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The Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman  and
Eric E. Freedman
W. Michael Reisman
Affiliation:
California Bar
Eric E. Freedman
Affiliation:
California Bar
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Extract

A suit cannot be pressed, whether on the domestic or international level, without supporting evidence. The processes of gathering such evidence are carefully regulated in many developed legal systems, in part because experience has shown that too zealous a pursuit of evidence can easily transform institutions designed to resolve conflict into a rationalization and a setting for possibly even more rancorous conflict. When some part of the state apparatus is prosecuting a case, liberal democracies have often imposed more stringent regulations as part of what we may call, in a nondocumentary sense, the “constitutional” or “rule of law” tradition, that continuing compact between governors and governed about restraint in the use of official power.

Type
Research Article
Information
American Journal of International Law , Volume 76 , Issue 4 , October 1982 , pp. 737 - 753
Copyright
Copyright © American Society of International Law 1982

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References

1 See, e.g., Israel, , Legislative Regulation of Searches and Seizures: The Michigan Proposals , 73 Mich. L. Rev. 222 (1974)Google Scholar.

2 See, e.g., Amsterdam, , Perspectives on the Fourth Amendment , 58 Minn. L. Rev. 349 (1974)Google Scholar; Levin, & Cohen, , The Exclusionary Rules in Nonjury Criminal Cases , 119 U. Pa. L. Rev. 905 (1971)Google Scholar; Weinreb, , Generalities of the Fourth Amendment , 42 U. Chi. L. Rev. 47 (1974)Google Scholar.

3 See W. M. Reisman, Nullity and Revision 593-94 (1971):

The most extreme statement of the international burden of disclosure is found in the Parker Claim before the United States-Mexican General Claims Commission in 1927. In this case, the commission held that the respondent government was under an “obligation to lay before the Commission all evidence within its possession to establish the truth whatever it may be” and proceeded to declare that:

the parties before this Commission are sovereign nations who are in honor bound to make full disclosures of the facts in each case so far as such facts are within their knowledge or can reasonably be ascertained by them. The Commission, therefore, will confidently rely upon each Agent to lay before it all of the facts that can reasonably be ascertained by him concerning each case no matter what their effects may be.

The rule in Parker’s case has been cited with approval by other tribunals, and similar high burdens of disclosure appear in many compromis [footnotes omitted].

4 D. Sandifer, Evidence Before International Tribunals 176 (1975).

5 Ibid.

6 Ibid.

7 Lauterpacht, H., The So-called Anglo-American and Continental Schools of Thought in International Law , 12 Brit. Y.B. Int’l L. 31, 41 (1931)Google Scholar.

8 See Damaska, , Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study , 121 U. Pa. L. Rev. 506 (1973)Google Scholar (“It is said that while common law systems are mainly concerned with the issue of admissibility, civil law systems admit all evidence that is logically relevant.” Id. at 513).

9 Sandifer writes:

The International Court of Justice has construed the absence of restrictive rules in its Statute to mean that a party may generally produce any evidence as a matter of right, so long as it is produced within the time limits fixed by the Court. Evidence submitted after those time limits may only be admitted with the consent of the other party and subject to the sanction of the Court. In practice, while the Court has placed few restrictions upon the rights of the parties to produce whatever evidence they see fit, it has upon occasion exercised its discretionary authority to refuse to accept evidence offered.

D. Sandifer, supra note 4, at 184-85 (footnotes omitted).

Rosenne writes:

The practical inability to deduce from the preceding survey of the practice of the Court—whether its administrative decisions or its judicial work—clear guidance on the material admissibility of evidence (beyond the general test of relevance) is to no small extent due to the nature of international litigation and the manner in which it is conducted. The truth is that material admissibility is rarely disputed, least of all on formal grounds, and the parties concentrate on attacking the weight of evidence brought by the other side.

S. Rosenne, The Law and Practice of the International Court 584 (1965).

10 D. Sandifer, supra note 4, at 189-90.

11 Alford, , Fact Finding by the World Court , 4 Vill. L. Rev. 37, 81 (1958)Google Scholar. Cf. M. Hudson, The Permanent Court of International Justice §520, at 571 (1943) (“The occasions have been rare in which the [Permanent] Court [of International Justice] has excluded evidence proffered, and no general rules for exclusion have been formulated”).

12 Interhandel Case (Switz. v. U.S.), 1959 ICJ Rep. 6 (Judgment of March 21).

13 Mémoire du Gouvernement de la Conféderation Suisse, 1959 ICJ Pleadings (Interhandel) 79, 128 (Memorial dated March 3, 1958).

14 J. Ralston, The Law and Procedure of International Tribunals §§379-83 (1926); J. Simpson & H. Fox, International Arbitration 192-93 (1959).

International tribunals usually allow the parties the greatest freedom in presenting evidence. In international law there are no general rules requiring the exclusion of categories of evidence. While it is open to the parties to agree upon rules of exclusion, the tendency has always been to give tribunals the widest discretion in the admission and assessment of evidence.

Id. at 192.

15 Franqui Case (Spain v. Venez.), 10 R. Int’l Arb. Awards 751 (1903).

16 A. Mérignhac, Traité théorique et pratique de l’arbitrage international §272, at 269-70(1895).

17 10 R. Int’l Arb. Awards at 751.

18 The assumption that restrictive rules of admissibility are an exclusively Anglo-American phenomenon, evolving in the law of evidence of common law countries only because of the institution of the jury, is widely shared among scholars. McCormick has written: “It is safe to say that without the jury there would be no law of evidence remotely resembling the rules of admissibility which make up its contents in English-speaking countries today.” Evidence, in 5 Encyclopedia of the Social Sciences 639 (1931). Wigmore is to the same effect:

But chiefly it owes its origin, maintenance, and system to the separation of function between judge and jury. If this separation of judge and jury had not existed as it has, with all its history, nothing marked would probably have developed. Under the Continental systems, in which the jury is but a modern borrowing, little of the sort appears.

J. Wigmore, Evidence §28, at 409 (1940). Sandifer writes: “The radical difference in Anglo- American and in civil law rules relating to admissibility of evidence is generally attributed to the presence of the jury in the judicial system of the former and its absence in the latter.” D. Sandifer, supra note 4, at 177.

19 D. Sandifer, supra note 4, at 182.

20 Island of Palmas Case (Neth. v. U.S.), 2 R. Int’l Arb. Awards 831 (Perm. Ct. Arb. 1928).

21 Id. at 840-42. See D. Sandifer, supra note 4, at 60-69.

22 On nullity in general, see A. Balasko, Causes de nullité de la sentence arbitrale en droit international public (1938); W. M. Reisman, supra note 3; J. Witenberg, L’Organisation judiciare, la procédure et la sentence internationales (1937).

23 Arrangement between the United Kingdom and Honduras Referring to Arbitration Matters relating to the Masica Incident, 10 AJIL, Supp. 98 (1916).

24 Id. at 100.

25 Honduras and Nicaragua v. Guatemala and El Salvador, The Claim Instituted before the Court of Justice of Central America by the Government of Honduras against the Government of Guatemala 90-143 (1908); Felipe Molina Larios v. Honduras, 3 Anales de la Corte de Justicia Centroamericana 58, 60-61 (1913). See D. Sandifer, supra note 4, at 185-86.

26 Question of the Monastery of Saint-Naoum (Albanian Frontier), 1924 PCIJ, ser. B, No. 9.

27 1924 PCIJ, ser. C, No. 5-II, at 381-82; 1926-27 PCIJ, ser. E, No. 3, at 214.

28 Case of Free Zones of Upper Savoy and the District of Gex, 1932 PCIJ, ser. A/B, No. 46.

29 Article 52 of the Statute of the Permanent Court of International Justice read: “After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents.” Article 52 of the Statute of the International Court of Justice is identical to that of the Permanent Court.

30 1929 PCIJ, ser. A, No. 22, at 14, 21.

31 The Mavrommatis Jerusalem Concessions, 1925 PCIJ, ser. A, No. 5.

32 1929-30 PCIJ, ser. E, No. 6, at 290.

Article 33 of the 1926 Rules of the Permanent Court of International Justice read:

The Court shall fix time limits in each case by assigning a definite date for the completion of the various acts of procedure, having regard as far as possible to any agreement between the parties.

The Court may extend time limits which it has fixed. It may likewise decide in certain circumstances that any proceeding taken after the expiration of a time limit shall be considered as valid.

If the Court is not sitting, the powers conferred upon it by this article shall be exercised by the President, subject to any subsequent decision of the Court.

Rules of Court, adopted on July 31, 1926, PCIJ, ser. D, No. 1, at 33, 46-47.

33 This consideration is an important one on the domestic level as well. Rule 408 of the Federal Rules of Evidence provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

According to the Advisory Committee’s Note to Rule 408, “exclusion may be based on two grounds. (1) The evidence is irrelevant. . . . (2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes.”

See McCormick’s Handbook of the Law of Evidence §274 (2d ed. E. Cleary 1972).

34 Case Concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction), 1927 PCIJ, ser. A, No. 9.

35 Id. at 19.

36 Jurisdiction of the European Comm’n of the Danube between Galatz and Braila, 1927 PCIJ, ser. B, No. 14.

37 Id. at 32.

38 Case Relating to the Territorial Jurisdiction of the Int’l Comm’n of the River Oder, 1929 PCIJ, ser. A, No. 23.

39 Id. at 42.

40 The Diversion of Water from the River Meuse, 1937 PCIJ, ser. A/B, No. 70.

41 1937 PCIJ, ser. C, No. 81, at 220, 224.

42 See, e.g., Alford, supra note 11, at 81:

An exclusion of evidence by the [International] Court [of Justice] based upon the way in which it was secured would be unrealistic in view of the known barriers established by States to the flow of information. The Court is not faced with the problem of intermittent police abuses of individuals which national constitutional guarantees are designed to minimize. The Court must get its evidence when and by whatever means it can obtain it.

43 Case concerning Antonio Máximo Mora (Spain v. United States), 16 Record, Opinions and Decisions, United States-Spanish Mixed Claims Commission, Decision No. 48 (1871).

44 Count Lewenhaupt, Umpire, Case of Antonio Maximo Mora, quoted in D. Sandifer, supra note 4, at 182-83.

45 2 S. Rosenne, supra note 9, at 557.

46 Such was the basic rationale for the United States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961), which held that the Fourteenth Amendment fully incorporated the Fourth Amendment’s guarantee against unreasonable searches and seizures, on the ground that “the only effectively available way” that one could compel respect for the “constitutional guaranty” of the Fourth Amendment was to exclude from both state and federal criminal prosecutions all evidence obtained in violation of the Constitution. 367 U.S. at 656 (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)). Stressing the importance of “the imperative of judicial integrity,” the Supreme Court noted that “[n]othing can destroy a government more quickly than its failure to observe its own laws.” 367 U.S. at 659.

47 See notes 49-69 and accompanying text, infra.

48 Corfu Channel Case (UK v. Alb.), 1949 ICJ Rep. 4 (Judgment of April 9).

49 Id. at 33.

50 Id. at 33-34.

51 Id. at 34.

52 Ibid.

53 In oral argument, Sir Eric Beckett, representing the United Kingdom, characterized his nation’s intervention theory as follows:

[W]e say that the United Kingdom had the right to sweep for the purposes of investigating the cause of the explosions under Saumarez and Volage in October, because (i) the United Kingdom did suspect, and had good reason to suspect, that a most serious international offence had been committed against ships of the Royal navy; (ii) the United Kingdom wished to bring a claim before the Security Council, if evidence was found to justify its suspicions; (iii) the United Kingdom feared, and had good reason to fear, that if very speedy action was not taken that evidence would be made to disappear by the party guilty of this offence.

Reply by Sir Eric Beckett, ICJ Pleadings (4 Corfu Channel) 542, 572 (Reply dated Jan. 18-19, 1949).

The legality of such intervention as its minesweeping operation represented, asserted the United Kingdom, was well recognized in international law:

(a) There is recognized in international law the right of a state, when a state of affairs involving a serious and flagrant breach of the law has been brought about by another State or has been permitted to come about, to intervene by direct action. The purpose of such intervention may be to prevent the continuance of the situation which is in breach of the law, or, where the intervening State has suffered an injury of a nature capable of being redressed, to further the administration of international justice by preventing the removal of the evidence.

(b) In this case it was plain from the nature of the incident of 22nd October that a serious breach of international law had been committed by some State whether Albania or another. Not only had a dangerous obstruction been placed right across an international highway of navigation, thus constituting a threat to the shipping of all nations, but this obstruction took the form of a minefield the laying of which was a manifest breach of the Hague Convention VIII of 1907. Either of these grounds was in itself sufficient to justify intervention by the United Kingdom, the State which had suffered from it.

Reply of the United Kingdom, id. (2 Corfu Channel) 241, 282, para. 82 (Reply dated July 30, 1948).

The United Kingdom acknowledged that any right of intervention must be “exercised in a reasonable manner so as to cause the minimum interference with the sovereignty of the State concerned.” Id. at 284, para. 82(f). It argued that this requirement had been fulfilled in Operation Retail because “the Government of the United Kingdom in fact took the utmost precautions to ensure that all aggressive and provocative acts were avoided and that Albanian sovereign rights were not infringed.” Id. at 286, para. 84.

In response to the claims of the United Kingdom, Albania asserted that a right of intervention, if it existed any longer in international law, was a collective right of international organizations and not individual states. Reply of Albania, id. at 313, 372, para. 151 (Reply dated Sept. 20, 1948). According to Albania, the fact that British ships were victims of mine explosions did not excuse the sweeping operation. And even if Great Britain had possessed a right of intervention, the Albanians declared, the abusive manner in which the minesweeping operation was exercised would itself constitute an infringement upon the sovereignty of Albania. Id. at 372, para. 150. The Albanian representative warned that support by the International Court for the act of the United Kingdom would create a serious threat to world order: “Le Gouvernement albanais . . . ajoute qu’il serait fort dangereux pour la Cour de sanctionner par son autorité des pratiques qui ne correspondent pas à l’état actuel des relations internationales et sont la négation même de la justice internationale.” Id. at 371, para. 147.

54 1949 ICJ Rep. at 35.

55 Ibid.

56 Ibid.

57 But see Shah, Discovery by Intervention: The Right of a State to Seize Evidence Located Within the Territory of the Respondent State, 53 AJIL 595, 612 (1959):

Certain eminent writers are of the view that, despite what they term the somewhat general language used by the [Corfu Channel] Court, the observations of the Court could be confined merely to rejecting the right of self-help for the purpose of discovery of evidence, and selfhelp might still be regarded as legal in some circumstances. It is submitted that the learned authors, in their anxiety to retain the right of self-help for states till such time as the systems of pacific .settlement of international disputes and of collective security established by the Charter can be rendered effective, read into the declaration of the Court an interpretation that it cannot bear. . . . [Discovery of evidence by intervention is not a method that is admissible in international law [footnote omitted].

58 Case concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 1 (Judgment of May 24).

59 See, e.g., Status of Eastern Carelia (Advisory Opinion), 1923 PCIJ, ser. B, No. 5; Nuclear Tests Cases (Austl. v. Fr.), 1973 ICJ Rep. 99 (Order of June 22), 1974 ICJ Rep. 253 (Judgment of Dec. 20); Fisheries Jurisdiction Case (UK v. Ice.), 1974 ICJ Rep. 3 (Judgment of July 25).

60 1980 ICJ Rep. at 8.

61 No convincing evidence of illegal United States intervention in Iranian affairs seems to have been discovered in the American Embassy in Tehran. Barry Rubin explains the disparity between the expectations of the student militants who seized the Embassy and the reality of their findings in the following terms:

None of [the leaders of the students who occupied the Embassy] had much experience with international politics or with the workings of embassies. This, coupled with their ideology, made their analyses of the United States Embassy’s operations inaccurate in the extreme. For them, a State Department report on the Kurdish insurrection or on the anti- Khomeini Islamic terrorist group Forqan was proof that the United States was in contact with these movements, if not directing them. Any meeting between an Iranian official and embassy employees was proof of the former’s treason and the latter’s espionage. What was the most remarkable was their failure, after months in the embassy files, to produce any hard evidence of their accusations; some of the material circulated as evidence within Iran consisted of the most transparent forgeries.

B. Rubin, Paved with Good Intentions 326 (1980).

62 The Times of London found an inability independently to scrutinize the evidence to be one of the failings of the five-man United Nations Commission sent to Tehran in February of 1980. In an editorial entitled A Meaningless Tribunal, the Times criticized the Commission in part as follows:

The United Nations has a fundamental responsibility to uphold and preserve international law. It also has the task of resolving international disputes by whatever peaceful means are appropriate. The continued captivity of the hostages in Iran has now compelled the United Nations to jettison one of those principles in pursuance of the other. In giving its imprimatur to the five-man Commission investigating the alleged crimes of the former Shah of Iran, the United Nations is playing a dangerous game. It is saying, in effect, that it is prepared to accept, and submit to, one of the most serious and blatant acts of international illegality of the century in the hope of gaining the release of the American hostages, and, as a secondary objective, promoting the normalization of relations between Iran and the United States, especially desirable in the context of the Soviet invasion of Afghanistan.

….

The investigation will meet not even the most basic principles of natural justice. There will be no independent scrutiny of the evidence, no cross-examination of witnesses, no attempt to ensure that any denial or explanation or defence on the part of the former Shah is heard and taken into account. It will be an entirely one-sided affair, staged-managed by the Iranians to achieve a particular result.

The Times (London), Feb. 21, 1980, at 15.

63 1980 ICJ Rep. at 38-43.

64 Id. at 38. See Case Concerning United States Diplomatic and Consular Staff in Tehran (United States V. Iran), Memorial of the Government of the United States of America, pt. V, at 73 (1980):

Various Iranian spokesmen have stated or implied that some of the members of the United States Embassy in Tehran may have been engaged in functions (specifically, information-gathering or intelligence work) that are not contemplated by Article 3 of the Vienna Convention on Diplomatic Relations and that such actions, and the use of Embassy premises for such purposes, justify Iran’s failure to accord inviolability to United States diplomatic agents and premises under Articles 22 and 29-35 of the Vienna Convention on Diplomatic Relations. But even if—contrary to fact—the Government of Iran had proved to the Court that in one or more respects the United States or the members of its Embassy had violated one or more obligations under the Vienna Convention, there would be no ground for finding that such violations excuse Iran from the legal obligations . . . described in this Memorial.

65 1980 ICJ Rep. at 38-40; Vienna Convention on Diplomatic Relations of 1961, 500 UNTS 95, 23 UST 3227, TIAS No. 7502.

66 1980 ICJ Rep. at 38-40; Vienna Convention on Consular Relations of 1963, 596 UNTS 261, 21 UST 77, TIAS No. 6820.

67 1980 ICJ Rep. at 40.

68 Vienna Convention on Diplomatic Relations, supra note 65.

69 1980 ICJ Rep. at 44.

70 [1947] 3 D.L.R. 618.

71 The practice of electronic and even more intrusive surveillance, inter alia, of diplomatic premises was defended by John Ehrlichman as authorized by 18 U.S.C. §2511. Presidential Campaign Activities of 1972, Senate Resolution 60: Hearings before the Senate Select Comm. on Presidential Campaign Activities, 93d Cong., 1st Sess. 2543 (1973-74). In part because of this, 18 U.S.C. §2511(3) was subsequently repealed. For a review of the alleged practice of government surveillance, see V. Marchetti & J. Marks, The CIA and the Cult of Intelligence 204-05 (1974). The Foreign Intelligence Surveillance Act, 50 U.S.C. §1801 (1978), would appear to contravene the letter of the Vienna Convention on Diplomatic Relations, but may well represent a distressingly wide spectrum of national practice. The United States, as a “rule of law” system in which legislative-bureaucratic controls have been extended increasingly to the foreign affairs sector, may be singular among electronically eavesdropping nations only in that it must establish explicit and publicly acknowledged legislative authority to do things many other states are able to do secretly or discreetly. Hence the United States is singled out for blame for engaging in what may well be operationally accepted conduct. See W. M. Reisman, Folded Lies, ch. 1 (1979). Be that as it may, the United States and other states that engage in such conduct must conclude, and presumably have concluded, that the need for and value of intelligence gained by electronic surveillance outweighs the incremental erosion of the norm upholding the inviolability of diplomatic premises and their communications.