funds provided to early defense counsel at the Special Panels in East Timor substantially impeded the ability of counsel to investigate. Defense counsel called not a single defense witness to testify in the first 14 Special Panels trials, not even in the massive Las Palos case, in which 10 defendants were prosecuted for crimes against humanity. D. Cohen, 'Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future?' in Asia Pacific Issues No. 61, at 5 (East-West Center 2002) . Special Panels defense counsel complained that they lacked both cars and the time to travel to the districts to interview potential witnesses. In addition, they lacked resources to pro­vide witnesses with transportation to the court in Dili and to pay for their food and lodging while there. Judicial System Monitoring Programme, TIle General Prosecutor v.Joni Marques and 9 Otllers (The Las Palos Case): A JSMP Trial Report, §3.2.2.1 (March 2002).

4 Tadic (IT-94-1-A),Judgement, 15 July 1999, para. 52. 5 In some states, prosecutors are required only to disclose exculpatory evidence and statements of the

defendant in their possession. See C. Bradley, 'United States', in C. M. Bradley (ed.), Criminal Procedllre: A Worldwide Study, Durham, NC: Carolina Academic Press, 1999, pp. 416-17. In recent years, American jurisdictions have begun granting criminal defendants greater discovery rights, see W R . LaFave et ai., Criminal Procedure, St. Paul, MN:West, 4th edn, 2004, pp. 924-5, but those rights are

329

Nancy Amoury Combs

still comparatively limited. Only slightly more than one-third of American jurisdictions require prosecutors to disclose the statements of co-defendants and witnesses, but a majority of American juris­dictions now require the disclosure of scientific reports relating to the case, the defendant's criminal record, and documents and tangible items which will be used at rrial. Ibid., at 933-6. For a discussion of the disclosure obligations placed on British and Irish prosecutors , see D. J. Feldman , 'England and Wales', in C. M. Bradley (ed.), Criminal Procedure: A Worldwide Study, pp. 119-21; F. McAuley and J. O'Dowd, 'Ireland', in C. Van den Wyngaert et al. (eds) , Criminal Procedure Systems in the European Community, London: Butterworths, 1993, p. 195.

6 M . Daly, 'Some Thoughts on the Differences in Criminal Trials in the Civil and Conunon Law Legal Systems' ,Journal of the Institute for the Study of Legal Ethics 2, 1999,67-8; C.Van den Wyngaert, 'Belgium', in C.Van den Wyngaert et al. (eds), Criminal Procedure Systellls in the European Commllnity, p. 30; N.ji:irg et al.,'Are Inquisitorial and Adversarial Systems Converging?', in P. Fennell et al. (eds), Crimi/wi justice ill Europe:A Comparative Study, Oxford: Clarendon Press, 1995, p. 47 (discussing the nature of the dossier in The Netherlands) .

7 G. van Kessel, 'Adversary Excesses in the American Criminal Trial', Notre Dame Law Review 67, 1992, 423; C. Van den Wyngaert, 'Belgium', in C. Van den Wyngaert et al. (eds) , Crimi/wi Procedure Systems in the European Conununity, p. 35 .

8 Typically, the dossier is also made available in its entirety to the defendant or his counsel and is supposed to contain all the evidence relevant to the case, exculpatory as well as inculpatory. See, e.g. M. Damaska, 'Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study', University of Pennsylvania LAw Review 121, 1973, 533-4; R. Frase, 'Comparative Criminal justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?', California LAw Review 78,1990,672.

9 ICTY Rules of Procedure and Evidence, Rule 65ter(E) (2009) (hereinafter ICTY RPE]; ICTR Rules of Procedure and Evidence, Rule 73bis(B) (2008) (hereinafter ICTR RPE] ; SCSL Rules of Procedure and Evidence, Rule 73bis(B) (2008) (hereinafter SCSL RPE].

10 ICTY RPE, Rule 66(A)(i)-(ii); ICTR RPE, Rule 66(A)(i)-(ii); SCSL RPE, Rule 66(A)(i)-(ii) . 11 ICTY RPE, Rule 65ter(G); ICTR RPE, Rule 74ter(B); SCSL RPE, Rule 73ter(B). 12 ICTY RPE, Rule 67(B)(i)(a)-(b); ICTR RPE, Rule 67(A)(ii) (a)-(b); SCSL RPE, Rule 67(A)(ii) (a)-(b).

With respect to an alibi defense, the defendant must inform the prosecution of the places where he claims to have been, and with respect both to alibis and special defenses, the defendant must disclose the names and addresses of the witnesses and any other evidence on which he or she intends to rely. See note 12.

13 For instance, Article 61 (3) of the Rome Statute requires prosecutors to disclose - within a reasonable amount of time before the confirmation hearing - the charge document and the evidence upon which the prosecutor intends to rely at the confirmation hearing. Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183 /9 (1998), Article 61(3) (hereinafter R ome Statute] . Rule 121 of the ICC's Rules of Procedure and Evidence implements Article 61 (3) and pro­vides a detailed regime governing the disclosure of evidence prior to the confirmation hearing. Articles 64(3)(c) and 64(6)(d), by conrrast, govern the disclosure that must take place prior to trial. Those arti­cles are implemented by Rules 76 and 84, which require prosecutors to disclose, among other things, witness lists, witness statements, and the statements of accused . Similarly, pursuant to Rule 79, the defense must disclose its intent to raise an alibi or a ground for excluding criminal responsibility and the identity of the witnesses that it will call to prove those defenses.

14 See ICTR RPE, Rule 69(C); SCSL RPE, Rule 69(C); ICC Rules of Procedure and Evidence, Rule 140(2) (2002) [hereinafter ICC RPE] . See also G. Sluiter, 'The ICTR and the Protection ofWitnesses', j ournal of International Criminaljustice 3, 2005, 972-3.The ICTY continues to require that witness identi­ties be disclosed before trial. See ICTY RPE, Rule 69(C) ('Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for prepa­ration of the defence.')

15 ICTY RPE, Rule 68(i) ; ICTR RPE, Rule 68(A); SCSL RPE, Rule 68(B); Rome Statute, Article 67(2). Although the text of the ICTY, ICTR and SCSL rules suggests that the prosecutor must disclose any exculpatory evidence about which he has 'actual knowledge: those rribunals have sensibly limited the disclosure obligation to material that is also in the possession of the prosecution. Karemera et al. (ICTR-98-44-T) , Decision on joseph Nzirorera's Notices of Rule 68 Violations and Motions for Remedial and Punitive Measures, 13 November 2007, para. 5; Kajelijeli (ICTR-98-44A-A), judgement, 23 May 2005, para. 262.

330

Evidence

16 Rome Statute, Article 54(1). 17 Blaslcic (IT-95-14-PT), Decision on the Defence Motion for 'Sanctions for Prosecutor's Repeated

Violations of Rule 68 of the Rules of Procedures and Evidence', 29 April 1998; Blaslcic (IT-95-14-PT), Decision on the Defence Motion for Sanctions for the Prosecutor's Continuing Violation of Rule 68, 28 September 1998.

18 Nahimana et al. (ICTR-99-52-A), Decision on AppellantJean-Bosco Barayagwiza's Motion Requesting that the Prosecution Disclosure of the Interview of Michel Bagaragaza be Expunged from the Record, 30 October. 2006, para. 6; Karemera et al. (ICTR-98-44-AR73.7), Decision on Interlocutory Appeal Regarding the Role of the Prosecutor's Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 9; Karemera et al. (ICTR-98-44-AR73.6), Decision on Joseph Nzirorera's Interlocutory Appeal, 28 April 2006, para. 16; Kordic and Cerkez (IT-95-1412-A), Judgement, 17 December 2004, para. 183; Brdanin (IT-99-36-A), Decision on Appellant's Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004; Blaslcic (IT-95-14-A),Judgement, 29 July 2004, para. 264.

19 Blaslcic (IT-95-14), Decision on the Appellant's Motions for the Production of Materials, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, para. 45.

20 S. Zappala, 'The Prosecutor's Duty to Disclose Exculpatory Materials and the Recent Amendment to Rule 68 ICTY RPE',jollrnal of International Criminal jllstice 2, 2004, 623; A. Zahar and G. Sluiter, Intematiol1al Crill1;,wl Law, p. 375 and note 132 (citing cases).

21 S. Zappala, HI/man Rights in International CrimiNal Proceedings, Oxford: Oxford University Press, 2003, p. 145;A. Zahar and G. Sluiter, lnternatioNal Crim;'lal Law, p. 375.

22 Rule 85 of the SCSL RPE is very similar, but it does not authorize defense evidence in rebuttal. 23 lCTY RPE, Rule 85(B); ICTR RPE, Rule 85(B); SCSL RPE, Rule 85(B). 24 Rukundo (ICTR-2001-70-T), Decision on Defence Motion to Recall Prosecution Witness BLP, 30

April 2007, para . 7. 25 Blagojevic & Jokic (IT-02-60-T), Decision on Prosecution's Case on Rebuttal and Incorporated

Motion to Admit Evidence under Rule 92bis in its Case on Rebuttal and to Re-open its Case for a Limited Purpose, 13 September 2004, paras 5-6; Delalic et al. (IT-96-21-T), Decision on the Prosecution's Alternative Request to Reopen the Prosecution's Case, 19 August 1998, para. 18 [hereinafter Delalic Decision on Request to Reopen); Halilovic (IT-01-48-T), Decision on Prosecution Motion to Call Rebuttal Evidence, 21 July 2005 [hereinafter Halilovic Decision on Rebuttal Evidence); Oric (IT-03-68-T), Decision on the Prosecution Motion With Addendum and Urgent Addendum to Present Rebuttal Evidence Pursuant to Rule 85(A)(iii), 9 February 2006 [hereinafter Oric Decision on Motion to Request Rebuttal Evidence).

26 Delalic Decision on Request to Reopen, para. 23; see also Oric Decision on Motion to Request Rebuttal Evidence; Ntagerura et al. (ICTR-99-46-T), Decision on the Prosecutor's Motion for Leave to Call Evidence in Rebuttal Pursuant to Rules 54,73, and 85(A)(iii) of the Rules of Procedure and Evidence, 21 May 2003, para. 34 (holding that the Prosecutor has failed to show that the subject of the proposed rebuttal evidence arose for the first time in the Defence's case).

27 Delalic Decision on Request to Reopen, paras 22-3; see also Oric Decision on Motion to Request Rebuttal Evidence (finding that 'admission of the rebuttal evidence proposed by the Prosecution, even if permissible under a more flexible application of the high or strict standard of admissibility, would be outweighed by the need to ensure a fair and expeditious trial.'); Halilovic Decision on Rebuttal Evidence.

28 Karemera et al. (ICTR-98-44-T), Decision on the Prosecution Motion to Reopen its Case and on the Defence Motion to File Another Rule 98bis Motion, 19 April 2008, para. 11 [hereinafter Karemera Decision on Motion to Reopen) .

29 Delalic Decision on Request to Reopen, para. 26. For instance, in Karell1era , prosecution witness BTH recanted his testimony after the Prosecution case had closed, so the Prosecution sought to call three additional witnesses in an effort to bolster its case. Karemera Decision on Motion to Reopen, paras 1-3,8. I n denying the motion, the Trial Chamber noted that the three additional witnesses initially had been on the Prosecution's witness list, but the Prosecution had chosen not to call them and had instead relied on the testimony of BTH. In addition, the Prosecution itself had described the testimony of the three proposed witnesses 'as corroborating evidence that was already on the record.' Id. at para. 12. Under these circumstances, the Tr ial Chamber could not consider the evidence 'new,' and it additionally considered that the interests of justice would not be served by permitting a party to call additional witnesses 'every time they consider a witness may have been discredited.' Id. at paras 12-3; see also

331

Nancy Amoury Combs

Bagosora et al. (ICTR-98-41-T), Decision on Bagosora Motion to Present Additional Witnesses and Vary its Witness List, 17 November 2006, para. 13 (rejecting the Prosecution 's motion with regards to specific witnesses because 'the interests of justice do not favor altering the trial schedule to accommo­date a witness whose appearance is both unnecessary and unlikely') .

30 Delalic Decision on R equest to R eopen, para. 27. 31 Zigiranyirazo (I CTR-01-73-T), Decision on the Prosecution Joint Motion for R eopening its Case and

for Reconsideration of the 31 January 2006 D ecision on the Hearing ofWitn ess Michel Bagaragaza by Video-Link, 16 N ovember 2006, para. 16.

32 R ome Statute, Article 64(8) (b) provides:' At the trial , the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fa ir and impartial manner. Subject to any directions of the presiding judge, the parti es may submit evidence in accordance with the provisions of this Statute.'

33 Should the judge decline to set out the order of evidence presentation, Rule 140(1) of the ICC's Rules of Procedure and Evidence authorizes the parties to reach their own agreement on the question. H owever, since it may prove difficult for the parti es to agree on such an important issue, Rule 140(1) provides a back- up plan by requiring the judge to issue directions. H owever, R ule 140(2) limits the judge's discretion by establishing certain rules concerning witness questioning that apply ' in all cases.' In particular, no matter what procedural model the judge chooses, in each case each party maintains the essential right to question the witnesses they call, and to question the witnesses their opponent calls.

34 Lubanga (ICC-01l04-01/06-T-104-ENG), Transcript, 16 January 2009, at 37-8. 35 T he ICTR's Rule 89(C) is identical to that of the ICTY, but the ICTR has not adopted Rule 89(0 )

which permi ts a Trial Chamber to 'exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial .'The pertinent SCSL Rule seems to contemplate an even more lenient standard, for it provides simply that a 'Chamber may admit relevant evidence.' SCSL RPE Rule 89(C).

36 R ome Statute, Article 69(4). 37 ICC RPE, Rule 63(2). 38 Musema (ICTR-96-13), Judgement and Sentence, 27 January 2000, para. 56 (emphasis in original)

[hereinafter Musema Judgement] . 39 Brdanin and Talic (IT-99-36-T), Order on the Standards Governing the Admiss ion of Evidence,

15 February 2002, para. 13. 40 See, e.g. Kordic & Cerkez (IT-95-1412), Decision on Appeal R egarding Statement of a Deceased

Witness, 21 July 2000, para. 28; Musema Judgement, paras 35-8. 41 See, e.g. Blaskic (IT-95-14-T), Decision on Standing O bjection of the Defence to the Admission of

Hearsay with no Inquiry as to its R eliability, 21 January 1998, paras 11- 13 [hereinafter Blaskic Decision on Admission of Hearsay]; Aleksovski (IT-95-14/ 1- T), Decision Granting Leave for the Admission of Evidence, 22 O ctober 1998 .

42 A. Rodrigues and C. Tournaye, ' Hearsay Evidence', in R . May et al. (eds), Essays on ICTY Procedllre olld Evidence in HOIlOllr of Gabrielle Kirk McDonald, The Hague: Kluwer Law International, 2001, p. 303; R. May and M. Wierda, hltematiol1al Crimi/wi Evidellce, Ardsley, NY: Transnational, 2002, pp. 109-10; see also Stakic (IT-97-24- PT), Provisional Order on the Standards Governing the Admission of Evidence and Identification, 25 February 2002, p. 6.

43 D. Piragoff, 'Article 69 - Evidence', in 0. Trimerer (ed.), 11 Commentary 0 11 the Rome Statute of the Intemational Criminal COllrt - Observers' Notes, A rticle by Article, Munich/Oxford / Baden- Baden: C. H. Beck, Hart, Nomos, 2nd edn , 2008, p. 1306.

44 ICTY Statute, SC R es. 827, UN SCOR , 48th Sess., 3217th mtg., UN Doc. S/RES/827, Article 21 (4)(e) (1993); ICTR Statute, SC R es. 955, UN SCOR , 49th Sess ., 3453d mtg., UN Doc. S/R.ES/955 & Annex, Article 20(4)(e) (1994); Statute of the Special Court for Sierra Leone, Article 17(4)(e) (2002).

45 See Tadic (IT-94-1-T ), Decision on the Defence Motions to Summon and Pro tect Witnesses and on the Giving of Evidence by Video Link , 25 June 1996, para. 11 ; Kuprd kic (IT-95-16-AR73.3), Decision on Appeal by Dragan Papic aga inst Ruling to Proceed by Deposition, 15 July 1999, para. 18; Aleksovski , (IT-95- 14/ 1- A), Judgement,24 March 2000, paras 62-64.

46 Black 's Law Dictionary, St. Paul , Minn:West Publishing Co. 6th ed., 2009, p.790. 47 Tadic, (IT-94- 1-T), Decision on Defence Motion on Hearsay, 5 August 1996, para. 7; see also

Aleksovski (IT-95-1 4/1-AR73), Decision on Prosecutor's Appeal on Admissibil ity of Evidence, 16 February 1999, para. 15 [hereinafter Aleksovski Decision on Admissibili ty of Evidencel ; Blaskic Decision on Admission of Hearsay, para. 9.

332

Evidence

48 See A. Rodrigues and C. Tournaye, 'Hearsay Evidence', in R. May et al. (eds), Essays 011 ICTY Procedllre arid Evidence ill Hoy/ollr of Gabrielle Kirk McDonald, pp. 300--01.

49 The current SCSL's rules also express no preference for oral testimony. SCSL Rule 90 provides that '[w]itnesses may give evidence directly or as described in Rules 71 [governing depositions] and 85(D) [governing testimony given through video media].'

50 The original text of Rule 71(A) at the ICTY, ICTR and SCSL provided that, 'at the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial.' Subsequent case law established that the temporary unavailability of a judge did not satisfY the 'exceptional circumstance' requirement under Rule 71(A). Rather, the Appeals Chamber strictly construed the rule to permit depositions only in instances in which witnesses were unavailable or possibly where the accused agreed to the admission. Kuprdkic (IT-95-16-A), Decision on Appeal by Dragan Papic against Ruling to Proceed by Deposition, 15 July 1999, paras 19-22. The ICTY then amended Rule 71 to eliminate the 'exceptional circumstances' requirement. Consequently, the rule now permits a Trial Chamber to order a deposition so long as doing so is ' in the interests of justice', and regardless of ' whether or not the person whose deposition is sought is able physically to appear before the Tribunal to give evidence.'

51 Factors arguing in favor of the admission of written evidence include instances in which the relevant evidence: (a) is cumulative to other evidence given orally; '(b) relates to relevant historical, political or military background; (c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates; (d) concerns the impact of crimes upon vic­tims; (e) relates to issues of the character of the accused; or (f) relates to facto rs to be taken into account in determining sentence.' lCTR RPE, Rule 92bis (A)(i)(a)-(f); ICTY RPE, Rule 92bis (A)(i)(a)-(f). Factors arguing against the admission of written evidence include instances in which '(a) there is an overriding public interest in the evidence in question being presented orally; (b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or (c) there are any other factors which make it appropriate for the witness to attend for cross-examination.' ICTY RPE, Rule 92bis (A)(ii) (a)-(c); ICTR RPE, Rule 92bis (A)(ii)(a)-(c).

52 ICTY RPE, Rule 92bis (B); ICTR RPE, Rule 92bis (B). 53 R. May and M. Wierda, international Criminal Evidence, p. 222. 54 A. Zahar and C . Sluiter, in.temational Criminal LAw, pp. 388-9. 55 ICTY RPE, Rule 95; ICTR RPE, Rule 95.The SCSL's rule on the subject provides that ' [n]o evidence

shall be admitted if its admission would bring the administration of justice into serious disrepute.' SCSL RPE, Rule 95.

56 A. Zahar and C. Sluiter, International Crimitlal LAw, pp. 381-2. 57 Karemera et al. (ICTR-98-44-T), Decision on the Prosecutor's Motion for Admission of Certain

Exhibits into Evidence, 25 January 2008, para. 11 (hereinafter Karemera Decision on Motion for Admission of Exhibits].

58 Niyitegeka (ICTR-96-14-A), Judgement, 9 July 2004, para. 39. 59 Karemera et al. (ICTR-98-44-T), Decision on the Prosecution Motion for Admission into Evidence of

Post-Arrest Interviews with Joseph Nzirorera and Mathieu Ngirumpatse, 2 November 2007, para. 17 [hereinafter Karemera Decision on Motion for Admission of Post-Arrest Interviews].

60 Karemera Decision on Motion for Admission of Exhibits, para. 16. 61 Id. at para. 11. 62 Bagosora et al. (ICTR-98-41-T), Decision on the Prosecutor's Motion for the Admission of Certain

Materials Under Rule 89(C), 14 October 2004, para. 21; Zigiranyirazo (ICTR-2001-73-T), Decision on the Voir Dire Hearing of the Accused's C urriculum Vitae, 29 November 2006, para. 13; Karemera Decision on Motion for Adn"lission of Post-Arrest Interviews, para. 25.

63 Karemera Decision on Motion for Admission of Post-Arrest Interviews, paras. 9,11-3,30,32. 64 Kajelijeli (ICTR-98-44A-T) , Decision on Kajelijeli's Motion to Hold Members of the Office of the

Prosecutor in Contempt of the Tribunal (Rule 77(C)], 15 November 2002, para. 14. 65 A. Zahar and C. Sluiter, inrernational Criminal LAw, p. 382. 66 Id . 67 Kayishema and Ruzindana (IT-95-1-A),Judgement, 1 June 2001, para. 319. 68 See C. Sluiter, intemational Crimi/wi Adjudicatio/! and the Collection of Evidence: ObligatiorlS of States,

Antwerp: Intersentia, 2002, p. 237. 69 See, e.g. Aleksovski Decision on Admissibility of Evidence, para. 15; Tadic (IT-94-1-A-R77),

Judgment on Allegations of Contempt aga inst Prior Counsel, Milan Vujin, 31 January 2000, para. 93.

333

Nancy Amoury Combs

70 As the Tadic Trial C hamber put it, ' It is preferable for the Trial Chamber to have the benefit of the physical presence of the witnesses at trial .' Tadic (IT-94-1-T), Decision on the Defence Motions to Summon and Protect Defense Witnesses and on the Giving of Evidence by Video Link, 25 June 1996, para. 21.

71 (d. 72 Musema Judgement, at para. 67 .

334