Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models

Abstract

The purpose of this article is to examine some features of the International Criminal Court (hereinafter "ICC") procedural system, in particular the law of evidence, making use of theoretical models. The article first deals with the disclosure phase. Second, it focuses on the admission of evidence. To conduct the analysis, two widely known theoretical models, are employed: the accusatorial versus the inquisitorial model, and the Damaska partition between the reactive and proactive State. Despite its accusatorial structure, ICC provisions provide many important exceptions to the typical features of the accusatorial theoretical model. In particular, to uphold the values inherent in the international criminal justice system, the ICC Statute and Rules provide various exceptions to the prohibition against admitting unchallenged testimonial statements at trial. Additionally, in the disclosure phase, notwithstanding a parties-led general structure, procedural sanctions seem oriented towards leading the trial to a (possibly correct) conclusion on the merits, rather than merely punishing the misconduct of a culpable party.

The above exceptions make the system, considered as a whole, partially ineffective. The emerging picture is that the accusatorial structure of the processes in international criminal procedures was adopted by the drafters without effectively implementing all its specific technical consequences. The frequent exceptions to the technical solutions implied by this theoretical model put the fairness of the system in constant tension. This tension is reminiscent of two historical precedents: the 1808 Napoleon counter-reform and the Italian struggle for an accusatorial system. The price of the inconsistencies in the accusatorial structure, in most cases, seems to be paid by the defense, which is systematically disadvantaged. Some changes in the interpretation and application of the ICC sources concerning the law of evidence would be advisable in order to rectify certain inconsistencies.

Among them is a proposal for greater observation of the orality principle. To make this sustainable, it would be advisable to develop and improve the hermeneutic solution (originally conceived by the Ad Hoc Tribunals' jurisprudence), which is based on the partition between acts and conduct of the defendant, and other contextual aspects of the indictment.

Keywords: international criminal law, fair trial, law of evidence, international criminal court, equality of arms