Collection of evidence at international criminal tribunals

1. Collection of evidence at international criminal tribunals Prof. Göran Sluiter Amsterdam Center for International Law University of Amsterdam

2. Adversarial: Parties to the proceedings must collect their own evidence, supporting their respective cases Inquisitorial: Evidence is collected by objective party/judge Objective prosecutor Examining magistrate Two systems of evidence collection

3. Adversarial approach: post WW II Tribunals of Nuremberg and Tokyo ICTY, ICTR and SCSL Towards a more inquisitorial approach of collection of evidence: Possibility for judges to call witnesses and put questions to witnesses at ICTY, ICTR and SCSL Duty for ICC Prosecutor to look for exculpatory evidence Co-investigating judges and judicial investigations at ECCC Experiments in international criminal justice

4. Parameters for evaluation: fairness,efficiency, quality of fact-finding, goals and objectives of international criminal procedure Problem of conflicting parameters for evaluation, lack of priority and differences between international criminal tribunals Problems in approaches: Adversarial (ICTY, ICTR, SCSL): no equality of arms,’sporting contest’ as an obstacle to establishing the truth, very lengthy trials Inquisitorial element at ICTY (active role for Trial judges): risk of interference with presentation of evidence and cross-examination, risk of affecting impartiality Evaluation: preferable approach?

5. Inquisitorial (ICC, duty to look for exonerating evidence): how is this enforced in practice? Not yet a culture of an ‘objective prosecutor’ in international criminal proceedings Inquisitorial ‘pure’ (ECCC): very lengthy pre-trial phase, no/limited involvement of defence, risk of repeating the pre-trial judicial investigation at trial, risk of inaccessible trials (no/limited presentation of evidence at trial) Evaluation - ctd

6. Sufficient evidence must be available (if not, proceedings should be stayed/terminated (Tadic appeals judgement, 15 July 1999) In respect of all evidence and all parties: cooperation is needed from a. states, b. non-state entities, c. individuals In adversarial approach: equality of arms, prosecutor and defence must be able to collect evidence under procedurally equal circumstances Once evidence collected by parties: question of disclosure Evidence collection in practice

7. Fairness: does the defence have sufficient access to state cooperation? Problem 1: Defence is not an organ and there is no duty to cooperate with the Defence Problem 2: Judges can request states to cooperate, but impose a certain threshold for Defence applications; this threshold does not exist for the Prosecutor Problem 3: Certain investigative powers are exclusively available to the Prosecutor, which is inconsistent with the equality of arms. Article 99 (4) of the ICC Statute is the example. State cooperation in the collection of evidence

8. Efficiency: States do not comply with a request for collection of evidence One can distinguish several scenarios Acting good faith / bad faith Problem at the requesting court? For example, request is not clear, not properly formulated Legitimate ground of refusal (either explicit in the Statute or implicit) National law offers no basis for compliance National authorities are practically unable to obtain the requested evidence National authorities deliberately refuse or even ignore request for assistance State cooperation - ctd

9. Biggest problem: enforcement of compliance Several ICC decisions in respect of non-cooperative States Non-party: Sudan Party-states: Kenya and Chad Steps to be followed in a process of enforcing compliance Legal argument/hearing including all affected parties: prosecutor, defence and non-complying State Judicial determination of non-compliance (preferably by a special Chamber) Faithful execution of the judgement by political body (risk of Assembly of States Parties as appellate body for non-complying State) State cooperation - ctd

10. Thank you for your attention!