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The Appeals Decision in the ICC's Jean-Pierre Bemba Gombo Case on the Trial Chamber's ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution's List of Evidence’

Published online by Cambridge University Press:  02 May 2012

CHRISTINE SCHUON
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Abstract

When, on 3 May 2011, the Appeals Chamber reversed the decision of Trial Chamber III in the Bemba case that had admitted material on a list of the prosecution into evidence, it addressed various central issues related to the admission of evidence under the legal framework of the International Criminal Court (inter alia, the orality principle). The present article critically analyses both decisions. In particular, it views the Trial Chamber's approach that envisages a multi-tiered process of admitting evidence, in light of the approaches of civil law and common law, and expresses concerns about uncertainties and protraction that may result. As the Court's legal framework does not determine that the processing of evidence follow either the civil-law or the common-law model, this is left for the trial chambers to decide in each case. In determining the preferable approach for each respective case, consideration of the procedural context is key. The Appeals Chamber decision allows for the required leeway of the trial chambers in regulating the processing of evidence, to adopt a way that fits the particular circumstances best.

Keywords

Appeals ChamberadmissibilityBembacivil lawcommon law
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Information
Leiden Journal of International Law , Volume 25 , Issue 2 , June 2012 , pp. 511 - 520
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the Decision of Trial Chamber III entitled ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution's List of Evidence’, Case No. ICC-01/05-01/08-1386 OA 5 OA 6, 3 May 2011.

2 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-424, 15 June 2009.

3 Trial Chamber decision, para. 30.

4 Judge Kuniko Ozaki dissenting, Trial Chamber decision, para. 8, footnote 20.

5 Ibid., para. 35.

6 Prosecutor v. Jean-Pierre Bemba Gombo, Prosecution's Submission of its ‘Updated Summary of Presentation of Evidence’ with Confidential, Ex Parte, Prosecution and Defence Only Annexes A, B, C, D and Public Annex E, Case No. ICC-01/05-01/08-669, 15 January 2010 (hereafter, ‘Prosecution's 15 January 2010 Submission’), paras. 1–2. The list apparently was contained in both Annex B and Annex D; see Appeals Chamber decision, supra note 1, para. 8, particularly footnotes 13–14. In fact, three different versions of this list have been filed in the course of the proceedings: a first one was filed upon the Trial Chamber's initial request (Prosecutor v. Jean-Pierre Bemba Gombo, Prosecution's Submission on Evidence that It Intends to Positively Rely upon at Trial, Case No. ICC-01/05-01/08-592, 4 November 2009); the list mentioned above, filed on 15 January 2010, in fact constituted an updated version of that original list as requested by the Trial Chamber; the third and last updated version of the list was requested by the Trial Chamber decision (ibid., para. 30; Prosecutor v. Jean-Pierre Bemba Gombo, Prosecution's Submission of Updated List of Evidence and Other Information, Case No. ICC-01/05-01/08-1027, 22 November 2010). The Trial Chamber decision admitted the items into evidence that appeared on this third list (ibid., paras. 30, 35). Other than that, the distinction between the three versions of the list is irrelevant for the purpose of the discussion in this paper, and will therefore not be pointed out further.

7 Trial Chamber decision, para. 1.

8 Prosecution's 15 January 2010 Submission, supra note 6, paras. 3(b), 9.

9 Prosecutor v. Jean-Pierre Bemba Gombo, Order for Submissions on the Presentation of Evidence at Trial, Case No. ICC-01/05-01/08-921, 4 October 2010, para. 2.

10 Ibid., para. 1.

11 Prosecutor v. Jean-Pierre Bemba Gombo, Prosecution's Position on Potential Submission of Witness Statements at Trial Pursuant to Trial Chamber III's Order, Case No. ICC-01/05-01/08-941, 11 October 2010; Prosecutor v. Jean-Pierre Bemba Gombo, Legal Representative's Observations on the Potential Submission into Evidence of the Prior Recorded Statements of Prosecution Witnesses Testifying at Trial, Case No. ICC-01/05-01/08-943, 11 October 2010; Prosecutor v. Jean-Pierre Bemba Gombo, Defence Observations on the Potential Submission into Evidence of the Prior Recorded Statements of Prosecution Witnesses Testifying at Trial, Case No. ICC-01/05-01/08-960, 18 October 2010.

12 Appeals Chamber decision, supra note 1, para. 82.

13 Ibid., paras. 38–39, referring to the Trial Chamber decision, paras. 13, 15, 27–28 (emphasis in original).

14 Ibid., paras. 38–39, referring to the Trial Chamber decision, paras. 10, 19.

15 Ibid., paras. 41–46, particularly paras. 44, 46.

16 Ibid., paras. 42–43.

17 Ibid., para. 44.

18 Ibid., paras. 47–50.

19 Ibid., para. 49.

20 Ibid., paras. 51–57.

21 Ibid., paras. 58–60.

22 Ibid., paras. 61–73.

23 Cf. ibid., para. 62.

24 Ibid., paras. 63–65. In doing so, the Appeals Chamber referred to the definition of the European Court of Human Rights and the European Commission of Human Rights of a ‘cause of a charge’ as being ‘the acts [the accused] is alleged to have committed and on which the accusation is based’, and to their definition of the ‘nature’ of a charge as the legal characterization of these alleged acts.

25 Ibid., paras. 66–68.

26 Ibid., paras. 69–70.

27 Ibid., paras. 71–73.

28 Ibid., paras. 74–81.

29 Ibid., paras. 75–76.

30 Cf. ibid., para. 77.

31 Ibid., para. 78.

32 Ibid., para. 79.

33 Trial Chamber decision, paras. 8–11.

34 Ibid., para. 10.

35 Ibid., para. 9.

36 Cf. Damaška, M., ‘Atomistic and Holistic Evaluation of Evidence: A Comparative View’, in Clark, D. (ed.), Comparative and Private International Law: Essays in Honor of John Henry Merryman on His Seventieth Birthday (1990), 91, at 91, 92, 96Google Scholar; Rodrigues, A. and Tournaye, C., ‘Hearsay Evidence’, in May, R. et al. (eds.), Essays on the ICTY Procedure and Evidence (2001), 291, at 292–3Google Scholar.

37 Cf. K. Khan and R. Dixon, Archbold International Criminal Courts, Practice, Procedure and Evidence (2009), 697; see, e.g., US law that distinguishes between materiality and probative value as constituting elements of relevance and, ultimately, admissibility; Strong, J. (ed.), McCormick on Evidence, 4th edn (1992), 338Google Scholar; cf. Rule 401 of the US Federal Rules of Evidence that reads: ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

38 Cf. Damaška, supra note 36, at 91, 92, 96; Rodrigues and Tournaye, supra note 36, at 293.

39 Trial Chamber decision, para. 10, cited by the Appeals Chamber decision, supra note 1, paras. 13, 39.

40 Trial Chamber decision, para. 19, cited by the Appeals Chamber decision, supra note 1, paras. 16, 38.

41 Appeals Chamber decision, supra note 1, para. 62, paraphrasing the submissions of the accused.

42 Cf. Trial Chamber decision, para. 33.

43 Appeals Chamber decision, supra note 1, paras. 38–39.

44 Ibid., para. 38, footnote 89, referring to Trial Chamber decision, paras. 27–28.

45 Appeals Chamber decision, supra note 1, paras. 67–68, 70, 72–73.

46 Trial Chamber decision, para. 10, footnote 23, referring to Prosecutor v. Thomas Lubanga Dyilo, Decision on the Admissibility of Four Documents, Case No. ICC-01/04–01/06–1399, 13 June 2008 (hereafter, ‘Lubanga decision’), paras. 27, 28.

47 Lubanga decision, supra note 46, paras. 27–28, 34, compare also paras. 36, 41.

48 Ibid., para. 42.

49 Ibid., para. 33.

50 Trial Chamber decision, paras. 16–18.

51 This term, however, does not mean that civil-law systems are devoid of evidence rules; see C. Schuon, International Criminal Procedure: A Clash of Legal Cultures (2010), especially at 40–1, 47–8.

52 Cf. also the discussion of the Appeals Chamber, Appeals Chamber decision, supra note 1, paras. 36–37.

53 Trial Chamber decision, para. 16.

54 Ibid., paras. 10, 19.

55 Cf., e.g., Ambos, K., ‘International Criminal Procedure: “Adversarial”, “Inquisitorial”, or Mixed?’, (2003) 3 ICLR 1Google Scholar, at 19–20.

56 Prosecutor v. Jean-Pierre Bemba Gombo, Decision on Directions for the Conduct of the Proceedings, Case No. ICC-01/05-01/08-1023, 19 November 2010, para. 5.

57 Appeals Chamber decision, supra note 1, para. 37.

58 Trial Chamber decision, paras. 20 (especially footnote 31), 23–24.

59 Appeals Chamber decision, supra note 1, paras. 2–3, 51–57.

60 Ibid., paras. 3, 75–79.

61 Ibid., paras. 75–76.

62 Trial Chamber decision, para. 14 (emphasis in original).

63 Appeals Chamber decision, supra note 1, para. 76.

64 Ibid., para. 43. Submitting evidence for the purpose of admission outside a hearing is common practice at the International Criminal Tribunal for the former Yugoslavia by way of so-called written ‘bar table’ motions. Instead of many, see, e.g., Milan Milutinović et al., Decision on Lazarević Renewed Motion for Admission of Documents from the Bar Table, Case No. IT-05-87-T, 2 June 2008; Milan Lukić & Sredoje Lukić, Decision on Milan Lukić's Renewed Bar Table Motion, Case No. IT-98-32/1-T, 12 May 2009.

65 Appeals Chamber decision, supra note 1, para. 37.