LLM International and European Law

Thesis

“Does Amended Rule 68(2)(d) RPE ICC reconcile with fair trial guarantees provided by the International Criminal Court, in light of the problems of witness interference in International Criminal Law?”

Author: Andrew Merrylees

Public International Law Track

Supervisor: Göran Sluiter

Date of Submission: 6th July 2016

Page 1 of 66 Abstract In international criminal law there is a growing need to tackle the crippling effect that witness interference is having on the work of institutions such as the International Criminal Court (ICC). One of the measures available to combat such this problem is Amended Rule 68(2)(d) of the Rules of Procedure and Evidence of the ICC. This rule allows for written testimony, in lieu of oral testimony, where the witness has been interfered with to be used at trial. While this may help in countering the effects of witness interference by allowing an interfered with witness’s evidence to be admitted on to the record, in doing so it raises a number of concerns and issues with the accused’s fundamental fair trial guarantees. On face value it would appear that the use of Amended Rule 68(2)(d) undermines the principle of orality, the right to cross examination and the need to ensure that prejudicial evidence is excluded from the record, as laid down in Articles 69(2), 67(1)(e) and 69(4) of the Rome Statute respectively. It is this tension between the rights of the accused and need to combat the problem of witness interference which is encapsulated in Amended Rule 68(2) (d) that is the subject of this work, looking at whether Amended Rule 68(2)(d) reconciles with fair trial guarantees provided by the ICC, in light of the problem of witness interference. This thesis explores firstly the problem of witness interference and the inadequacy of existing mechanisms to combat witness interference at the ICC, introducing Amended Rule 68(2)(d) as a means to combat witness interference. Analysis and evaluation will then be devoted to whether this rule corresponds with certain fair trial guarantees for the accused, coming to the conclusion that Amended Rule 68(2) (d) can prejudice the accused’s right to fair trial. This thesis closes by questioning what weight (if any) can be given to the interests of fairness to other actors such as the Prosecution and victims to offset any prejudice to the accused caused by Amended Rule 68(2)(d), and offers Article 56’s “Unique Investigative Opportunity” an alternative. The thesis concludes by noting that Article 56 appears to be a more adequate means to combat the effects witness interference compared with Amended Rule 68(2)(d) given that it better adheres to the accused’s fair trial rights.

Page 2 of 66 Table of Contents Page

- Introduction 5 - 1: The Problem of Witness Interference in International Criminal Law 8 - 1.1: Definition and Overview of the Concept of Witness Interference in 8 International Criminal Law - 1.2: Witness Interference at the International Criminal Tribunals and Courts 10 - 1.2.1: Witness Interference at the ICTY 10 - 1.2.2: Witness Interference at the ICC 11 - 1.3: Protective Measures and Contempt Proceedings as a Means to Combat Witness 14 Interference? - 1.4: Amended Rule 68(2)(d) - “Bringing it back in-house” 16 - 2: Amended Rule 68(2)(d) and Fundamental Fair Trial Guarantees for the Accused 18 - 2.1: Amended Rule 68(2)(d), the Principle of Orality and the Introduction of 19 Liberal Rules of Evidence - 2.1.1: Principle of Orality and its changing position in International 19 Criminal Law - 2.1.2: The Erosion of the Principle of Orality - Rule 22 92bis RPE ICTY - 2.1.3: Taking the liberalistic trend too far? - Rule 92quater and Rule 23 92quinquies RPE ICTY - 2.1.4: Is it appropriate for the ICC to follow this liberalistic trend at the 25 ICTY? - 2.2: Amended Rule 68(2)d) and The Right to Cross Examination 28 - 2.2.1: The Importance and Scope of the Right to Cross Examination in 28 International Criminal Law - 2.2.2: The Right to Cross Examination and Evidence that Goes to the 29 Acts and Conduct of the Accused - 2.2.3: Have the Limitations on the Right to Cross Examination gone 31 too far? - 2.3: The Inherent Reliability of Evidence submitted under Amended Rule 34 68(2)(d) - 2.3.1: Admissibility Requirements at the ICC - Reliability of Evidence 34

Page 3 of 66 - 2.3.2: The Nature of Evidence under Amended Rule 68(2)(d) 35 - 2.3.3: The “Theoretical” Distinction between the Stages of 37 Admissibility and Weight: Issues with the Evidential Process - 2.4: Concluding Thoughts 39 - 3: Amended Rule 68(2)(d) and the Interests of Justice: Solutions and Alternatives 42 - 3.1: Amended Rule 68(2)(d) and Fairness to the Prosecution, Victims and 43 Witnesses: Rights vs Interests - 3.1.1: Fairness to the Prosecution? 43 - 3.1.2: Fairness to the Victims and Witnesses? 45 - 3.2: Amended Rule 68(2)(d) at a “Legal Crossroads” 47 - 3.3: Article 56 and the “Unique Investigative Opportunity” - An Alternative to 48 Amended Rule 68(2)(d) - 3.3.1: Article 56 as a means to combat Witness Interference 48 - 3.3.2: Benefits of the Unique Investigative Opportunity 49 - 3.3.3: Drawbacks of the Unique Investigative Opportunity 50 - 3.3.4: Concluding Thoughts on Unique Investigative Opportunity 52 - Conclusion 53 - Bibliography 55

Page 4 of 66 Introduction On the 5th April 2016, Trial Chamber V(a) filed its decision on the “no case to answer” motions in the case against William Ruto and Joshua Sang.1 In its decision the Chamber reluctantly2 terminated the case against the accused.3 This decision represented the final nail in the proverbial coffin for the “Kenya cases” at the ICC and is indicative of a problem that continues to plague international criminal law, namely that of witness interference. Witness interference has been seen in practically every international criminal institution4 and its existence can be traced back to the very first case at the ICTY.5 The effects that witness interference can have on a case can be grave and even prove fatal as demonstrated by the “Kenya cases”. Witnesses play a crucial role at trial, in providing key evidence they fuel the truth finding process of the court and embody some of the key building blocks on which a trial is built.6 When a witness is interfered with it can lead to them, inter alia, refusing to testify or recanting on the stand, and as a result a case can start to crumble due to the simple fact that without witnesses there can be no trials.7 Witness interference thus leads to continued impunity and frustrates the international criminal justice process, with courts being unable to fulfil their mandate, and the integrity and confidence in international criminal proceedings being compromised.8

The question then turns to, what can be done to combat this problem? At the ICC one of the potential solutions can be seen in Amended Rule 68(2)(d) of the Court’s Rules of Procedure and Evidence (RPE)9. It is this provision that is the subject of this work. Amended Rule 68(2)(d) provides a means to combat witness interference by allowing for the admission into evidence of

1 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, T.Ch, 5 April 2016. 2 Ibid, Reasons of Judge Eboe-Osuji, paras. 2, 3, 141, 156, 183.

3 Ibid, p. 1. 4 See: Chapter 1 below.

5 Specifically the case against Dusko Tadić. See: Marshall, “Balkans War Crimes Trial Opens: But Intimidation of Witnesses Hurts Prosecution's Case”, Montreal Gazette, 8 May 1996; Walker, “The Yugoslav War Crimes Tribunal: Recent Developments”, (1997) Whittier Law Review, Vol. 19, pp. 303-312(308); Lehnardt, “One Small Step for Women: Female-Friendly Provisions in the Rome Statute of the International Criminal Court”, (2002) Brigham Young University Journal of Public Law, Vol.16(2), pp. 317-354(325-326). 6 de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(714-715).

7 Ibid, pp. 710-714.

8 Ibid, p. 714. 9 Amended Rule 68(2)(d) Rules of Procedure and Evidence of the International Criminal Court (ICC), available at: https://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf [Last accessed 16 June 2016]. Page 5 of 66 prior written testimony, in lieu of oral testimony, where the witness has been subject to interference.10 In theory the rule thus helps alleviate the problem where a witness fails to testify, or recants due to interference, greatly weakening and undermining the Prosecution’s case. However, Amended Rule 68(2)(d) is a controversial provision and sits amongst a network of highly relevant legal provisions that regulate the admission of evidence before the ICC and guarantee the right to fair trial.11 On face value the rule appears to be somewhat at odds with these notions of fundamental fair trial rights and guarantees for the accused, which include, inter alia, the right of accused to cross examine evidence against them.12 This tension is also exacerbated by the fact that the rule also allows for evidence that goes to the proof of acts and conduct of an accused which could be argued to severely undermine an accused’s ability to answer the case against him/her.13

It is this overarching tension and competing interests which forms the focus of this thesis, exploring the research question of whether Amended Rule 68(2)(d) reconciles with certain fair trial guarantees provided by the ICC, in light of the problem of witness interference in international criminal law. In order to answer this question this work is split into three parts. The first chapter focuses firstly on the problem of witness interference itself, tracing its prevalence and describing its impact in international criminal law. This chapter looks at some of the measures available at the ICC to combat this issue introducing Amended Rule 68(2)(d) as one of these measures, and analyses what this rule seeks to accomplish in light of this problem. The author also indicates towards the end of this chapter that in pursuit of this aim the rule runs into issues with its legality in relation to the rights of the accused.

This leads on to the second chapter which forms the core of the thesis and analyses whether Amended Rule 68(2)(d) corresponds with certain fair trial guarantees at the ICC, specifically looking at the law relating to the admission of written statements in lieu of oral testimony in international criminal law. This chapter seeks to analyse specifically how Amended Rule 68(2)(d)

10 See: Amended Rule 68(2)(d) Rules of Procedure and Evidence ICC.

11 International Bar Association, “Rule 68 Amendment Proposal”, IBA ICC Programme Legal Opinion, 12 November 2013, p. 2 available at: http://www.ibanet.org/Document/Default.aspx?DocumentUid=6B68A33A-5D59-4C82- BE6A-327D44122D4E [Last accessed 16 June 2016].

12 See, inter alia: Article 14(e) International Covenant on Civil and Political Rights, available at: https://treaties.un.org/ doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf [Last accessed 16 June 2016]; Article 67(1) (e) of the Rome Statute of the International Criminal Court, available at: https://www.icc-cpi.int/nr/rdonlyres/ ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf [Last accessed 16 June 2016]. 13 Amended Rule 68(2)(d)(iv) Rules of Procedure and Evidence ICC. Page 6 of 66 corresponds with the principle of orality and the right to cross examination. The analysis closes by evaluating the general reliability of statements tendered under Amended Rule 68(2)(d) in light of how evidence is handled and processed in an international criminal trial.

The final chapter looks at Amended Rule 68(2)(d) from a different standpoint, analysing it in light of notions of fairness to the Prosecution, victims and the witnesses themselves. The analysis balances these interests in line with the fair trial rights of the accused. The chapter closes by looking at an alternative to Amended Rule 68(2)(d), namely the “unique investigative opportunity” under Article 56 of the Rome Statute and analyses whether this is preferable to Amended Rule 68(2)(d).

Page 7 of 66 Chapter 1 - The Problem of Witness Interference in International Criminal Law

It is widely accepted that the testimony of witnesses and victims is the best evidence available in that it allows the court to hear a first hand account of what happened during the commission of a crime.14 In essence, witnesses are “the human face of international criminal law”.15 Given their important role, witnesses can become targets for interference. This is not only dangerous on a personal level for the witnesses themselves, but also has severe ramifications for the integrity of the trial and the ability of a court to deliver justice in an accurate and impartial manner.16 The following chapter will provide a generally descriptive overview, look firstly at what specifically is meant by witness interference and the motivations behind it. There will then be some discussion that seeks to trace the problem of witness interference at the ICTY and the ICC, analysing its effects on the judicial process. In light of this discussion the chapter will subsequently analyse what measures there are available to combat the problem and introduce the role that Amended Rule 68(2)(d) plays in trying to counter the effects of witness interference.

1.1 - Definition and Overview of the Concept of Witness Interference in International Criminal Law Witness interference is a broad term that encapsulates a variety of different means by which a witness is tampered with. Primarily, witness interference comprises the situation where a witness, and/or their families, are intimidated through threats, both express and implicit.17 These threats can take a multitude of forms and can include intimidations, threats of personal injury, an economic and social character18 and death threats.19 However, witness interference is not limited to threats and there have been a number of instances where witnesses have been attacked and killed on account of

14 de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(701); Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp. 191-203(191).

15 Ibid, Cryer, p. 192. 16 Trotter, “Witness Intimidation in International Trials: Balancing the Need for Protection against the Rights of the Accused”, (2012) George Washington International Law Review, Vol. 44, pp. 521-537(521).

17 Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp191-203(192); de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(708).

18 Threats of an economic and social character can include, threats against property or loss of a job or stigmatisation within the community. See: Stover, “The Witnesses: War Crimes and The Promise of Justice in The Hague”, (2005), 2nd edition, University of Pennsylvania Press, p. 98. 19 de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(708). Page 8 of 66 them testifying before an international criminal tribunal.20 Nor is witness interference limited to acts of intimidation, it can also include situations of bribery or coercion21, and thus the term “interference”22 is preferred over “intimidation”. Witness interference can occur against any witness, whether they be for the Prosecution or the defence23, and can be committed by a multitude of actors, be it the accused themselves24, those loyal to the accused, legal counsel25, governmental forces26, the media27 etc.

The reasons and motivations behind witness interference may vary depending on the type of witness, however, arguably the ultimate effect is to force the witness into not testifying, recanting or even changing their testimony.28 In terms of Prosecution witnesses, this is arguably done with the aim of ensuring that there is no evidence against a particular accused or charge.29 Similarly, witness

20 BBC News, “Kenya ‘ICC defence witness’ in Ruto’s trial killed”, 6 January 2015, available at: http://www.bbc.com/ news/world-africa-30703876 [Last accessed 16 June 2016]; allafrica.com, “Kenya: Ocampo Witnesses Escape Death”, 5 January 2010, available at: http://allafrica.com/stories/201001050912.html [Last accessed 16 June 2016]; Amnesty International, “Croatia: Protect War Crimes Witnesses”, 10 February 2011, available at: https:// amnestyconcordia.wordpress.com/2011/02/10/take-action-croatia-protect-war-crimes-witnesses/ [Last accessed 16 June 2016].

21 See: ICC, Prosecutor v Paul Gicheru and Philip Kipkoech Bett, ICC-01/09-01/15, Decision on the “Prosecution's Application under Article 58(1) of the Rome Statute, PT.Ch, 10 March 2015; ICC, Prosecutor v Walter Osapiri Barasa, ICC-01/09-01/13, Warrant of arrest for Walter Osapiri Barasa, PT.Ch, 2 August 2013. 22 Rule 92quinquies Rules of Procedure and Evidence ICTY uses the term “improper interference” which it defines as relating to the “physical economic, property or other interest of the person or of another person”, available at: http:// www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev50_en.pdf [Last accessed 16 June 2016] (emphasis added); See also Amended Rule 68(2)(d)(i)(ii) Rules of Procedure and Evidence ICC and Article 70(1)(c) Rome Statute.

23 See: ICTR, Prosecutor v Simba, ICTR-01-76-T, Judgment, T.Ch, 13 December 2005, para. 41; ICTY, Prosecutor v Tadić, IT-94-I-T, Judgment, T.Ch, 7 May 1997, paras. 553-554. See also: Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp. 191-203(193 & 195) 24 See: SCSL, Independent Counsel v Bangura, Kargbo, Kanu and Kamara, SCSL-2011-2-T, Judgment in Contempt Proceedings, T.Ch, 25 September 2012; ICC, Prosecutor v Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean- Jacques Mangenda Kabongo, Fiedèle Babala Wandu & Narcisse Arido, ICC-01/05-01/13, Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute, PT.Ch, 11 November 2014, para. 97.

25 ICTY, Prosecutor v Rasić, IT-98-32/l-R77.2-A, Judgment, A.Ch, 16 November 2012. 26 The Kenya cases are a key example of this - ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, paras. 162-164; Office of the Prosecutor of the International Criminal Court, “Statement of the Prosecutor of International Criminal Court, Fatou Bensouda, on the status of the Government of Kenya’s cooperation with the Prosecution’s investigations in the Kenyatta case”, 5 December 2014, available at: https://www.icc-cpi.int/en_menus/ icc/press%20and%20media/press%20releases/Pages/otp-stat-04-12-2014.aspx [Last accessed 6 June 2016].

27 See: ICTY, Prosecutor v Margetić, IT-95-14-R77.6, Judgment on Allegations of Contempt, T.Ch, 7 February 2007, para. 94.

28 This may include testifying to events that did not occur or that a particular accused was not involved. See: de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(710-711). 29 Ibid, p. 711. Page 9 of 66 interference can be undertaken in order to create a hostile environment to dissuade others from also not coming forward to provide valuable evidence.30 In essence, witness interference is utilised as means to obstruct the administration of justice.

1.2 - Witness Interference at the International Criminal Tribunals and Courts In order to gain a clearer understanding of the grave effects of witness interference it is necessary to peruse some of the instances where it has occurred. Witness interference has been seen in practically every international criminal institution throughout the entire period of their respective existences.31 Due to its widespread nature it is not possible to undertake a full empirical study of witness interference32, and thus the following analysis will seek to trace a sample of some of the most notable instances of witness interference at two institutions, namely the ICTY and ICC.

1.2.1 Witness Interference at the ICTY Although, witness interference is by no means limited to the following cases33, the following two cases have been selected to demonstrate the extent of the damage that witness interference can have on a trial. It was the case of ‘Haradinaj et al’ which arguably saw some of most widespread and extreme practice of witness interference at the ICTY. Throughout the entire trial witness intimidation permeated the entire judicial process and the majority of the prosecution witnesses expressed extreme fear of giving evidence before the Trial Chamber with many refusing to testify.34 In the absence of sufficient evidence against them the accused were acquitted by the Trial Chamber, with the Chamber accepting that witness intimidation was so extreme as to give “a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe”.35 The acquittals attracted harsh criticism and the Appeals Chamber condemned the Trial Chamber for failing to “appreciate the gravity of the threat that witness intimidation posed to the trial’s

30 de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732(713).

31 Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp. 191-203(193). 32 Ibid, p. 193.

33 See, ICTY, Prosecutor v Limaj et al, IT-03-66-T, Judgment, T.Ch, 30 November 2005, para. 15; ICTY, Prosecutor v Boškoski and Tarčulovski, IT-04-82-T, Judgment, T.Ch, 10 July 2008, para. 14; ICTY, Prosecutor v Simić et al, IT-95-9- R77, Judgment in the Matter of Contempt Allegations against an Accused and his Counsel, T.Ch, 30 June 2000, para. 99.

34 ICTY, Prosecutor v Haradinaj et al, IT-04-84-T, Judgment, T.Ch, 3 April 2008, para. 28, (See also paras. 6 and 22). 35 Ibid, para. 6. Page 10 of 66 integrity”.36 The Appeals Chamber noted that this trial had taken place in a context that was plagued with an “unprecedented atmosphere of widespread and serious witness intimation”37 and thus given the gravity of interference in this case was forced to order a retrial.38

A similar example of the grave effects of witness interference was seen in the case against Vojislav Šešelj. Šešelj was convicted for contempt of tribunal for undermining the protection of witnesses three times39, and in March 2016 was acquitted of all charges.40 Judge Lattanzi dissented on all charges of acquittal bar one.41 In her dissent, Judge Lattanzi devoted an entire section exclusively detailing the “General Climate of Intimidation”.42 She condemned the Trial Chamber for not including this climate of intimidation to which Šešelj and others had subjected witnesses to in its analysis of the evidence.43 She argued that the Trial Chamber could have done better and taken into account the difficulties faced due to the behaviour of the accused in relation to witnesses and his obstruction of the procedure.44 She further noted that this climate of fear was also felt by the Chamber during testimony given in court.45 Although the Prosecution have announced their intention to appeal the majority decision46, the acquittal of Šešelj, as with Haradinaj, demonstrates how easily witness interference can frustrate the pursuit of justice.

1.2.2 - Witness Interference at the ICC At the ICC witness interference is arguably one of the greatest problems facing the Court in the fulfilment of its mandate. In the case against Jean-Pierre Bemba there were several allegations of

36 ICTY, Prosecutor v Haradinaj et al, IT-04-84-A, Judgment, A.Ch, 19 July 2010, para. 40.

37 Ibid, para 34.

38 Ibid, para 40. 39 For the third judgment see: ICTY, Prosecutor v Šešelj, IT-03-67-R77.4-A, Public Redacted Version of "Judgment" issued on 30 May 2013, A.Ch, 30 May 2013.

40 ICTY, Prosecutor v Šešelj, IT-03-67-T, Judgment, T.Ch, 31 March 2016 - (In French). 41 See: ICTY, Prosecutor v Šešelj, IT-03-67-T, Partially Dissenting Opinion of Judge Flavia Lattanzi, T.Ch, 31 March 2016 - (In French).

42 “Le Climat Général d’intimidation” - Ibid, p1. 43 Ibid, para. 7.

44 Ibid para. 3.

45 Ibid, para. 5. 46 Office of the Prosecutor MICT, “Statement by MICT Prosecutor Serge Brammertz Regarding Appeal of the Vojislav Šešelj Trial Judgment”, 6 April 2016, available at: http://www.unmict.org/en/news/statement-mict-prosecutor-serge- brammertz-regarding-appeal-vojislav-seselj-trial-judgement [Last accessed 16 June 2016]. Page 11 of 66 threats being made against prosecution witnesses and their families in connection with their testimony in court47, and some witnesses received death threats as a result of improper disclosure of their identities after testifying in closed session.4849

However, it is the Kenyan cases that are particularly illustrative of the devastating effects of witness interference at the ICC. As of April 2016, all proceedings brought against Kenyan individuals at the ICC for the post election violence in 2007 have been terminated, mainly due to the prevalence of witness interference. The first Kenyan case to fall foul to this problem was against Francis Muthaura. Following the recantation of a key prosecution witness, who had admitted to accepting bribes from persons allegedly holding themselves out as representatives of the accused, the Prosecutor decided to drop the charges.50 A similarly bleak scenario was also seen in the case against President Kenyatta, with the Prosecutor being forced to withdraw the charges against Kenyatta in December 2014.51 She noted that the course of justice had been severely obstructed in the case and that several people who may have provided important evidence were too terrified to testify.52

The final blow in the Kenyan cases came with the termination of charges in the case against William Ruto and Joshua Sang. Following the loss of Prosecution evidence due to witness recantation the Trial Chamber decided that there was no case to answer and was forced to vacate the charges against the accused.53 Throughout the trial there was vast evidence of witness interference

47 ICC, Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Public Redacted Version of the 26 September 2011 Decision on the Accused’s Application for Provisional Release in Light of the Appeals Chamber’s Judgment of 19 August 2011, T.Ch, 27 September 2011, para. 29. 48 Ibid, para. 30.

49 In September 2015, contempt proceedings under Article 70 of the Rome Statute were brought against Bemba and several co-accused at the ICC on allegations of, inter alia, bribing witnesses - ICC, Prosecutor v Jean Pierre Bemba Gombo, Kilolo, Mangenda et al, ICC-01/05-01/13. 50 ICC, Prosecutor v Francis Yirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11, Prosecution notification of withdrawal of the charges against Francis Yirimi Muthaura, 11 March 2013, para. 11.

51 ICC, Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11, Notice of Withdrawal of the charges against Uhuru Muigai Kenyatta, 5 December 2014.

52 Office of the Prosecutor of the International Criminal Court, “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta”, 5 December 2014, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp- statement-05-12-2014-2.aspx [Last accessed 16 June 2016]. 53 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, T.Ch, 5 April 2016, p. 1. Page 12 of 66 against Prosecution witnesses54, with the Prosecution presenting almost 2000 pages of evidence on witness tampering during the case.55 In his reasons for terminating the case against Ruto and Sang, Presiding Judge Eboe-Osuji provided a strongly worded condemnation of the witness interference in the case.56 He noted that there was “serious tainting of the trial process by way of witness interference and political intimidation”.57 He further categorically refused to enter a finding of acquittal feeling that given the extent of the evidence of interference, feeling it would be “grossly unjust” to do so.58 Instead Judge Eboe-Osuji declared that the case should result in a “mistrial”, something not specifically provided for under the Rome Statute.59 The legality of this new concept in international criminal law aside, the fact that the Trial Chamber departs from existing precedent on "no case to answer” motions and creates this new concept of a “mistrial” demonstrates the extreme problem of witness interference in these case and the pressing need felt by the Court to do something about it.60 Judge Eboe-Osuji criticised the Kenyan government and various other actors, such as the media, for creating an “atmosphere of intimidation”61, which had indirectly led to witnesses becoming unwilling to testify and withdrawing from the case.62 What is notable about this case is that it was acknowledged by the Court that the state itself was responsible at different levels for the witness interference.63 The Kenyan cases proceeded against individuals who possessed vast

54 Human Rights Watch, “ICC: Kenya Deputy President’s Case Ends”, 5 April 2016, available at: https://www.hrw.org/ news/2016/04/05/icc-kenya-deputy-presidents-case-ends [Last accessed 16 June 2016]; BBC News, “Claims of witnesses in Kenya ICC trial ‘disappearing’”, 8 February 2013, available at: http://www.bbc.com/news/world- africa-21382339 [Last accessed 11 April 2016]; BBC News, “Kenya’s William Ruto trial: ICC judge warns bloggers”, 18 September 2013, available at: http://www.bbc.com/news/world-africa-24151392 [Last accessed 16 June 2016]. Journalists for Justice, “Bribery, intimidation of witnesses undermines justice for victims”, 6 April 2016, available at: http://www.jfjustice.net/en/icc-cases/bribery-intimidation-of-witnesses-is-undermines-justice-for-victims [Last accessed 16 June 2016]; Momanyi & Jennings, “Kenya Witnesses Face Harrassment” Institute for War & Peace Reporting, 5 June 2013, available at: https://iwpr.net/global-voices/kenya-witnesses-face-harassment [Last accessed 16 June 2016]

55 ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Separate, Partly Concurring Opinion of Judge Eboe-Osuji on the ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, T.Ch, 19 August 2015, para. 6. 56 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 201, pp. 57 et seq.

57 Ibid, para. 2. 58 Ibid, para. 131.

59 Ibid, paras. 187-192. 60 Kersten, Smith & Andristyak, “Intimidated Witnesses, ICC Judges, and ‘Justice’ - Mission Creep or a Revolution Long Overdue?”, 2 June 2016, available at: https://justiceinconflict.org/2016/06/02/intimidated-witnesses-icc-judges- and-justice-mission-creep-or-a-revolution-long-overdue/ [Last accessed 16 June 2016].

61 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, para. 142.

62 Ibid, para. 178. 63 Ibid, paras. 161-166, 170-173. Page 13 of 66 political power, being the respective heads of government, and it was noted by Judge Eboe-Osuji that the Kenyan government used this power to tamper with the judicial process.64 The Kenyan cases are devastating examples of the crushing effects that witness interference can have on an international criminal trial, and highlight specifically that where the state backs or is responsible for campaigns of witness interference then impunity is most likely to follow.

1.3 - Protective Measures and Contempt Proceedings as a Means to Combat Witness Interference? This sampling of jurisprudence is a clear demonstration that witness interference is an overwhelming problem that is severely hindering the basic functioning of international criminal tribunals and that there is increasing recognition that something needs to be done about it. This leads to the question of what means do these institutions have to combat witness interference?

The ad hoc tribunals and ICC all provide some form of protective measures for witnesses such as restrictions on disclosure of identifying information through redaction on transcripts or court records; the use of pseudonyms; facial and voice distortion; as well as holding hearings in closed session or via video link.65 However, while protective measures may be entirely logical on paper, in reality they arguably do not work in practice. While protective measures are good in theory they ultimately are ineffective due to the fact that international criminal courts and tribunals operate in a disaggregated system and lack enforcement capacity on the ground.66 Given their lack of enforcement powers protective measures issued by international courts simply cannot translate into effective protection.67 There is no police force to enforce the protective measures, and the courts have rely on the goodwill of states to ensure that orders for protection are carried out and adhered to.68 This can inevitably render protective measures ineffective, especially if the state or government are themselves the alleged perpetrators, as seen in Kenya.69 A state is unlikely to ensure the

64 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, paras. 161-166, 170-173.

65 See: Article 22 ICTY Statute, available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf [Last accessed 16 June 2016]; Rules 67, 75 and 79 Rules of Procedure and Evidence ICTY; Article 68 Rome Statute; Rules 87 and 88 Rules of Procedure and Evidence ICC. See also: Schabas, “The International Criminal Court: A Commentary on the Rome Statute”, 2010, 1st edition, Oxford University Press, pp. 824-827. 66 Cryer, “Witness Tampering and International Criminal Tribunals”, (2014), Leiden Journal of International Law, Vol. 27, pp. 191-203(199).

67 Ibid, p. 199.

68 Ibid. 69 Ibid, p. 202. Page 14 of 66 operationalisation of protective measures if they themselves have an interest in identifying those witnesses and affecting their testimony.70 This is exacerbated by the fact that these tribunals predominantly operate in conflict/post conflict situations where the security situation will be fragile and volatile.71

In addition to protective measures there is also the ability to resort to contempt proceedings under Rule 77 RPE ICTY and Article 70 of the Rome Statute respectively. These provisions represent one of the means to safeguard the integrity of proceedings at the ICTY and ICC from offences against the administration of justice, such as witness interference.72 As demonstrated above the effects that witness interference can have on a trial can be grave, however, it can also bring the Court itself into disrepute as it undermines its ability to deliver justice.73 In relation to the ICC, Article 70 provides a means to combat witness interference and prosecute those who seek to undermine the administration of justice by engaging in this practice.74 However, contempt proceedings under Article 70 are reactive measures, after the interference has already taken place and the damage is done. Although contempt proceedings may serve as a deterrent for future perpetrators75 they cannot necessarily counter the derailing effects of witness interference in the main case at hand given that the interference has already happened. This is evidenced by the case against Šešelj who, as noted, was convicted for contempt of tribunal three times but still acquitted by the Trial Chamber.76 Similarly, it was noted in the decision terminating the charges against Ruto/Sang that contempt proceedings are separate from the main proceedings and that they have limited bearing on the evidentiary analysis of the main case at hand.77 Thus, given the “lack of tools in their armoury”78 to

70 Cryer, “Witness Tampering and International Criminal Tribunals”, (2014), Leiden Journal of International Law, Vol. 27, pp. 191-203(202). 71 Ibid, p. 199.

72 Hiéramente, Müller & Ferguson, “Barasa, Bribery and beyond: Offices against the Administration of Justice at the International Criminal Court”, (2014) International Criminal Law Review, pp. 1123-1149(1140). 73 ICC, Prosecutor v Jean Pierre Bemba Gombo, Kilolo, Mangenda et al, ICC-01/05-01/13, Prosecutor’s Opening Remarks at Trial, T.Ch, 29 September 2015, p. 1.

74 Ibid, p. 3. 75 Hiéramente, Müller & Ferguson, “Barasa, Bribery and beyond: Offices against the Administration of Justice at the International Criminal Court”, (2014) International Criminal Law Review, pp1. 1123-1149(1140).

76 See discussion above at 1.2.1.

77 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, para. 193. 78 Cryer, “Witness Tampering and International Criminal Tribunals”, (2014), Leiden Journal of International Law, Vol. 27, pp. 191-203(203). Page 15 of 66 counteract the problems of witness interference, the question still remains, what can be done to counteract witness interference?

1.4 - Amended Rule 68(2)(d) - “Bringing it back in house” It is this key question that brings us to the core of this work. Given the lack of enforcement discussed previously it is quite clear that it is impossible for international courts to stop witness interference, it is too vast a problem. Therefore, seeing that it is unlikely that the enforcement capabilities of the international criminal tribunals, specifically the ICC, will increase any time soon one of the only ways to respond to this problem is bring the issue “back in house”. What one means by this is to respond to this absence of enforcement powers by dealing with the problem where the courts actually have power, namely within the courtroom in relation to rules of evidence. This brings us to Amended Rule 68(2)(d) RPE ICC. In 2013, at the twelfth session of the Assembly of States Parties to the ICC, the Assembly adopted a Resolution amending Rule 68 of the ICC’s Rules of Procedure and Evidence.79 Originally emanating from the Court itself80, the Assembly’s “Working Group on Lessons Learnt” advocated that the admissibility for prior recorded testimony under Rule 68 be expanded to allow, inter alia, such evidence to be admitted where the witness has been interfered with.81 Under unamended Rule 68 it was not possible to introduce such evidence unless strict requirements had been met. For example, such testimony could only be allowed if both the Prosecution and the defence had had the opportunity to examine the witness during the recording.82 However, under Amended Rule 68 the Court can now introduce prior recorded testimony that it would not have otherwise been able to consider. Specifically, Amended Rule 68(2) (d) now allows for the admission into evidence of such testimony where “the person has failed to attend as a witness or having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony”.83 Most controversially, however, Amended Rule

79 Resolution ICC-ASP/12/Res.7 - Amendments to the Rules of Procedure and Evidence, 27 November 2013, available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdf [Last accessed 16 June 2016]. 80 Assembly of States Parties, “Report of the Working Group on Amendments”, ICC-ASP/12/44, 24 October 2013, para. 8 , available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-44-ENG.pdf [Last accessed 16 June 2016].

81 Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, para. 32, available at: https://asp.icc-cpi.int/iccdocs/ asp_docs/ASP12/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016].

82 Old Rule 68 Rules of Procedure and Evidence ICC, available at: https://www1.umn.edu/humanrts/instree/ iccrulesofprocedure.html [Last accessed 16 June 2016]. 83 Amended Rule 68(2)(d)(i) Rules of Procedure and Evidence ICC. Page 16 of 66 68(2)(d) now allows for the admission of prior recorded testimony that goes to “proof of acts and conduct of an accused”.84

This amendment is not the first of its kind, in 2009 the ICTY introduced a new rule into its RPE which is almost identical to, and indeed was the basis for Amended Rule 68(2)(d).85 Rule 92quinquies RPE ICTY allows a written statement or transcript, in lieu of oral testimony, to be admitted into evidence where that person has been subjected to improper interference, and specifically allows for the admission of such evidence that goes to to acts and conduct of the accused.86 The ICTY is not alone in this provision, the ICTR also provides for something similar in Rule 71bis(O)(iii)(iv) RPE ICTR. This rule allows for a special deposition to be admitted into evidence where its probative value is not outweighed its prejudicial effect, and where the witness is unwilling to testify following threats or intimidation.87

By amending Rule 68 the ICC tackles the issue of witness interference in the only way it can, by altering its own rules of procedure and evidence to counteract its effects and thus allowing a witness’s written statement to be used instead of their oral testimony. In altering its RPE the ICC has somewhat responded to the deficiency in terms of enforcement powers and changes the “rules of the game” where it can. However, by altering the rules in this way Amended Rule 68(2)(d) now allows for increased written testimony, which can go to the acts of the accused. This begs the question as to whether in amending Rule 68 in this way, has the ICC overstepped its boundaries?

84 Amended Rule 68(2)(d)(iv) RPE ICC.

85 Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, paras. 3, 21 & fn. 26, available at: https://asp.icc- cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016].

86 See: Rule 92quinquies Rules of Procedure and Evidence ICTY. 87 See: Rule 71bis(O)(iii) Rules of Procedure and Evidence ICTR, available at: http://unictr.unmict.org/sites/unictr.org/ files/legal-library/150513-rpe-en-fr.pdf Page 17 of 66 Chapter 2 - Amended Rule 68(2)(d) and Fundamental Fair Trial Guarantees for the Accused

The use of Amended Rule 68(2)(d) has only been attempted once by the ICC since its introduction, namely in the case against William Ruto and Joshua Sang, with the Appeals Chamber ultimately holding that it could not apply due to the fact that the rule had been introduced after the case had commenced and was thus applied to the detriment of the accused.88 The legal discussion in Ruto/ Sang predominantly revolved around this issue of retroactivity, and did not really touch upon whether the rule was unlawful per se. However, it was noted by the Appeals Chamber that the rule did stretch the exceptions to the principle of orality, with the Chamber drawing attention to the “negative impact that depriving the accused of the opportunity to challenge evidence can have on the fairness of the proceedings”.89 These observations arguably beg the larger question of whether Amended Rule 68(2)(d) fails to reconcile with fundamental guarantees to fair trial laid down in international criminal law, and thus could be deemed unlawful.

These fundamental guarantees to fair trial can be found in the Rome Statute and the ICC's RPE and form part of a complex network of principles and rights regulating the admission of evidence in international criminal law.90 These principles comprise and regulate a variety of different yet interconnected interests, ranging, inter alia, from the principle of orality91, to the right to cross examination92, to the overall concern in ensuring that evidence is reliable, probative and relevant93. These principles are interconnected by the common strand that they all aim to ensure that the admission of particular piece of evidence does not prejudice an accused’s right to fair trial.

This chapter will seek to analyse whether evidence admitted under Amended Rule 68(2)(d) RPE ICC corresponds with this legal framework looking closely at the developments and jurisprudence

88 ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Judgment on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recored Testimony”, A.Ch, 12 February 2016, para. 95.

89 Ibid, paras. 94-95. 90 Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 446.

91 See: Article 69(2) Rome Statute.

92 See: Article 67(1)(e) Rome Statute. 93 See: Article 69(4) Rome Statute. Page 18 of 66 in relation to the use of prior written statements in lieu of oral testimony. The chapter will be split into three sub chapters tracing the legality of Amended Rule 68(2)(d).

The first sub chapter will analyse the overall importance of the principle of orality, enshrined in Article 69(2) of the Rome Statute, and trace how the principle has been steadily eroded through the introduction of a trend liberalising the rules of evidence, such as Amended Rule 68(2)(d). The analysis with question the legitimacy of this trend, the impact it has on the legality of Amended Rule 68(2)(d) and the link with the issue of expediency in international criminal law.

The second sub chapter, in light of the previous discussion on the erosion of orality, will discuss specifically whether the rule corresponds with the right to cross examination laid down in Article 67(1)(e) of the Rome Statute, looking at various jurisprudence elucidating the parameters of the right. The sub chapter will then question and evaluate whether the limitations on the right to cross examination imposed by Amended Rule 68(2)(d) go too far in light of the need to ensure that evidence does not prejudice an accused’s right to fair trial.

The final sub chapter then questions, given the limitations on the right of cross examination, whether evidence admitted under Amended Rule 68(2)(d) can still be deemed reliable for use at trial, as required by Article 69(4) of the Rome Statute and the rule itself. This section will look closely at the type of evidence admitted under Amended Rule 68(2)(d) and evaluate its general reliability. It will further evaluate and question whether the reality of the international criminal process in relation to the admission and processing of evidence results in a situation where the admission of evidence under Amended Rule 68(2)(d) will always be unfair to the accused.

2.1 - Amended Rule 68(2)(d), the Principle of Orality and the Introduction of Liberal Rules of Evidence

2.1.1 - Principle of Orality and its changing position in International Criminal Law Article 69(2) of the Rome Statute provides that “the testimony of a witness at trial shall be given primarily in person”. This provision illustrates the preference for oral testimony at the ICC and that testimonial evidence shall in principle be given in person rather than in writing.94 International

94 Gosnell, “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 413. Page 19 of 66 criminal procedure has traditionally enshrined the principle for orality and it plays a key part in the presentation of evidence in international criminal proceedings. At the ICC, it has been noted on numerous occasions by the Court that there is a “primacy of orality” in the presentation of evidence95, and it has been expressed at the ICTY that there is “a strong preference that…important evidence central and critical to the case be elicited orally from a witness”.96 The principle is grounded in the need to ensure the adversarial nature of the criminal trials and the right of the accused to answer the case against him or her.97 Similarly, Article 74(2) of the Rome Statute highlights that judgments must be based “only on evidence submitted and discussed before it at trial” which implies that a first hand impression of evidence is decisive. The wording “and discussed” connotes orality in that evidence should be discussed orally in open court.98

At first glance Amended Rule 68(2)(d) is clearly at odds with the principle of orality given that it allows evidence in written form. However, Article 69(2) of the Rome Statute also provides that in addition to the testimony of a witness given at trial, the use of recorded testimony is permissible99, with Rule 68 RPE supplementing Article 69(2) by providing for the instances where prior recorded testimony is admissible at trial.100 This allowance for written testimony is indicative of a shift away from orality that began at the ICTY. Rule 90(A) RPE ICTY which read that “witnesses shall, in principle, be heard directly by the Chamber”101 was deleted in December 2000102 and replaced with Rule 89(F) which reads that “a chamber may receive the evidence of a witness orally or, where the

95 This has been noted in some of the most recent decisions before the ICC. See, inter alia, ICC, Prosecutor v Bosco Ntaganda, ICC-01/04-02/06, Decision on Prosecution request seeking the admission of the medical report related to Witness P-0790, T.Ch, 9 May 2016, para. 14; ICC, Prosecutor v Laurent Gbagbo & Charles Blé Goudé, ICC-02/11-01/15, Decision on the Prosecution’s request to designate a person authorised to witness a declaration under Rule 68(2)(b) of the Rules, T.Ch, 21 October 2015, para. 7.

96 ICTY, Prosecutor v Gotovina et al, IT-06-90-T, Judgment, T.Ch, 15 April 2011, para. 16. 97 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p.819.

98 Klamberg, Evidence in International Criminal Trials - Confronting Legal Gaps and the Reconstruction of Disputed Events, 1st edition, 2013, Martinus Nijhoff Publishers, p. 368. 99 Article 69(2) reads - “The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence.”.

100 Gosnell, “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, pp. 414-415.

101 See: Rule 90(A) Rules of Procedure and Evidence of the ICTY, IT/32/Rev.18, 2 August 2000, available at: http:// www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev18_en.pdf [Last accessed 16 June 2016]. 102 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p.760. See also: McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(971). Page 20 of 66 interests of justice allow, in written form”.103 Alongside this deletion at the ICTY there has also been an introduction of a variety of additional provisions, as will be discussed below, allowing for increased use of prior written testimony such as written statements and transcripts in lieu of oral testimony.104 The ICC recently replicated these amendments in its own RPE in 2013.105 This move away from orality towards more written testimony was due to a variety of reasons predominantly relating to concerns as to lengths of trials and the scale of international criminal cases.106 These are of course legitimate concerns given that international criminal trials can last several years with delayed justice sometimes leading to no justice at all, as evidenced by the case against Slobodan Milošević.107 In light of this trend Amended Rule 68(2)(d) RPE ICC could be regarded as the latest in a long line of rule amendments which have downgraded the principle of orality from being an absolute restriction to a mere preference for oral evidence.108 However, this trend, which places expediency over a principled approach to the admission of evidence and the ability of the accused to challenge the evidence against him or her, is arguably insufficient to support the rule’s legality, as will be evidenced below.

103 See Rule 89(F) Rules of Procedure and Evidence of the ICTY, IT/32/Rev.50, 8 July 2015, available at: http:// www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev50_en.pdf [Last accessed 16 June 2016] (emphasis added).

104 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(971-973). 105 Resolution ICC-ASP/12/Res.7 - Amendments to the Rules of Procedure and Evidence, 27 November 2013, available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdf [Last accessed 16 June 2016]

106 Rohan, “Rules Governing the Presentation of Testimonial Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 522; Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 825&847; ICTY, Prosecutor v Prlić et al, IT-04-74-AR73.6, Decision on Appeals against decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, A. Ch, 23 November 2007, para. 43; ICTY, Prosecutor v Krajišnik, IT-00-39-T, Judgment, T.Ch, 27 September 2006, para. 1199.

107 The case at the ICTY against the former President of Serbia was terminated on 11 March 2006 due to the death of the accused. He had been on trial since 2001 and his death was met with extreme frustration with criticism being launched at the length of his trial - See: Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(542); O-Gon Kwon, “The Challenge of an International Criminal Trial as Seen from the Bench”, (2007) Journal of International Criminal Justice, Vol. 5, pp. 360-376(360-361); Bell, “Justice Delayed is Justice Denied”, The Guardian, 22 July 2008, available at: http://www.theguardian.com/commentisfree/2008/jul/22/ radovankaradzic.warcrimes3 [Last accessed 16 June 2016]; MacCarrick, “Lessons from the Milosevic Trial”, Global Policy Forum, 26 April 2006, available at: https://www.globalpolicy.org/component/content/article/163/29362.html [Last accessed 16 June 2016]. 108 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 819. Page 21 of 66 2.1.2 - The Erosion of the Principle of Orality - Rule 92bis RPE ICTY It was in Tadić that written statements comprising hearsay were first ruled admissible at the ICTY, with there being a presumption favouring admissibility at the tribunal.109 This was tempered somewhat by the ICTY’s preference for orality in Rule 90(A), with many Trial Chambers recognising the need to uphold the orality of debates in the courtroom.110 However, it was in 2001, that the ICTY laid down codified provisions eroding the principle of orality in international criminal procedure with the deletion of Rule 90(A) and the introduction of Rule 92bis RPE ICTY, which has been somewhat replicated at the ICC in Rule 68(2)(b). Pursuant to Rule 92bis a Trial Chamber may admit a witness statement in lieu of oral testimony which goes to the proof of a matter other than the acts of the accused.111 The fact that Rule 92bis cannot be used to submit evidence that goes to the acts and conduct of the accused is important as it indicates a key consideration behind the move from oral testimony to written testimony. The ICTY Appeals Chamber in ‘Galić’ held that Rule 92bis was “primarily intended to be used to establish…‘crime base’ evidence”112, namely evidence that is generally of a cumulative nature about the broader crimes at issue.113 The fact that it was envisaged that Rule 92bis was to be used for more contextual type of evidence, and not pivotal evidence that goes to the heart of the prosecution’s case, raises questions of whether Amended Rule 68(2)(d) goes too far. Amended Rule 68(2)(d)(iv) allows admission of written statements that go to the acts and conduct of the accused114 and thus it could be argued that the rule stretches the boundaries of fairness given that early jurisprudence indicates that pivotal evidence to a party’s case should still be held orally.115 It was noted by Judge Hunt in ‘Milošević’, citing the Appeals Chamber in ‘Galić’, that evidence that goes to the proof of the acts and conduct of the accused was regarded as a matter of particular sensitivity when the decision to adopt Rule 92bis was taken.116 He

109 ICTY, Prosecutor v Tadić, IT-94-1-T, Decision on Defence Motion on Hearsay, T.Ch, 5 August 1996, para. 7.

110 See, inter alia: ICTY, Prosecutor v Kvočka et al, IT-98-30/1-T, Oral Decision on the Admissibility of Prior out-of- court statements, T.Ch, 4 July 2000, Transcript 3510-3514; ICTY, Prosecutor v Kordić & Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding the Statement of a Deceased Witness, A.Ch, 21 July 2000, paras. 19 & 21. 111 See: Rule 92bis Rules of Procedure and Evidence of the ICTY.

112 ICTY, Prosecutor v. Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis (C), A.Ch, 7 June 2002, para. 16. 113 Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, pp. 451&463.

114 See: Amended Rule 68(2)(d)(iv) Rules of Procedure and Evidence ICC.

115 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 848. 116 ICTY, Prosecutor v Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement, A.Ch, 21 October 2003, paras. 7-8. Page 22 of 66 expressed that the risk of prejudice to the accused was great and argued that the principle of orality was still paramount for evidence going to the acts of the accused so that proceedings are fair and the accused can challenge pivotal evidence against him.117 As a result written statements going to the acts and conduct of the accused are deemed inadmissible under Rule 92bis.118 Similarly it was noted by the Appeals Chamber in ‘Prlić’ that while Rule 92bis did place some restrictions on the admissibility of hearsay evidence by not allowing evidence that goes to the acts and conduct of the accused, it did so as to “make trials more expeditious, while not preventing examination and cross examination of the witness as such.”119 Amended Rule 68(2)(d) clearly conflicts with this initial reasoning behind the use of written statements given that it allows the admission of untested hearsay evidence that goes to the acts of the accused. Amended Rule 68(2)(d) takes the trend allowing for written statements in a direction which does not correspond with the initial justifications for allowing written statements in the first place, which could therefore be argued to undermine the rule’s ability to rely on this trend to justify its legality.

2.1.3 - Taking the liberalistic trend too far? - Rule 92quater and Rule 92quinquies RPE ICTY However, the liberalising of the rules of evidence does not end with Rule 92bis. In 2006 and 2009 the ICTY adopted Rule 92quater120 and Rule 92quinquies121, which have been replicated almost verbatim at the ICC in Rules 68(2)(c)&(d) respectively122. These rules are more permissive compared with Rule 92bis in that they allow written statements to be admitted that go to the proof of the acts and conduct of the accused as charged in the indictment.123 Rule 92quater allows for the admission of written statements of deceased witnesses and Rule 92quinquies allows for the admission of statements of person subject to witness interference. The latter is thus very similar to

117 ICTY, Prosecutor v Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement, A.Ch, 21 October 2003, para. 17; ICTY, Prosecutor v. Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis (C), A.Ch, 7 June 2002, para. 13. 118 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 848.

119 ICTY, Prosecutor v Prlić et al, IT-04-74-AR73.6, Decision on Appeals against decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, A. Ch, 23 November 2007, para. 43. 120 Rule 92quater, Rules of Procedure and Evidence of the ICTY, IT/32/Rev.39, 22 September 2006, available at: http:// www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev39_en.pdf [Last accessed 16 June 2016]

121 Rule 92quinquies, Rules of Procedure and Evidence of the ICTY, IT/32/Rev.44, 10 December 2009, available at: http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_rev44_en.pdf [Last accessed 16 June 2016]

122 See: Rule 68(2)(c)&(d) Rules of Procedure and Evidence of the ICC. 123 Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 473. Page 23 of 66 Amended Rule 68(2)(d) given they both deal with the same situation.124 The drafters of Amended Rule 68(2)(d) referred heavily to Rule 92quinquies in drawing up the rule, noting that Rule 92quinquies demonstrated an increased trend allowing for written testimony to be admitted at trial.125 It could be argued that in light of this the rule serves as a form of legal basis for Amended Rule 68(2)(d) at the ICC.126 Amended Rule 68(2)(d) could simply be regarded as another contribution to this increasing trend moving away from orality, expanding the avenues of admissibility of written statements in international criminal procedure. However, Rule 92quater and 92quinquies have been met with significant concern and criticism which could point to the fact that this liberalistic trend increasing the possibilities for the admission of written testimony has perhaps gone too far.127

In its 7 year existence, Rule 92quinquies has never been utilised by any party before the ICTY.128 Given that this isn’t due to a lack of witness interference, as evidenced in Chapter 1 of this work, this could point to perceived issues with the legality of these rules. This is further evidenced by the fact that Rule 92quinquies has not been replicated in the RPEs of the ICTR nor the SCSL.129 Rule 92quinquies and 92quater now allow for the wholesale admission of statements in lieu of oral testimony even in situations where cross examination is a clear impossibility.130 Rule 92quinquies and 92quater represent a clear undermining of the safeguard of orality in that they all allow for

124 This is expressly noted by the drafters of Amended Rule 68(2)(d) - See: Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add. 1, 31 October 2013, fn 26, available at: https://www.legal-tools.org/uploads/tx_ltpdb/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016]. 125 Ibid, paras. 3-6, 31.

126 This was argued by the Prosecution in the Ruto/Sang case - ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Public Redacted Version of “Prosecution’s Consolidated Response to the Appeals of Mr Ruto and Mr Sang against the ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, A.Ch, 3 November 2015, paras. 112, 216. 127 Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 474; McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(981); Caianiello, “First Decisions on the Admission of Evidence at ICC Trials - A Blending of Accusatorial and Inquisitorial Models?” (2011) Journal of International Criminal Justice, Vol. 9, pp. 385-410(407-410); Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, pp. 297-304.

128 Ibid, McDermott, p. 981; Ibid, Rohan, p. 302; de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015), International Criminal Law Review, Vol. 15, pp. 700-732(707).

129 Ibid, McDermott, p. 977. 130 Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 474. Page 24 of 66 evidence that goes directly to the acts and conduct of the accused, which can effectively prove or disprove the accused’s acts as charged, without the opportunity to challenge.131 Rule 92quinquies arguably represents the greatest encroachment on the principle of orality to date at the ICTY given that the rule allows for the admission of statements of living witnesses, whereas Rule 92quater is essentially restricted to the deceased.132 The erosion of orality by these rules represents an arguably impermissible encroachment on the fairness of the proceedings, taking the liberalistic trend allowing for written evidence in international criminal law too far.133

2.1.4 - Is it appropriate for the ICC to follow this liberalistic trend at the ICTY? It would appear in light of the preceding discussion that these newer rules of evidence at the ICTY carry their own concerns as to legality. However, regardless of this, one would question whether the ICC following this liberalistic trend at the ICTY and replicating rules such as 92quinquies in the form of Amended Rule 68(2)(d) is even appropriate.

The ICC still maintains its preference for oral testimony in Article 69(2), while the ICTY has abandoned such a preference.134 This limits the weight that can be given to the argument that Amended Rule 68(2)(d) can rely on the liberalistic trend at the ICTY to support its legality. Rule 68 in its unamended form arguably corresponded better to the primacy of orality at the ICC in that it only allowed written testimony to be admissible in two instances.135 Firstly, where both parties had a chance to examine the witness during recording of the statement136 or secondly, where the witness

131 Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 298; Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 474.

132 Ibid, Nerenberg & Timmerman, p. 474. 133 Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 297; O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(535).

134 Contrast Article 69(2) Rome Statute with Rule 89(F) Rules of Procedure and Evidence of the ICTY.

135 See Unamended Rule 68 Rules of Procedure and Evidence ICC; Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, pp. 303-304. 136 Unamended Rule 68(a) Rules of Procedure and Evidence ICC. Page 25 of 66 was available at trial.137 In both instances the principle of orality was upheld due to the fact that Rule 68 would only for admission where the witness had/could be heard orally in some form. The new amendments to Rule 68, such as Amended Rule 68(2)(d), arguably go against the ICC’s preference for orality in that they now allow for untested written statements that go to the acts and conduct of the accused, which is not subject to the safeguards of oral testimony in court. Similarly, it is also worth noting that the ICTR, which like the ICC also retained its preference for orality, has only adopted an equivalent of Rule 92bis and has not adopted an equivalent of Rule 92quinquies.138

Furthermore as mentioned at the outset of this sub chapter, one of the main reasons behind this trend allowing for increased instances of written testimony was due to issues with expediency, and indeed this was the main motivation behind the amendment of Rule 68 at the ICC.139 The length of international criminal trials is a problem and there is a pressing need for courts to speed up their work.140 This is especially the case at the ICTY, given that the ICTY is obviously ad hoc in nature, and as a result needs to close its doors.141 This can be contrasted with the ICC which is permanent institution, meaning it is under no similar obligation. Since 2003, the ICTY has been under increased pressure to speed up its work, with the UN Security Council imposing a “Completion Strategy” on tribunal.142 There has been some discussion that these amendments at the ICTY, such as 92quinquies, were introduced in order to satisfy this practical need for the tribunal to finish its work and close its doors.143 While expediency is an important issue and indeed at the ICC the accused is entitled to trial without undue delay under Article 67(1)(c) of the Rome Statute,

137 Unamended Rule 68(b) Rules of Procedure and Evidence ICC. 138 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(977).

139 Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, para. 6, available at: https://www.legal-tools.org/ uploads/tx_ltpdb/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016]. 140 See discussion above at 2.1.1.

141 Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol.36, pp. 287-318(316).

142 UN Security Council, Resolution 1503, S/RES/1503, 28 August 2003, available at: http://www.un.org/en/ga/search/ view_doc.asp?symbol=S/RES/1503(2003) [Last accessed 16 June 2016]; See also: Mundis, “The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals”, (2005) American Journal of International Law, Vol.99, pp. 142-158. 143 Ibid, Mundis, p. 142; Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol.36, pp. 287-318(316); Caianiello, “First Decision ons the Admission of Evidence at ICC Trials: A Blending of Accusatorial and Inquisitorial Models?”, (2011) Journal of International Criminal Justice, Vol.9, pp. 385-410(408). Page 26 of 66 international criminal trials by their nature can take many years due to their complexity.144 It has been held that the amount of years that it takes for a trial to run is not in itself the sole basis for determining that the right to a trial without undue delay has been violated145, with courts looking rather at whether there has been any undue or inexplicable delays.146 These rules at the ICTY, such as 92quinquies, give preference to notions of expediency over the rights of fairness to the accused by bypassing the chance for the Chamber to hear the witness in person.147 Although there is a need for expedience at the ICC, the Court is not subject to a Completion Strategy and therefore not subject to the same degree of constraint as the ICTY.148 The ICC should thus be wary of following such a trend substituting orality for written rules simply to speed up proceedings.

In short, although the principle of orality is perhaps not held in such high regard and there is an increased liberalistic trend allowing for written testimony, in the form of rules such as Rule 92quinquies, this arguably cannot serve to validate the legality of Amended Rule 68(2)(d). This is primarily due to the fact that these new rules evidencing this liberalistic trend appear to encroach too far onto the principle of orality, prioritising expediency over fairness to the accused.149 It appears that the move away from orality was originally intended not to include the admission of evidence that goes to the acts and conduct of the accused and these new rules stretch the boundaries of fairness that the principle of orality safeguards. Thus in order to ascertain a true picture of Amended Rule 68(2)(d)’s legality it is necessary to analyse the rule in isolation, evaluating whether it corresponds to fundamental fair trial rights such as the right to cross examination.

144 O-Gon Kwon, “The Challenge of an International Criminal Trial as Seen from the Bench”, (2007) Journal of International Criminal Justice, Vol. 5, pp. 360-376(361-362).

145 ICTR, Prosecutor v Bizimungu Casimir et al, ICTR-99-50-T, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, T.Ch, 29 May 2007, para. 27; ICTR, Prosecutor v Rwamakuba, ICTR-98-44C-PT, Decision on Defence Motion for Stay of Proceedings, T.Ch, 3 June 2005, para. 26; ECtHR, Eckle v Germany, Application No. 8130/78, Judgment, 15 July 1982, para. 80. See also - Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, pp. 508-509. 146 Acquaviva, Combs, Heikkilä, Linton, McDermott & Vasiliev “Trial Process” in Sluiter, Friman, Linton, Vasliev & Zappalà (eds) International Criminal Procedure: Principles and Rules, 1st edition, 2013, Oxford University Press, p. 808.

147 O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(516).

148 Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol.36, pp. 287-318(316). 149 O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(535-538); See also: Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, para. 6, available at: https://www.legal-tools.org/uploads/tx_ltpdb/ICC- ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016]. Page 27 of 66 2.2 - Amended Rule 68(2)(d) and The Right to Cross Examination

2.2.1 - The Importance and Scope of the Right to Cross Examination in International Criminal Law Evidence submitted under Amended Rule 68(2)(d) will ultimately be hearsay, in that evidence will comprise written statements that are not heard in court, and thus not subject to cross examination.150 The right to cross examination is enshrined in international human rights law and appears in practically every human rights instrument.151 At the ICC the right is contained in Article 67(3)(e) of the Rome Statute and reads that everyone charged with a criminal offence shall have the right “to examine, or have examined, the witnesses against him”.152 The right to cross examination has been held by various Chambers to represent a fundamental fair trial guarantee in international criminal law.153 Cross examination can provide one of the ultimate means of determining the truth and is one of the only ways in which an accused can provide a full answer and defence to the charges against him.154 Crucially, cross examination permits the accused to confront a witness while the trier of fact observes the witness's demeanour during his or her testimony, and thus the right is linked with the principle of orality, ensuring the reliability of such testimony and that evidence is heard publicly.155

Written statements in lieu of oral testimony submitted under Amended Rule 68(2)(d) pose a problem to the right in that a written statement cannot be subject to cross examination and thus the essential guarantees enumerated above are ultimately lacking. However, it has been held in jurisprudence from the ad hoc tribunals and the European Court of Human Rights (ECtHR) that the

150 O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(513); Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, pp. 780-781.

151 The right appears in the ICCPR, ECHR, IACHR etc - Ibid, O’Sullivan & Montgomery, p. 512. 152 The right to cross examination has also been replicated in the statutes of all the other international criminal institutions - See Article 21(4)(e), ICTY Statute; Article 20(4)(e), ICTR Statute; Article 17(4)(e), SCSL Statute; Article 35(e) new, Law on the Establishment of the ECCC; Article 16(4)(e) STL Statute.

153 See, inter alia, ICTY, Prosecutor v Prlić et al, IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 relating to Cross Examination by Defence and on Association on Defence Counsel’s Request for Leave to file an Amicus Curiae Brief, A.Ch, 4 July 2006, p. 2

154 ICTY, Prosecutor v Delalić et al, IT-96-21-T, Decision on the Motion on Presentation of Evidence by the Accused, Esad Landžo, T.Ch, 1 May 1997, para. 22; O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(513). 155 ICTY, Prosecutor v Delalić et al, IT-96-21-T, Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudeonymed ‘B’ through to ‘M’, T.Ch, 28 April 1997, paras. 54-55, 65-66; ICTY, Prosecutor v Delalić et al, IT-96-21-T, Decision to Allow Witness K, L and M to give their Testimony by Means of Video-Link Conference, T.Ch, 28 May 1997, para. 15; Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 825. Page 28 of 66 right to cross examination is not absolute156, and that a lack of cross examination is not an automatic bar to the admission of evidence.157

Applying this to Amended Rule 68(2)(d), although evidence submitted under the rule comprises hearsay evidence in the form of untested witness statements, this in itself is not contrary to the right to cross examination given that the right is not absolute. However, given that evidence can go to the acts and conduct of the accused this raises concerns as to whether the rule is still at odds with the right to cross examination. Regardless of the fact that the right is not absolute, given that evidence going to the acts and conduct of the accused can be pivotal to the prosecution’s case, and thus crucial to securing a conviction, one would ask whether the inability to cross examine this evidence does not prejudice an accused’s fair trial under Article 69(4) of the Rome Statute.158

2.2.2 - The Right to Cross Examination and Evidence that Goes to the Acts and Conduct of the Accused At the ICTY, the Trial Chamber in ‘Martić’ held “that the fact that evidence which has not been cross examined goes to the acts and conduct of the accused or is pivotal to the prosecution’s case is not per se a reason to exclude such evidence”.159 The Trial Chamber then went on to hold that instead “in order to protect the accused’s right to a fair trial, the Court requires that such evidence be corroborated if used to establish a conviction”.160 This reasoning was followed a year later by the Trial Chamber in ‘Haradinaj’ where the Chamber considered that the fact that written testimony

156 From the ICTY see: ICTY, Prosecutor v Martić, IT-95-11-T, Decision on Defence Motion to Exclude the Testimony of Witness Milan Babić, Together with Associated Exhibits, From Evidence, T. Ch, 9 June 2006, para. 56; ICTY, Prosecutor v Karadžić, IT-95-5/18-PT, Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92quater, T.Ch, 20 August 2009, para. 8; ICTY, Prosecutor v Prlić et al, IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, A.Ch, 23 November 2007, para. 52. From the ECtHR see: ECtHR, Krasniki v The Czech Republic, Application No. 51277/99, Judgment, 28 February 2006, para. 78; ECtHR, Kornev & Karpenko v Ukraine, Application No. 17444/04, Judgment, 21 October 2010, para. 54. 157 Ibid. See also: ICC, Prosecutor v Mathieu Ngudjolo Chui, ICC-01/04-02/12 A, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’, A.Ch, 7 April 2015, para. 226; Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 545.

158 Article 69(4) mandates the Court to take into account any prejudice that a piece of evidence may cause to a fair trial.

159 ICTY, Prosecutor v Martić, IT-95-11-T, Decision on Defence Motion to Exclude the Testimony of Witness Milan Babić, Together with Associated Exhibits, From Evidence, T. Ch, 9 June 2006, para. 67. 160 Ibid, para. 67 (emphasis added). Page 29 of 66 related to the acts and conduct of the accused was not a decisive factor in determining whether to exclude such evidence.161

The case law of the ECtHR largely supports these holdings by the ICTY, and is useful for clarifying and exploring the parameters of the right.162 The case law of the ECtHR has been utilised greatly in international criminal law to provide guidance on the principles on the admissibility and evaluation of evidence.163 The most recent and leading case on the right to cross examination at the ECtHR is that of ‘Al Khawaja and Tahery v UK’ decided by the Grand Chamber in 2011.164 The Grand Chamber held that although the accused must be given the opportunity to challenge evidence against him there are exceptions.165 The Grand Chamber, following previous rulings166, held that if a conviction is based “solely and decisively” on the evidence of an uncrossed witness then the rights of the defence will be unduly restricted.167 They illustrated that evidence would be decisive if it is of “such significance or importance as is likely to be determinative of the outcome of the case”.168 However, the Grand Chamber went further than previous cases at the ECtHR and indicated if such evidence did play a decisive role in conviction then a violation of Article 6(3)(e) ECHR would be offset if there were counterbalancing factors such as corroboration or reliability.169

On the basis of this above discussion it appears that the legality of Amended Rule 68(2)(d) depends somewhat on external factors and the way in which it is applied. If evidence under Amended Rule 68(2)(d) is used to sustain a conviction then this will not violate an accused’s right to cross examine

161 ICTY, Prosecutor v Haradinaj et al, IT-04-84-T, Reasons for Trial Chamber’s Decision to Exclude the Evidence of Witness 55 Under Rule 89(D) and Deny His Testimony Pursuant to Rule 92quater, T.Ch, 14 December 2007, para. 10. 162 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 761.

163 Ibid, p. 761. 164 This case dealt with the convictions of two individuals which were essentially based on written statements where two witnesses had not appeared at trial, one of which was due to intimidation. The applicants appealed their convictions at the ECtHR averring that these convictions violated their rights to cross examination, and by extension their right to a fair trial under Article 6(3)(d) ECHR - ECtHR, Al-Khawaja & Tahery v The United Kingdom, Application Nos. 26766/05 & 22228/06, Grand Chamber Judgment, 15 December 2011.

165 Ibid, para. 118. 166 See, inter alia, ECtHR, Lucà v Italy, Application No. 33354/96, Judgment, 27 February 2001, para. 40; ECtHR, Sadak & Others v Turkey (No. 1), Application Nos. 29900/96, 29901/96, 29902/96 & 29903/96, Judgment, 17 July 2001, para. 65.

167 Al-Khawaja & Tahery v The United Kingdom, Application Nos. 26766/05 & 22228/06, Grand Chamber Judgment, 15 December 2011, paras. 119, 128.

168 Ibid, para. 131. 169 Ibid, paras. 146-147, 156, 165. Page 30 of 66 witnesses against him or her provided that such evidence is corroborated.170 According to these cases it appears that corroboration is perceived to provide a sufficient enough safeguard to offset any prejudice to the accused.171

2.2.3 - Have the Limitations on the Right to Cross Examination gone too far? Given that where evidence sought to be admitted under Amended Rule 68(2)(d) goes to the acts and conduct of the accused needs to be corroborated, one would question why this requirement was not expressly included in Amended Rule 68(2)(d) itself? Although under Rule 63(4) the ICC, as a general rule, will not impose a legal requirement of corroboration172 it is clearly needed here in order to render evidence submitted under Amended Rule 68(2)(d) fair to the accused. The fact that there is no express provision within the rule itself places a significant amount of faith on the discretion of professional judges to ensure that the evidence is corroborated and evaluated effectively. The lack of a codified corroborative requirement could lead to discrepancies in treatment and places judges under no binding obligation in the statute or rules to ensure that such evidence is corroborated.

However, regardless of this, one would question whether corroboration is sufficient in itself to offset prejudice to the accused. Arguably, no judgment can be rendered safely if it is based on evidence prepared on behalf of one party which the opposing side has not been able to test or verify, regardless of whether it has been corroborated or not.173 Similarly, the ease in which a Trial Chamber can find evidence that appears to corroborate written testimony creates uncertainty as to whether corroboration is sufficient to offset the lack of cross examination.174 This was demonstrated in the ‘Karemera’ case, where the only evidence of rape in the Butare préfecture was introduced

170 ECtHR, Al-Khawaja & Tahery v The United Kingdom, Application Nos. 26766/05 & 22228/06, Grand Chamber Judgment, 15 December 2011, paras. 146-147, 156, 165. 171 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 544; Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 495.

172 Rule 63(4) Rules of Procedure and Evidence ICC.

173 ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11 OA 10, Public Redacted Version of Sang Defence Appeal against the decision of Trial Chamber V(A) of 19 August 2015 entitled ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony, A.Ch, 13 October 2015, para. 48. 174 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(984). Page 31 of 66 through a single written statement of a witness.175 The ICTR held that this single statement was corroborated by the fact that there was a pattern of evidence from other préfectures where rape had taken place.176 This is somewhat concerning and demonstrates the ease to which a Trial Chamber will establish corroboration as in this case it was arguably somewhat of a stretch to suggest that just because a pattern of conduct was proven in regions X and Y, that this went towards proving the same conduct in region Z.177 Although this case pertained to sexual violence, which carries its own evidentiary difficulties178, this practice at the ICTR could be argued to undermine the standard of proof by placing an undue burden on the accused.179 The fact that a single written statement was sufficient to convict the accused on this charge of rape without hearing the witness in person is concerning.180 In other préfectures charges of sexual violence were supported by a mix of oral testimony and written statements181, which arguably corresponds better with the standard of proof required.182 Although there is a need to ensure justice for victims, especially in cases of sexual violence, this should not be at the expense of the accused’s ability to adequately challenge evidence against him or her. A conviction needs to rest on strong evidentiary foundations and given the gravity and stigma associated with crimes of sexual violence, to convict the accused in this case on the basis of a single written statement, which is arguably inadequately corroborated, somewhat creates the appearance of arbitrariness.183

175 ICTR, Prosecutor v Karemera et al, ICTR-98-44-T, Judgment and Sentence, T.Ch, 2 February 2012, paras. 1408-1410. 176 Ibid, para. 1411.

177 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(984). 178 See: Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles”, (2003) Berkeley Journal of International Law, Vol. 21, pp. 288-349.

179 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(984). 180 ICTR, Prosecutor v Karemera et al, ICTR-98-44-T, Judgment and Sentence, T.Ch, 2 February 2012, para. 1411.

181 Ibid, paras. 1337-1424.

182 In international criminal law the guilt of the accused must be proved beyond reasonable doubt - See, inter alia, Article 66(3) Rome Statute. 183 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(984). Page 32 of 66 While it could be argued that this could just be an isolated case and that in practice a Chamber will not render a conviction based solely on evidence under Amended Rule 68(2)(d)184 the possibility is not foreclosed and this jurisprudence is somewhat worrying. It begs the question of how can an accused challenge a case against him if he cannot even challenge evidence going directly to the impugned acts in question. This derogation from the right to cross examine has inescapable implications for the perceived fairness of the trial and one would question whether this increased allowance of hearsay evidence has gone too far?

In short, one would acknowledge that according to the aforementioned jurisprudence Amended Rule 68(2)(d) is not per se unlawful simply because it denies the right to cross examination, even for evidence that goes to the acts and conduct of the accused. However, one would argue that this recent case law limiting the right to cross examination goes too far in that it trivialises the right to cross examination effectively rendering it mute because it now cannot even be used to challenge critical evidence going to the acts of the accused.185 Although the position taken in international criminal law is that any concerns as to fairness for the accused are offset by the fact such evidence should be corroborated, this is arguably insufficient given the ease by which a Trial Chamber may find corroborative evidence.186 While it can be conceded that in reality a Chamber will most likely not sustain a conviction based solely on a statement admitted under Amended Rule 68(2)(d) the risk for arbitrariness is present, especially given the pressure to combat the effects of witness interference.187 Similarly, regardless of whether evidence under Amended Rule 68(2)(d) is used as the sole or decisive basis for a conviction or not the rule still allows evidence which goes to the acts and conduct of the accused. Thus, the fact still remains that key evidence which can contribute to a finding of guilt is allowed to bypass essential safeguards and significantly increasing the risk of an

184 ICTY, Prosecutor v Haradinaj et al, IT-04-84-T, Reasons for Trial Chamber’s Decision to Exclude the Evidence of Witness 55 Under Rule 89(D) and Deny His Testimony pursuant to Rule 92quater, 14 December 2007, para. 10; ICTY, Prosecutor v Brdanin, IT-99-36-T, Trial Judgment, T.Ch, 1 September 2004, fn944.

185 O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(535).

186 See preceding discussion. 187 Note the discussion in Chapter 1, specifically in relation to the Haradinaj, Šešelj and Ruto/Sang cases. For example, in his decision terminating the charges against the Ruto & Sang Judge Eboe Osuji noted the difficulties and pressure faced by the Chamber in needing to combat witness interference and expressed frustration at the derailing effect of witness interference on the trial - see ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, paras. 154, 156, 170, 183. Page 33 of 66 unsafe verdict.188 There is no denying that the encroachment on the right to cross examination caused by Amended Rule 68(2)(d) is great and extreme caution should be exercised before resorting to this rule to tender pivotal evidence.

2.3 - The Inherent Reliability of Evidence submitted under Amended Rule 68(2)(d)

2.3.1 Admissibility Requirements at the ICC - Reliability of Evidence Given that evidence admitted under Amended Rule 68(2)(d) is not subject to cross examination a final question that arises is whether, despite this, can such evidence still be deemed reliable enough for admission and use at trial? In order to answer this question and thus by extension determine whether evidence submitted under the rule corresponds with the basic principles governing the admissibility of evidence in international criminal law, it is necessary to take a very practical analysis of the way that evidence is admitted and processed in international criminal law.

Article 69(4) of the Rome Statute lays down some of the key principles governing the admissibility of evidence at the ICC.189 The provision confers broad authority on the Court to rule on the relevance or admissibility of evidence, taking into account the probative value of the evidence and any prejudice that such evidence may cause to a fair trial.190 Similarly, according to the jurisprudence of the ICC and ad hoc tribunals evidence must meet some threshold of reliability in order to be considered probative191, with reliability being particular relevant for admissibility if the evidence comprises a written statement.192 Indeed Amended Rule 68(2)(d) explicitly requires an “indicia of reliability” in order for evidence to be admitted under it.193 In the Ruto/Sang case the Trial Chamber, in determining what was required for this “indicia of reliability”, held that the fact

188 International Bar Association, “Rule 68 Amendment Proposal”, IBA ICC Programme Legal Opinion, 12 November 2013, p. 4 available at: http://www.ibanet.org/Document/Default.aspx?DocumentUid=6B68A33A-5D59-4C82- BE6A-327D44122D4E [Last accessed 16 June 2016].

189 Article 69(4) Rome Statute reads “The Court may rule on the relevance or admissibility of any evidence, taking 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, in accordance with the Rules of Procedure and Evidence.” 190 Gosnell “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 378

191 ICC, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the admissibility of 4 documents, T.Ch, 13 June 2008, para. 28.

192 ICTY, Prosecutor v Milutonović, IT-05-87-T, Decision on Evidence Tendered through Sandra Mitchell and Frederick Abrahams, T.Ch, 1 September 2006, para. 9. 193 See Amended Rule 68(2)(d)(i) Rules of Procedure and Evidence ICC. Page 34 of 66 that the witness statements had been signed was sufficient.194 This holding is arguably somewhat worrying due to the fact that the Trial Chamber sets a very low threshold here for the admissibility of untested hearsay evidence and one would question whether in doing so the Trial Chamber goes against its duty in Article 69(4) to ensure that the admission of evidence does not cause prejudice to fair trial. It has been held that hearsay evidence should be denied admissibility where it is “so lacking in reliability that it is not probative”195, and when one considers the nature of written statements submitted under Amended Rule 68(2)(d) one would question whether such evidence could ever have sufficient reliability to be relied on and admitted into evidence.196

2.3.2 - The Nature of Evidence under Amended Rule 68(2)(d) Written statements submitted under Amended Rule 68(2)(d) are not required to be given under oath, as necessary for any witness testifying in person at the ICC.197 This lack of oath means that any potential liability for perjury is non existent and thus the disincentive to provide false information in a statement is significantly more absent.198 This in turn impacts the potential reliability of a statement because the consequences for fabricating evidence are not grave for the maker of such a statement given that the statement is unsworn.199 Furthermore, when one considers the situation in which these written statements are typically taken in the issue of reliability is somewhat concerning. The ICC has the potential to operate all over the world and an investigator will typically not speak the same language as the witness and have to rely on interpreters accounts of what the witness is saying.200 The statement will usually be taken down in a language that the witness may not speak and then have to be translated back into a language that the witness does speak in order for him or

194 ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on Prosecution Request for Admission of Prior Recorded Testimony, T.Ch, 19 August 2015, paras. 66-67. 195 ICTR, Prosecutor v Ntahobali et al, ICTR-98-42-T, Decision on Ntahobali’s Motion to Admit Kanyabashi’s Custodial Statements, T.Ch, 15 September 2006, para. 19.

196 See Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and Reconstruction of Disputed Events, 1st edition, 2013, Martinus Nijhoff Publishers, p. 356. 197 See Rule 66 Rules of Procedure and Evidence ICC.

198 ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11 OA 10, Public Redacted Version of Sang Defence Appeal Against the decision of Trial Chamber V(A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recorded Testimony, A.Ch, 13 October 2015, para. 45.

199 Ibid. 200 This was a problem noted by the ICTY Appeals Chamber in the Kordić and Čerkez case as being an inherent problem with written statements - ICTY, Prosecutor v Kordić & Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, A.Ch, 21 July 2000, para. 27. Page 35 of 66 her to sign.201 Similarly, these statements are also generally summaries of what the witness has said, and verbatim transcripts are rarely available.202 One would argue that these settings, where there is multiple translations, can create a huge risk of inaccuracy.203 Unlike in the courtroom, there will be no simultaneous translation which is subject to being double checked to ensure its reliability.204 Similarly, this is exacerbated by the fact that statements under Amended Rule 68(2)(d) will have been prepared by the tendering party, who obviously will have an interest in doing so.205 It was noted by the Pre Trial Chamber in the ‘Mbarushimana’ case that investigators typically use leading questions to elicit positive responses and show resentment when the witness replies in terms which are not entirely in line with the expectation of the investigator.206 There is no supervision in the taking of these statements by a neutral judicial officer and thus key checks and balances are missing.207

These practical concerns in relation to the taking and preparing of witness statements could be argued to severely undermine their reliability and thus has implications for the use of such evidence under Amended Rule 68(2)(d) and causes one to question whether such evidence reconciles with Article 69(4) of the Rome Statute, as mentioned above. Under this provision the Court must exclude evidence where admission would cause prejudice to an accused’s right to fair trial. One would argue that, in light of the above analysis, that evidence admitted through Amended Rule 68(2)(d) does not correspond with Article 69(4) because such evidence could be perceived as being inherently

201 Ibid, para. 27; ICTY, Prosecutor v Galić, IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis (C), A.Ch, 7 June 2002, para. 30 and fn. 56. 202 Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 299

203 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, p. 844. 204 ICTY, Prosecutor v Kordić & Čerkez, IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, A.Ch, 21 July 2000, para. 27.

205 ICTY, Prosecutor v Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement, A.Ch, 21 October 2003, para. 6; Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 299; Nuremberg & Timmermann, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 449.

206 ICC, Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10, Decision on the Conformation of Charges, PT.Ch, 16 December 2011, para. 51. 207 ICTY, Prosecutor v Milošević, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement, A.Ch, 21 October 2003, para. 6; Nuremberg & Timmermann, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 449. Page 36 of 66 unreliable. It could be argued that the lack of reliability is intrinsic to statements tendered under Amended Rule 68(2)(d) and to admit them would violate an accused’s fair trial under Article 69(4).

2.3.3 - The “Theoretical” Distinction between the Stages of Admissibility and Weight: Issues with the Evidential Process It could be argued in response to these concerns that they are offset given the fact that at the admissibility stage a lower threshold of reliability is needed.208 In international criminal procedure evidence is looked at in two stages, firstly when evidence is first admitted on to the evidential record, and secondly when judges come to their deliberations and determine the issue of weight to be apportioned to particular pieces of evidence in light of the totality of evidence.209 This distinction is given prominence in international criminal law with many Trial Chambers highlighting that just because evidence is admitted on to the record does not mean that such evidence will be relied on in the final judgment.210 However, one would argue that this distinction between the stages of admissibility and weight are ultimately too artificial and theoretical, with the resulting indiscriminate admission of evidence being a serious flaw in international criminal procedure.

An overarching question in relation to this distinction between admissibility and weight is, if evidence is not going to be relied upon during deliberations, why admit it in the first place?211 To say that that it makes no difference whether evidence is excluded ab initio at the stage of admissibility, or admitted and rejected later when determining weight, fails to take into account the realities of international criminal trials.212 For example, once evidence is admitted it becomes part of the record, increases the volume of evidence and thus becomes available for use by parties in

208 Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia, pp. 776-780; Gosnell, “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 386. 209 Ibid, Tochilovsky, p. 766; Ibid, Gosnell, p. 386. See also, inter alia, : ICC, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the admissibility of 4 documents, T.Ch, 13 June 2008, para. 33.

210 See, inter alia, ICTY, Prosecutor v Dordević et al, IT-05-87/I-T, Judgment, T.Ch, 23 February 2011, para. 12; ICTY, Prosecutor v Gotovina et al, IT-06-90-T, Judgment, T.Ch, 25 April 2011, para. 45; ICTR, Prosecutor v Gatete, ICTR-00-61-T, Judgment, T.Ch, 31 March 2011, para. 18; SCSL, Prosecutor v Taylor, SCSL-03-01-T, Judgment, T.Ch, 18 May 2012, para. 202; ICC, Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the admissibility of 4 documents, T.Ch, 13 June 2008, para. 33.

211 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(987). 212 Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(552). Page 37 of 66 examining witnesses and addressing arguments to the chamber.213 The fact that reliability is not properly ascertained till the end of the trial allows inherently unreliable evidence to become intertwined with other evidence and obtain significance.214 Granted it can be said that one of the goals of international tribunals and courts is to seek the truth215, and evidence can slot together over the course of trial in order to elucidate a clearer picture of the crimes at hand.216 However, this fails to appreciate that this task is undermined given that the fact that the “truth” may be built on evidence that is not credible and in certain circumstances fabricated, and thus to call it “truth” is somewhat flawed. In other words, by not conducting a thorough examination into reliability at the admission stage there is the risk that such unreliable evidence will contaminate the judicial record, especially where that evidence comprises untested hearsay.217

This in turn makes a professional judge’s role in determining what weight to apportion to evidence much more difficult. This indiscriminate way of admitting evidence burdens judges with a heavy task of sifting through many potentially unreliable hearsay statements, with significant faith being placed on them to put them out of their mind when forming a judgment.218 Given the length of international criminal trials determining a piece of evidence’s reliability months, or even years, after its initial admission will arguably be much less effective.219 This is due to the fact that the evidence can no longer be viewed in isolation and therefore an objective determination of what weight should be apportioned to it will be much more difficult.220 One would respectfully submit that it is questionable whether professional judges are able to, because of their training221, assess

213 Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(552). 214 Ibid.

215 For a discussion on the goals of international criminal justice see, inter alia: Cassese, “The Rationale for International Criminal Justice”, in Cassese et al (eds), The Oxford Companion to International Criminal Justice, 1st edition, 2009, Oxford University Press, pp. 123-130; Damaska, “What is the Point of International Criminal Justice?” (2008) Chicago Kent Law Review, Vol. 83, pp. 329-365. 216 McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(985).

217 Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(552). 218 Ibid.

219 Ibid.

220 Ibid. 221 It has been opined by the ICTY that professional judges have the necessary ability to evaluate hearsay - ICTY, Prosecutor v Blaškić, IT-95-14-T, Decision on the Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its Reliability, T.Ch, 21 January 1998, para. 10. Page 38 of 66 unchallenged evidence thoroughly and to a standard required to ensure that a judgment is based on strong evidence.222 In fact it has been noted by judges themselves that “donning a robe does not enshroud its occupant with a seventh sense of whether something written on paper is true or false”.223 As noted by a judge from the UK “trials are conducted by human beings, and there is a lot to be said for not over-burdening human beings in the conduct of important affairs if that can be avoided”.224 In relation to Amended Rule 68(2)(d) this undue emphasis on the fact that if evidence admitted under Amended Rule 68(2)(d) does not have sufficient reliability it will simply not be given weight in the final judgment is inadequate and fails to take into account the reality of of the international criminal process and the inherent unreliability of written statements under Amended Rule 68(2)(d). This failing in turn means that the use of Amended Rule 68(2)(d) creates a great risk of prejudice to the accused which arguably outweighs any probative value that such evidence might have.

2.4 - Concluding Thoughts Amended Rule 68(2)(d) clearly creates tension with a variety of different interests and rights in international criminal law. The rule encroaches heavily on the principle of orality, stretching the liberal trend allowing for written statements in a direction that does not correspond with the initial reasoning behind such statements.225 The rule essentially denies the fundamental right to cross examination, with such evidence not being able to be challenged before the trier of fact. This is concerning given the inherent unreliability of such evidence and the scope of material admissible under Amended Rule 68(2)(d), such as decisive and pivotal evidence going to the acts and conduct of the accused.226 Is therefore the use of Amended Rule 68(2)(d) illegal? In light of the foregoing analysis, from a legal perspective Amended Rule 68(2)(d) raises a number of concerns and creates tension with a number of fair trial guarantees. Whether these tensions are sufficient to declare the use of the rule unlawful is open to interpretation, and it is difficult to hold Amended Rule 68(2)(d)

222 Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, 2011 Journal of International Law and Commercial Regulation, Vol. 36, pp. 288-318(304); Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(552). 223 This was noted by Judge Patricia Wald, Former Judge at the ICTY - Wald, “ICTY Judicial Proceedings: An Appraisal from Within”, (2004) Journal of International Criminal Justice, Vol. 2, pp.466-473(473).

224 Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573(551).

225 See discussion above at 2.1.2. 226 See discussion above at 2.2.2, 2.2.3, 2.3.2. Page 39 of 66 illegal in the abstract. As noted its legality is perhaps better ascertained in light of how it is applied. In order for justice to be done it must be seen to be done227 and from this perspective could a Trial Chamber in all good conscience convict an accused based on statements tendered under Amended Rule 68(2)(d), statements which are untested, unchallenged and can potentially lead to the conviction of the accused for an international crime?228 It is too early to answer this question given that the rule has yet to be utilised successfully at the ICC229, however, it is unlikely that Amended Rule 68(2)(d) would be relied on by a Chamber as sole and decisive evidence where they have been unable to observe and hear the witness first hand.230 Indeed if the Prosecution’s case hinges on a written statement(s) tendered under Amended Rule 68(2)(d) then their case ultimately rests on very weak grounds.231 However, given the rule’s existence this risk of a miscarriage of justice through the use of Amended Rule 68(2)(d) is not wholly foreclosed. Part of Amended Rule 68(2)(d) reads that written statements in lieu of oral testimony should only be admitted under if the “interests of justice are best served” by admission.232 The rule does not clarify what this phrase exactly means, however, given the high risk of prejudice to the accused the Prosecution should be wary of relying too heavily on Amended Rule 68(2)(d) to support its case, and by extension the Chamber should be vigilant in ensuring that their verdict has a strong evidentiary basis.

However, is that all that the “interests of justice” encapsulates, or are there other concerns that should be borne in mind? Amended Rule 68(2)(d) was introduced to, inter alia, alleviate the

227 This is the well known maxim of Lord Hewart CJ that is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” - ICTY, Prosecutor v Furundžija, IT-95-17/1-A, Judgment, A.Ch, 21 July 2000, para. 195 (citing R v Sussex Justices ex parte McCarthy, [1924] 1 KB 256, Kings Bench Division, 9 November 1923, at p. 259).

228 It was held by the ICTR that evidence whose reliability which cannot adequately detested by the Defence cannot have probative value - ICTR, Prosecutor v Bagosora et al, ICTR-98-41-T, Decision on Admissibility of Evidence of Witness DBQ, T.Ch, 18 November 2003, paras. 8, 24; Similarly in Akayesu the Appeals Chamber held that “the wholesale admission of hearsay untested by cross examination…would be of no probative value” - ICTR, Prosecutor v Akayesu, ICTR-96-4-A, Judgment, A.Ch, 1 June 2001, para. 292; See also: Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press, p. 495. 229 See: ICC, Prosecutor v William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Judgment on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recored Testimony”, A.Ch, 12 February 2016.

230 See: McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(982 et seq); ICTY, Prosecutor v Haradinaj et al, IT-04-84-T, Reasons for Trial Chamber’s Decision to Exclude the Evidence of Witness 55 Under Rule 89(D) and Deny His Testimony pursuant to Rule 92quater, 14 December 2007, para. 10; ICTY, Prosecutor v Brdanin, IT-99-36-T, Trial Judgment, 1 September 2004, fn944.

231 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Fremr, T.Ch, 5 April 2016, para 57. 232 See Amended Rule 68(2)(d)(i) Rules of Procedure and Evidence ICC. Page 40 of 66 situation where a witness was willing to testify and shed light on the guilt or innocence of the accused, but is now prevented from doing so through interference.233 Is it not in the interests of justice to counter the effects of witness interference, which is hampering the proceedings, and admit their evidence onto the record, albeit in a less favourable form?234 This closing question leads on to the final discussion of this work, namely can the overwhelming problem of witness interference which is derailing trials and impeding the ability to deliver justice, as discussed in Chapter 1, be sufficient enough to offset any illegality identified above in Amended Rule 68(2)(d)?

233 The primary purpose noted by drafters was the “expediting of proceedings”, however, this is not the rule’s only purpose, see: International Bar Association, “Rule 68 Amendment Proposal”, IBA ICC Programme Legal Opinion, 12 November 2013, fn. 4 available at: http://www.ibanet.org/Document/Default.aspx? DocumentUid=6B68A33A-5D59-4C82-BE6A-327D44122D4E [Last accessed 16 June 2016]; ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Prosecution Request for Admission of Prior Recorded Testimony, T.Ch, 19 August 2015, paras. 32, 60; McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(973). 234 ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Prosecution Request for Admission of Prior Recorded Testimony, T.Ch, 19 August 2015, para. 60. Page 41 of 66 Chapter 3 - Amended Rule 68(2)(d) and the Interests of Justice: Solutions and Alternatives

The analysis of Amended Rule 68(2)(d) thus far has focussed primarily on how the rule reconciles with the rights of the accused. However, in order to obtain the full picture the analysis cannot end there. In the international criminal process there is more than just the accused who is party to the proceedings, specifically at the ICC there is also the Prosecution and victims.235 These parties arguably also have their own interests, and thus it is necessary to take a more nuanced stance and also analyse and evaluate these interests in order to gain a fuller understanding of Amended Rule 68(2)(d). These interests primarily encompass the notion that the Prosecution and victims are also entitled to a degree of fairness and justice in the proceedings, which are arguably encroached upon by the problem of witness interference due to the detrimental impact it can have on the Prosecution’s case and the ability to obtain accountability for victims.236 Analysis of the importance of these interests can somewhat answer what weight can be given to the problem of witness interference to offset any issues of legality arising out of application of Amended Rule 68(2)(d).

This final chapter will trace these interests and their impact on the legality of Amended Rule 68(2) (d) and will be divided into 3 sub-chapters. The first sub chapter will begin by looking at the concept of fairness, or “fair trial” for the Prosecution, analysing case law dealing with this concept looking at what weight can be given to it in light of the respective positions of the Prosecution and the defence in international criminal proceedings. The analysis in this sub chapter will also incorporate some discussion on the rights of victims and witnesses.

The second sub-chapter will then draw the analysis of these issues together and offer some form of conclusion weighing up the legality of Amended Rule 68(2)(d) in light of the problem of witness interference.

In light of this conclusion the final sub-chapter will close by looking at, given the fair trial inadequacies arising out of Amended Rule 68(2)(d), whether there is an alternate avenue to combat

235 See, inter alia: Articles 54(1)(b), 64(2) & 68(1) Rome Statute. 236 Maliti, “ICC Prosecutor Asks Court to Admit as Evidence Statements of Witnesses Who Recanted”, 4 June 2015, available at: http://www.ijmonitor.org/2015/06/icc-prosecutor-asks-court-to-admit-as-evidence-statements-of- witnesses-who-recanted/ [Last accessed 16 June 2016]; Journalists for Justice, “Bribery, intimidation of witnesses undermines justice for victims”, 6 April 2016, available at: http://jfjustice.net/en/icc-cases/bribery-intimidation-of- witnesses-is-undermines-justice-for-victims [Last accessed 16 June 2016]; Momanyl & Jennings, “Kenya Witnesses Face Harassment”, Institute for War & Peace Reporting, 5 June 2013, available at: https://iwpr.net/global-voices/ kenya-witnesses-face-harassment [Last accessed 16 June 2016]. Page 42 of 66 the effects of witness interference. This brings in the concept of the “unique investigative opportunity” under Article 56 of the Rome Statute at the ICC, which the author argues could be a fairer means to combat witness interference compared with Amended Rule 68(2)(d).

3.1 - Amended Rule 68(2)(d) and Fairness to the Prosecution, Victims and Witnesses: Rights vs Interests

3.1.1 - Fairness to the Prosecution? There is some academic and jurisprudential discussion on whether the Prosecution, as well as the defence, is also entitled to a right of fairness in the proceedings.237 Article 67 of the Rome Statute provides a comprehensive list of the rights of the accused. However, despite this provision being explicitly entitled “Rights of the Accused”238 the ICC has on several occasions extended fair trial rights to other actors, highlighting that fairness can also extend to “other parties, such as the Prosecution”.239 The ICC is not alone in this view, at the ICTY the Trial Chamber in ‘Milutonović’, held that “although the use of the word ‘fairness’ might commonly refer to fairness for an accused, the Prosecution undoubtedly is entitled to a fair opportunity to present its case”240. The ICTR takes this further and has held that the “right to fair trial applies both to the defence and the Prosecution”241. This has implications for Amended Rule 68(2)(d) given that according to these cases the Prosecution are also entitled to some degree of fairness in presenting their case. It could be argued that given the crippling impact that witness interference can have on the Prosecution’s case Amended Rule 68(2)(d) acts a mechanism to ensure that proceedings are fair for the Prosecution by allowing written statements where the witness has been interfered with to be admitted onto the record. It has been argued on several occasions that the Prosecution acts on behalf and in the

237 Fedorova, The Principle of Equality of Arms in International Criminal Proceedings, 2012, Intersentia, p. 411. 238 See: Article 67 of the Rome Statute of the International Criminal Court.

239 ICC, Situation in Uganda, ICC-02/04-01/05, Decision on the Prosecution’s Application for Leave to Appeal the Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/0 and a/ 0111/06 to a/0127/06, PT. Ch, 19 December 2007, para. 27; ICC, Prosecutor v Kony et al, ICC-02/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal Dated the 15th day of May 2006, PT.Ch, 10 July 2006, para. 24.

240 ICTY, Prosecutor v Milutinović et al, IT-05-87-T, Decision Denying Prosecution’s Request for Certification of Rule 73bis issue for Appeal, T.Ch, 30 August 2006, para. 10. 241 ICTR, Prosecutor v Karemera et al, ICTR-98-44-T, Decision on Severance of André Rwamakuba and Amendments of the Indictment, T.Ch, 7 December 2004, para. 26 (emphasis added). This was also followed by Judge Eboe-Osuji in the decision terminating the case against Ruto and Sang “The idea of a ‘fair trial’ — it must be stressed — is an objective notion. A trial must be fair to all the parties and participants in the case — the Defence and the Prosecution alike. And the victims, too” - ICC, Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, T.Ch, 5 April 2016, para. 190. Page 43 of 66 interests of the international community, and thus should also be entitled to fairness in the proceedings as well as the accused.242 This ultimately anchors the justification for fairness to the Prosecution on normative grounds, implicitly emphasising that the Prosecution should be treated fairly in order to realise goals of seeking justice and ending impunity.243 Indeed this is a strong moral justification for extending fairness to the Prosecution, however, when one considers the respective position of the Prosecution vis-a-vis the Defence this argument that the Prosecution is also entitled to benefit from fairness in the proceedings runs into difficulty.244

The Prosecution and the defence at the ICC are in fundamentally different positions. The Prosecution is institutionalised, being an official organ of the Court245 and has increased power due to the means at its disposal.246 These increased means give the Prosecution a structural advantage over the defence, with the Prosecution having the power to seek cooperation and compliance of any state or intergovernmental organisation and to enter into agreements with them.247 The defence on the other hand have very limited power and traditionally suffers from a lack of cooperation248, having to rely heavily on the Prosecution to abide by their duty of disclosure of exculpatory evidence.249 In response to this, the ICC provides explicit fair trial rights under the Rome Statute to somewhat alleviate the difficulties caused by the structural inequality between the two actors.250 It is here that the argument that Amended Rule 68(2)(d) can be used to ensure that the proceedings are fair for the Prosecution arguably suffers. This is due to the fact that these rights to fairness were

242 ICTY, Prosecutor v Aleksovski, IT-95-14/1-A, Decision on Prosecutor’s Appeal on Admissibility of Evidence, A.Ch, 16 February 1999, para. 25; ICTY, Prosecutor v Halilović, IT-01-48-T, Decision on Motion for Prosecution Access to Defence Documents, T.Ch, 9 May 2005, para. 8; Fedorova, The Principle of Equality of Arms in International Criminal Proceedings, 2012, Intersentia, pp. 443 & 454. 243 Ibid, Fedorova, p. 454.

244 Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol. 36, pp287-318(293). 245 Article 34(c) Rome Statute of the International Criminal Court.

246 See: Article 54 Rome Statute of the International Criminal Court; Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol. 36, pp287-318(296). 247 Article 54(3)(b),(c) & (d) Rome Statute of the International Criminal Court.

248 Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol. 36, pp287-318(296-297).

249 See Article 67(2) Rome Statute of the International Criminal Court; Ibid, Caianiello, p. 299. 250 McDermott, “Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 166; Fedorova, The Principle of Equality of Arms in International Criminal Proceedings, 2012, Intersentia, p. 442. Page 44 of 66 established for the defence to somewhat elevate it to the level of the Prosecution.251 It seems illogical for the Prosecution to be able to rely on these minimum rights of the accused and claim that they are entitled to the same degree of fairness given the aforementioned advantages that the Prosecution has vis-a-vis the defence.252 To say that any undermining of fair trial guarantees for the accused caused by Amended Rule 68(2)(d) is offset because the rule alleviates the problem of witness interference and ensures fairness to the Prosecution’s case fails to take into account the practical set up of the Prosecution and the defence at the ICC. The Prosecution arguably cannot invoke considerations that they are entitled to the same degree of fairness as the defence and thus caution should be taken before attaching too much weight to this argument to offset any tensions that Amended Rule 68(2)(d) has with the accused’s fair trial guarantees.253

It could be further argued that Amended Rule 68(2)(d) overly favours the Prosecution vis-a-vis the defence. Although the rule technically is of neutral application, the Prosecution’s stronger role arguably places them in a better position to utilise Amended Rule 68(2)(d).254 This is due to the fact that Prosecution will have more resources to collect such statements at the investigation stage, contrasted with the Defence who due to a lack of resources will not be able to utilise Amended Rule 68(2)(d) to the same extent.255

3.1.2 - Fairness to the Victims and Witnesses? The same reasoning also arguably applies to notions of fairness to victims and witnesses. Article 64(2) of the Rome Statute mandates the Trial Chamber to ensure that the trial is fair with due regard for the protection of victims and witnesses.256 Similarly Article 68(1) provides that the Court shall take measures to protect, inter alia, the physical and psychological well being and dignity of victims and witnesses.257 These provisions indicate that justice needs to not only be fair for the

251 Fedorova, The Principle of Equality of Arms in International Criminal Proceedings, 2012, Intersentia, Fedorova. 252 McDermott, “Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 166; Ibid, Fedorova, p. 442.

253 Ibid, Fedorova, pp. 453-453. 254 Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol. 36, pp287-318(303).

255 Ibid.

256 See: Article 64(2) Rome Statute. 257 See: Article 68(1) Rome Statute. Page 45 of 66 accused but also for victims.258 This could provide basis for an argument in support of offsetting any prejudice to the accused caused by Amended Rule 68(2)(d). It could be argued that Amended Rule 68(2)(d) ensures fairness for victims and witnesses by aiming to ensure that witness interference does not derail the trial of those accused of crimes against them, and that their testimony regarding what they saw or endured is still taken into consideration in the ultimate determination of the guilt of the accused.

However, similar to the argument purporting fairness to the Prosecution, this argument is also insufficient for the purposes of Amended Rule 68(2)(d). According to Article 68(3) of the Rome Statute the interests of the victims can be considered as long as it is not prejudicial or inconsistent with the rights of the accused.259 Judge Van den Wyngaert expressed in ‘Katanga’ that “the trial must be first and foremost fair towards the accused. Considerations about procedural fairness for the Prosecutor and the victims…cannot trump the rights of the accused…[I]t is the accused who stands trial and risks losing his freedom and property”.260 This is indicative of an overarching difference between the accused and other actors, such as witnesses, victims and the Prosecution, and essentially boils down to the dichotomy between rights and interests. Arguably the accused is the only actor that holds enforceable rights related to their status at trial.261 The Prosecution, victims and witnesses, on the other hand, are regarded as interest holders.262 The significance of this is that although the Prosecution and victims etc may have an interest in the fairness of proceedings, they do not have a right to it like the accused.263 To elevate these interests of the other parties to the status of “rights” arguably undermines the rights of the accused which should take primacy given the need to ensure that proceedings lead to proper establishment of the truth and appear credible, non-arbitrary and just.264 Applying this to Amended Rule 68(2)(d) although victims, witnesses and

258 See: ICC, Prosecutor v Bosco Ntaganda, ICC-01/04-02/06, Final Written Submissions of the Common Legal Representative of the Victims of the Attacks following the confirmation of Charges hearing, PT.Ch, 7 March 2014, para. 19. 259 See: Article 68(3) Rome Statute.

260 ICC, Prosecutor v Germain Katanga, ICC-01/04-01/07-3436-AnxI, Minority Opinion of Judge Christine Van den Wyngaert, T.Ch, 7 March 2014, para. 309. 261 McDermott, “Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, p. 166.

262 Ibid.

263 Zappalà, “The Rights of Victims v. the Rights of the Accused”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 137-164(143). 264 Ibid, p. 145. Page 46 of 66 the Prosecution have an interest in fairness and thus Amended Rule 68(2)(d) could be argued to ensure that fairness by countering the effects of witness interference, this cannot trump the accused’s right to fair trial which Amended Rule 68(2)(d), as demonstrated in Chapter 2, encroaches upon.

3.2 - Amended Rule 68(2)(d) at a “Legal Crossroads” In light of this legal discussion we arrive at the situation where the use of Amended Rule 68(2)(d) appears detrimental to the accused due to its encroachment on fair trial guarantees as evidenced in Chapter 2. These guarantees arguably have to take primacy over any competing interests, no matter how “just” these may be. The rights of the accused are not arguably simply human rights guarantees, they are necessary to ensure the epistemological process for fact finding in criminal proceedings.265 Respecting the rights of the accused is a crucial and necessary component to establish accurate truth finding, which in turn ensures credibility of the judicial process.266 If those fair trial guarantees are sidelined then the legitimacy of proceedings falls away, as noted by Zappalà there is “no truth that can be reached without full respect of the rights of the accused”.267

Given that it is unlikely that Amended Rule 68(2)(d) will be revoked, the author would stress the need to abide by the notion that this rule should only be utilised as an absolute measure of last resort268, placing more emphasis on its symbolic value as a disincentive for witness interference rather than its actual use.269 However, this leads us to a form of “legal crossroads” so to speak, faced with the issue where Amended Rule 68(2)(d) appears inherently detrimental to the accused due to its encroachment on fair trial guarantees, yet there still remaining a need to combat the problem of witness interference. This begs the question that given that Amended Rule 68(2)(d) is an inadequate mechanism to deal with the effects of witness interference, what alternatives do we have?

265 Zappalà, “The Rights of Victims v. the Rights of the Accused”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 137-164(145). 266 Ibid.

267 Ibid.

268 International Bar Association, “Rule 68 Amendment Proposal”, IBA ICC Programme Legal Opinion, 12 November 2013, p.5 available at: http://www.ibanet.org/Document/Default.aspx?DocumentUid=6B68A33A-5D59-4C82- BE6A-327D44122D4E [Last accessed 16 June 2016]. 269 For discussion of deterrent effect of the rule see: Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, para. 34, available at: https://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-37-Add1-ENG.pdf [Last accessed 16 June 2016]. Page 47 of 66 3.3 - Article 56 and the “Unique Investigative Opportunity” - An Alternative to Amended Rule 68(2)(d)

3.3.1 Article 56 as a means to combat Witness Interference Article 56 of the Rome Statute presents an alternative to Amended Rule 68(2)(d), and is known as the “unique investigative opportunity”.270 This provision is unique to the ICC and does not appear in any of the respective statutes of the ad hoc tribunals.271 The general premise to Article 56 is that it presents an exception from the general rule that evidence must be presented at trial and allows for collection of evidence under the oversight of the Pre Trial Chamber during the investigation stage, which is later made available for use at trial.272 Article 56 is applicable where the Prosecutor considers during the investigation that there is a unique opportunity to collect evidence, such as the testimony or a statement from a witness, which may not be available for the purposes of a trial.273 If this situation arises then the Prosecutor can request the Pre Trial Chamber to take extraordinary measures to preserve that evidence.274 These measures can include, inter alia, the questioning of witnesses under audio or video recording with both the Prosecution and defence present to cross examine the witness, overseen by the supervision of the Pre Trial Chamber.275 If measures are taken under Article 56 then there is a duty to inform the defence so that they can be heard on the matter and that their rights are protected.276 Once evidence is collected under Article 56 it is kept for use at trial, though it should be noted that discretion remains with the Trial Chamber to determine whether such evidence collected under Article 56 is admissible and what weight they apportion to it.277

270 Article 56 Rome Statute.

271 However, the ICTR provides for something similar in the form of a “special deposition” in its RPE, see Rule 71bis(O) Rules of of Procedure and Evidence of the ICTR. See also: Kress, “The Procedural law of the International Criminal Court in Outline: Anatomy of a Unique Compromise”, (2003) Journal of International Criminal Justice, Vol. 1, pp. 603-617(607). 272 Klamberg, Commentary to the Rome Statute, Case Matrix Network, available at: http://www.casematrixnetwork.org/ cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome-statute-part-5/#c2098 [Last accessed 16 June 2015].

273 Article 56(1)(a) Rome Statute. 274 Article 56(1)(b) Rome Statute.

275 Article 56(2) Rome Statute. See also Rule 112(5) Rules of Procedure and Evidence of the ICC.

276 Article 56(1)(c) Rome Statute. See also Rule 114(1) Rules of Procedure and Evidence of the ICC. 277 Article 56(4) Rome Statute. Page 48 of 66 As an alternative to Amended Rule 68(2)(d), Article 56 can specifically be used by the Prosecution where they feel that a witness will not be able to testify at trial later due to witness interference.278 Article 56 has recently been used twice in this regard in the case against Dominic Ongwen.279 In this case the Prosecutor applied to the Pre Trial Chamber to utilise Article 56 due to the pressure that several witnesses had been subjected to, which the Prosecution felt could impact their willingness to testify at trial.280 The Pre Trial Chamber in granting the use of Article 56 noted that “not only physical conditions may pose a risk to the subsequent availability of testimony, but that any such risk may equally result from interference on the part of third persons causing a witness not to attend when called to testify at trial”.281 Judge Tarfusser felt it warranted that measures be taken to preserve the evidence of these witnesses which included the witnesses testifying under oath before the Chamber, in the presence of the Prosecutor and the defence.282 Furthermore, he noted that both parties would have the opportunity to question the witnesses283 and ordered that the testimony be video recorded and written transcripts be made.284

3.3.2 - Benefits of the Unique Investigative Opportunity On the basis of this discussion it appears that this mechanism presents a more attractive option for combatting witness interference compared with Amended Rule 68(2)(d). This is primarily due to the fact that the fair trial guarantees for the defence are better safeguarded through the use of Article 56 as it allows for both parties to question and cross examine the witness285, unlike Amended Rule 68(2)(d) where cross examination is denied.286 In allowing the defence to participate and cross examine the witness, Article 56 compensates for the diminution of the accused’s right to

278 Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1415. 279 ICC, Prosecutor v Dominic Ongwen, ICC-02/04-01/15, Decision on the ‘Prosecution application for the Pre-Trial Chamber to preserve and take measures under article 56 of the Rome Statute, PT.Ch, 27 July 2015 (23 March 2016) [hereafter referred to as ‘Ongwen First Article 56 Decision’]; ICC, Prosecutor v Dominic Ongwen, ICC-02/04-01/15, Decision on the ‘Second Prosecution application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute, PT.Ch, 12 October 2015 (23 March 2016) [hereafter referred to as ‘Ongwen Second Article 56 Decision’].

280 Ibid, Ongwen First Article 56 Decision, paras. 1 & 5; Ibid, Ongwen Second Article 56 Decision, para. 2. 281 Ibid, Ongwen First Article 56 Decision, para. 7; Ibid, Ongwen Second Article 56 Decision, para. 9.

282 Ibid, Ongwen First Article 56 Decision, para. 9; Ibid, Ongwen Second Article 56 Decision, para. 10. 283 Ibid, Ongwen First Article 56 Decision, para. 11.

284 Ibid, Ongwen First Article 56 Decision, para 9; Ibid, Ongwen Second Article 56 Decision, para. 10.

285 Ibid, Ongwen First Article 56 Decision, paras. 9 & 11. 286 See discussion above at 2.2.3. Page 49 of 66 confrontation at trial.287 It was noted that during the drafting process for Article 56 that the goal of the provision is to ensure the integrity of the proceedings and in particular to protect the rights of the defence.288 The fact that Article 56(1)(c) places a duty on the Prosecutor to inform the defence if Article 56 is resorted to in theory ensures the bipartisan nature of the proceedings and that both parties will play a role in the collection of evidence.289 This is in contrast to Amended Rule 68(2)(d) where statements are prepared wholly by the tendering party, with the opposing party playing no role in the collection or testing of such evidence.290 Article 56 further allows for the supervision by a member of the court291 which ensures that an external trier of fact can hear and observe the witness which can help in the determination of the witness’s credibility and veracity.292 Amended Rule 68(2)(d) obviously does not provide for this given that the witness does not appear in person before the court and thus this safeguard is lacking. Article 56 can similarly act as an important aid in combating the effects witness interference because it limits the time from when the witness is first identified to when they give their testimony, and thus reduces the chance that interference will prevent that witness from giving testimony.293

3.3.3 - Drawbacks of the Unique Investigative Opportunity However, Article 56 is not wholly without its own flaws. Measures under Article 56 can only be initiated by the Prosecution and they retain discretion on whether or not to initiate such proceedings.294 Although the Pre Trial Chamber may take measures where it considers that they are necessary, the Pre Trial Chamber’s intervention in this regard still needs to be triggered by a failure

287 Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1417.

288 Ibid, pp. 1412-1413. 289 Ibid, p. 1417.

290 See also discussion above at 2.3.2. 291 Article 56(2)(e) Rome Statute.

292 See O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538(513).

293 See, ICC, Ongwen First Article 56 Decision, para. 14; ICC, Prosecutor v Dominic Ongwen, ICC-02/04-01/15, Public redacted version of ‘Prosecution application for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute’, PT.Ch, 26 June 2015 (27 May 2015), para. 17. 294 Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1415. Page 50 of 66 of the Prosecutor to request them and it cannot undertake measures under Article 56 on its own.295 This arguably creates a risk of arbitrariness given that discretion lies wholly with the Prosecution and the defence cannot trigger measures under Article 56.296

In relation to cross examination, from a very practical standpoint it could be argued that although from a human rights perspective the right to cross examination is upheld, one would question whether cross examination at this stage so early in the proceedings is meaningful. Given that Article 56 can only be utilised at the Pre Trial stage, and can even be triggered before charges are brought or confirmed297, will the defence be in a position to know the nature and scope of the case at hand at this stage and carry out an effective cross examination?298 Furthermore, evidence collected under Article 56 is not heard in open court during trial and thus the Trial Chamber has to rely on observations made at the Pre Trial stage in order to determine what weight to attach to such evidence. This arguably will be less effective due to the fact that the collection of evidence under Article 56 can occur long before it is actually utilised at trial.

Finally, it is arguably important to note that Article 56 is an anticipatory mechanism, in that the interference will usually not yet have occurred.299 This leads to the situation where the Prosecution has to make a hypothetical determination that such interference will occur and thus measures under Article 56 are warranted.300 This speculative judgment could lead to uncertainty as to when such measures are necessary especially since discretion lies wholly with the Prosecution. This in turn could prejudice the accused with the Prosecution increasingly resorting to Article 56 to protect its

295 Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1418-1419.

296 However, note should be had to Article 57(3)(b) Rome Statute. 297 See wording of Article 56(1)(c) Rome Statute - “person who has been arrested or appeared in response to a summons”. See also: Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1416.

298 See: ICC, Prosecutor v Dominic Ongwen, ICC-02/04-01/15, Public Redacted Version of ‘Response to “Second Prosecution Application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, PT.Ch, 8 October 2015 (25 May 2016), para. 38.

299 Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1413. 300 Ibid, p. 1415. Page 51 of 66 case against witness interference instead of presenting evidence at trial where it can be tested and analysed first hand by those determining the guilt or innocence of the accused.

3.3.4 - Concluding Thoughts on the Unique Investigative Opportunity In short, Amended Rule 68(2)(d) and Article 56 together provide for two mechanisms by which to deal with the effects of witness interference on the evidence of witnesses. Article 56 represents a prospective measure, where the Prosecution anticipates that the witness may not be available for trial and thus takes measures to avoid the interference and takes the testimony of the witness before the witness is tampered with.301 Amended Rule 68(2)(d) on the other hand represents a retrospective measure, where the witness has already been interfered with and is no longer available at trial.302 However, which mechanism is preferable? Both provisions are not without their flaws, however, it could be argued that Article 56 represents the preferable mechanism given that it appears to encroach less on the fundamental fair trial rights of the accused compared with Amended Rule 68(2)(d). This has been acknowledged by the Prosecution in their application to use Article 56 in the ‘Ongwen’ case, where they noted that Article 56 was preferable due to the opportunity for cross examination and that if Amended Rule 68(2)(d) had to be resorted to instead then it would lead to the “undesirable outcome” where there would be no possibility for the defence to challenge the evidence.303 This observation implicitly acknowledges that allowing the defence opportunity to cross examine is also in the Prosecution’s interest. If evidence has been cross examined by both parties before a member of the Court, as possible under Article 56, then it arguably will carry more weight in the final verdict compared with an untested statement under Amended Rule 68(2)(d).304 It is therefore also in the interests of the Prosecution to utilise Article 56 as opposed to Amended Rule 68(2)(d) because in safeguarding the rights of the accused evidence under Article 56 will likely be more beneficial to the Prosecution’s case due to the fact that it has been tested in some form by both parties.

301 Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing, p. 1415.

302 Ibid.

303 ICC, Prosecutor v Dominic Ongwen, ICC-02/04-01/15, Public redacted version of ‘Prosecution application for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute’, PT.Ch, 26 June 2015 (27 May 2015), paras. 34-35. 304 There has been no case law or academic discussion to date expressly comparing weight of evidence under Article 56 and Amended Rule 68(2)(d), however, given that Article 56 allows for cross examination before a trier of fact this conclusion is logical. See also: McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989(981-982). Page 52 of 66 Conclusion

The ICC, and indeed international criminal law itself, is currently facing an uphill battle against witness interference and there is an overwhelming need to do something about it and counter its effects. However, in doing so there is also the need to ensure the legitimacy of the trial process for those with the greatest interest in ensuring a fair trial: the accused themselves. Can these two ideals be reconciled, or are we simply faced with the situation where one must yield to the other? Amended Rule 68(2)(d) is a provision that encapsulates this tension. By utilising the rule to tackle to the problem of witness interference it encroaches on the rights of the accused305, yet in refraining from its use the effects of witness interference can go somewhat unchallenged. In light of the foregoing discussion it would appear that the rights of the accused in proceedings carry primacy and thus in relation to these rights it would appear that the interest in tackling witness interference must take a more compromised position.306

This work explored the research question of whether Amended Rule 68(2)(d) reconciles with fair trial guarantees provided by the ICC, in light of the problem of witness interference. It has been demonstrated that Amended Rule 68(2)(d) encroaches upon several fundamental fair trial guarantees such as the principle of orality and the right to cross examination, as well as the right to ensure that prejudicial evidence is excluded from the record.307 Despite this, it appears from the analysis and discussion contained in this work that the question of the rule’s legality hinges somewhat on the way the rule is applied in practice. The fact that the rule allows for the possibility that an accused could be convicted on the basis of an untested, and potentially unreliable written statement is concerning, indeed although in practice a Chamber would be unlikely to do so, the possibility is not foreclosed. It is too early to tell how Amended Rule 68(2)(d) will be utilised due to the fact that it is still very early on in its lifespan308, however, given that witness interference is a problem that that does not appear to be diminishing any time soon, resort to Amended Rule 68(2)(d) should not be underestimated. In short, Amended Rule 68(2)(d) raises just as many issues as it does solutions. The potential for prejudice to the accused caused by the rule’s use is great and thus the

305 See above discussion in Chapter 2.

306 See above discussion in Chapter 3.

307 See above discussion in Chapter 2. 308 Resolution ICC-ASP/12/Res.7 - Amendments to the Rules of Procedure and Evidence, 27 November 2013, available at: https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdf [Last accessed 16 June 2016]. Page 53 of 66 author concludes that the rule should be a measure of last resort when there are no alternatives. Furthermore, where the rule is utilised the rights of the accused should always be a paramount consideration, with the tendering party and the Chamber remaining vigilant in this regard and ensuring that other interests do not trump these rights, regardless of the normative underpinnings of such interests.

However, there is still a need to combat the effects of witness interference and thus an alternative needs to be sought. This alternative arguably exists in the form of Article 56 of the Rome Statute, encompassing the “Unique Investigative Opportunity”. This provision eases the tension between the rights of the accused and the interest in combatting witness interference by ensuring that the rights of the accused are catered for when allowing evidence of a witness that may be subject to interference to be admitted. Although this mechanism is not without its flaws in that it does deny the Trial Chamber the chance to hear the witness first hand and similarly could be argued to deny effective cross examination, it represents a more acceptable option compared with Amended Rule 68(2)(d).

In short, no option is perfect and it should be remembered that although it is essential that the ICC delivers justice according to the highest standards of due process, it is also important that they deliver justice.309 Given the realities of international criminal law there will probably never be a perfect solution and trying to strike the perfect balance between combatting witness interference and upholding the rights of the accused is likely to remain a challenge for a long time to come.

Word Count - 14,997 (excluding footnotes)

309 Trotter, “Witness Intimidation in International Trials: Balancing the Need for Protection Against the Rights of the Accused”, (2012) George Washington International Law Review, Vol.44, pp. 521-537(537). Page 54 of 66 Bibliography

Statutes, Conventions and Legal Instruments - Assembly of States Parties to the International Criminal Court, Resolution ICC-ASP/12/Res.7 - Amendments to the Rules of Procedure and Evidence, (27 November 2013) - European Convention on Human Rights, (4 November 1950) - International Covenant on Civil and Political Rights, (19 December 1966) - Rome Statute of the International Criminal Court, (17 July 1998) - Rules of Procedure and Evidence of the International Criminal Court, (10 September 2002) - Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, (29 June 1995) - Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, (11 February 1994) - Statute of the International Criminal Tribunal for the Former Yugoslavia, (25 May 1993) - UN Security Council, Resolution 1503, S/RES/1503, (28 August 2003)

Cases International Criminal Tribunal for the former Yugoslavia - Prosecutor v Aleksovski, IT-95-14 - Decision on PRosecutor’s Appeal on Admissibility of Evidence, A.Ch, 16 February 1999. - Prosecutor v Blaškić, IT-95-14 - Decision on the Standing Objection of the Defence to the Admission of Hearsay with No Inquiry as to its Reliability, T.Ch, 21 January 1998. - Prosecutor v Boškoski and Tarčulovski, IT-04-82 - Trial Judgment, T.Ch, 10 July 2008. - Prosecutor v Brdanin , IT-99-36 - Trial Judgment, T.Ch, 1 September 2004. - Prosecutor v Delalić et al, IT-96-21 - Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudeonymed ‘B’ through to ‘M’, T.Ch, 28 April 1997. - Decision on the Motion on Presentation of Evidence by the Accused, Esad Landžo, T.Ch, 1 May 1997.

Page 55 of 66 - Decision to Allow Witness K, L and M to give their Testimony by Means of Video-Link Conference, T.Ch, 28 May 1997. - Prosecutor v Dordervić et al, IT-05-87 - Trial Judgment, T.Ch, 23 February 2011 - Prosecutor v Furundžija, IT-95-17 - Appeals Judgment, A.Ch, 21 July 2000 - Prosecutor v Galić, IT-98-29 - Decision on Interlocutory Appeal Concerning Rule 92bis (C), A.Ch, 7 June 2002. - Prosecutor v Gotovina et al, IT-06-90 - Trial Judgment, T.Ch, 15 April 2011. - Prosecutor v Halilović, IT-01-48 - Decision on Motion for Prosecution Access to Defence Documents, T.Ch, 9 May 2005. - Prosecutor v Haraqija & Morina, IT-04-84-R77.4 - Appeals Judgment, A.Ch, 23 July 2009. - Prosecutor v Haradinaj et al, IT-04-84 - Reasons for Trial Chamber’s Decision to Exclude the Evidence of Witness 55 Under Rule 89(D) and Deny His Testimony Pursuant to Rule 92quater, T.Ch, 14 December 2007. - Trial Judgment, T.Ch, 3 April 2008. - Appeals Judgment, A.Ch, 19 July 2010. - Prosecutor v Karadžić, IT-95-5/18 - Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92quater, T.Ch, 20 August 2009. - Decision on Prosecution’s Motion for Admission of the Evidence of KDZ172 (Milan Babić) Pursuant to Rule 92quater, T.Ch, 13 April 2010. - Prosecutor v Kordić & Čerkez, IT-95-14/2 - Decision on Appeal Regarding the Statement of a Deceased Witness, A.Ch, 21 July 2000. - Prosecutor v Krajišnik, IT-00-39 - Trial Judgment, T.Ch, 27 September 2006. - Prosecutor v Kvočka et al, IT-98-30/1 - Oral Decision on the Admissibility of Prior out-of-court statements, T.Ch, 4 July 2000. - Prosecutor v Limaj et al, IT-03-66 - Trial Judgment, T.Ch, 30 November 2005.

Page 56 of 66 - Prosecutor v Margetić, IT-95-14 - Judgment on Allegations of Contempt, T.Ch, 7 February 2007. - Prosecutor v Martić, IT-95-11 - Decision on Defence Motion to Exclude the Testimony of Witness Milan Babić, Together with Associated Exhibits, From Evidence, T.Ch, 9 June 2006 - Prosecutor v Milosević, IT-02-54 - Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements, A.Ch, 21 October 2003. - Separate Opinion of Judge Shahabuddeen Appended to Appeals Chamber’s Decision Dated 30 September 2003 on Admissibility of Evidence in Chief in the Form of Written Statements, A.Ch, 31 October 2003. - Prosecutor v Milutinović, IT-05-87 - Decision Denying Prosecution’s Request for Certification of Rule 73bis issue of Appeal, T.Ch, 30 August 2006. - Decision on Evidence Tendered through Sandra Mitchell and Frederick Abrahams, T,Ch, 1 September 2006. - Prosecutor v Prlić et al, IT-04-AR73.6 - Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 relating to Cross Examination by Defence and on Association on Defence Counsel’s Request for Leave to file an Amicus Curiae Brief, A.Ch, 4 July 2006. - Decision on Appeals against decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, A.Ch, 23 November 2007. - Prosecutor v Rasić, IT-98-32/1 - Appeals Judgment, A.Ch, 16 November 2012. - Prosecutor v Šešelj, IT-03-67 - Public Redacted Version of “Judgment” issued on 30 May, A.Ch, 30 May 2013 - Trial Judgment, T.Ch, 31 March 2016. - Partially Dissenting Opinion of Judge Flavia Lattanzi, T.Ch, 31 March 2016. - Prosecutor v Simić et al, IT-95-9-R77 - Judgment in the Matter of Contempt Allegations against an Accused and his Counsel, T.Ch, 30 June 2000.

Page 57 of 66 - Prosecutor v Tadić, IT-94-I-T - Decision on Defence Motion on Hearsay, T.Ch, 5 August 1996. - Trial Judgment, T.Ch, 7 May 1997.

International Criminal Tribunal for Rwanda - Prosecutor v Akayesu, ICTR-96-4 - Appeals Judgment, A.Ch, 1 June 2001. - Prosecutor v Bagasora et al, ICTR-98-41 - Decision on Admissibility of Evidence of Witness DBQ, T.Ch, 18 November 2003. - Prosecutor v Bizimungu Casimir et al, ICTR-99-50 - Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial Without Undue Delay, T.Ch, 29 May 2007. - Prosecutor v Gatete, ICTR-00-61 - Trial Judgment, T.Ch, 31 March 2011. - Prosecutor v Karemera et al, ICTR-98-44 - Decision on Severance of André Rwamakuba and Amendments of the Indictment, T.Ch, 7 December 2004. - Judgment and Sentence, T.Ch, 2 February 2012. - Prosecutor v Ntahobali et al, ICTR-98-42 - Decision on Ntahobali’s Motion to Admit Knayabashi’s Custodial Statements, T.Ch, 15 September 2006. - Prosecutor v Rwamakuba, ICTR-98-44C - Decision on Defence Motion for Stay of Proceedings, T.Ch, 3 June 2005. - Prosecutor v Simba, ICTR-01-76 -Trial Judgment, T.Ch, 13 December 2005.

Special Court for Sierra Leone - Independent Counsel v Bangura, Kargbo, Kanu and Kamera, SCSL-2011-2 - Judgment in Contempt Proceedings, T.Ch, 25 September 2012. - Prosecutor v Taylor, SCSL-03-01 - Trial Judgment, T.Ch, 18 May 2012.

Page 58 of 66 International Criminal Court

Situation in Uganda - Prosecutor v Joseph Kony et al, ICC-02/04-01/05 - Decision on Prosecutor’s Application for Leave to Appeal Dated the 15th day of May 2006, PT.Ch, 10 July 2006. - Decision on the Prosecution’s Application for Leave to Appeal the Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/0 and a/0111/06 to a/0127/06, PT. Ch, 19 December 2007. - Prosecutor v Dominic Ongwen, ICC-02/04-01/15 - Public redacted version of ‘Prosecution application for the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute’, PT.Ch, 26 June 2015 (27 May 2015). - Public Redacted Version of ‘Response to “Second Prosecution Application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute”, PT.Ch, 8 October 2015 (25 May 2016). - Decision on the ‘Prosecution application for the Pre-Trial Chamber to preserve and take measures under article 56 of the Rome Statute, PT.Ch, 27 July 2015 (23 March 2016). - Decision on the ‘Second Prosecution application to the Pre-Trial Chamber to preserve evidence and take measures under article 56 of the Rome Statute, PT.Ch, 12 October 2015 (23 March 2016).

Situation in the Côte d’Ivoire - Prosecutor v Laurent Gbagbo & Charles Blé Goudé, ICC-02/11-01/15 - Decision on the Prosecution’s request to designate a person authorised to witness a declaration under Rules 68(2)(b) of the Rules, T.Ch, 21 October 2015.

Situation in the Democratic Republic of the Congo - Prosecutor v Germain Katanga, ICC-01/04-01/07 - Minority Opinion of Judge Christine Van den Wyngaert, T.Ch, 7 March 2014. - Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06 - Decision on the Admissibility of 4 Documents, T.Ch, 13 June 2008.

Page 59 of 66 - Prosecutor v Callixte Mbarushimana, ICC-01/04-01/10 - Decision on Conformation of Charges, PT.Ch, 16 December 2011. - Prosecutor v Mathieu Ngudjolo Chui, ICC-01/04-02/12 - Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’, A.Ch, 7 April 2015. - Prosecutor v Bosco Ntaganda, ICC-01/04-02/06 - Decision on Prosecution request seeking the admission of the medical report related to Witness P-0790, T.Ch, 9 May 2016. - Final Written Submission of the Common Legal Representative oft he Victims of the Attacks following the Confirmation of Charges Hearing, PT.Ch, 7 March 2014.

Situation in the Central African Republic - Prosecutor v Jean Pierre Bemba Gombo, ICC-01/05-01/08 - Public Redacted Version of the 26 September 2011 Decision on the Accused’s Application. for Provisional Release in Light of the Appeals Chamber’s Judgment of 19 August 2011, T.Ch, 27 September 2011. - Prosecutor v Jean Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fiedèle Babala Wandu & Narcisse Arido, ICC-01/05-01/13 - Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 11 November 2014. - Prosecutor’s Opening Remarks at Trial, T.Ch, 29 September 2015.

Situation in the Republic of Kenya - Prosecutor v Francis Yirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11 - Prosecution notification of withdrawal of the charges against Francis Yirimi Muthauara, 11 March 2013. - Notice of Withdrawal of the charges against Uhuru Muigai Kenyatta, 5 December 2014. - Prosecutor v William Samoei Ruto & Joshua Arap Sang, ICC-01/09-01/11 - Decision on Prosecution Request for Admission of Prior Recorded Testimony, T,Ch, 19 August 2015. - Separate, Partly Concurring Opinion of Judge Eboe-Osuji on the ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, T.Ch, 19 August 2015. - Public redacted version of the “Ruto Defence appeal against the ‘Decision on Prosecution Request for Admission of prior Recorded Testimony’, A.Ch, 6 October 2015. Page 60 of 66 - Public Redacted Version of Sang Defence Appeal against the Decision of Trial Chamber V(A) of 19 August 2015 entitled ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony, A.Ch, 13 October 2015. - The African Union’s Amicus Curiae Observations on the Rule 68 Amendments at the Twelfth Session of the Assembly of States Parties, A.Ch, 19 October 2015. - Public Redacted Version of “Prosecution’s Consolidated Response to the Appeals of Mr Ruto and Mr Sang against the ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, A.Ch, 3 November 2015 - Judgment on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recored Testimony”, A.Ch, 12 February 2016. - Decision on Defence Applications for Judgments of Acquittal, T.Ch, 5 April 2016. - Prosecutor v Paul Gicheru & Philip Kipkoech Bett, ICC-01/09-01/15 - Decision on the “Prosecution's Application under Article 58(1) of the Rome Statute, PT.Ch, 10 March 2015. - Prosecutor v Walter Osapiri Barasa, ICC-01/09-01/13 - Warrant of arrest for Walter Osapiri Barasa, PT.Ch, 2 August 2013.

European Court of Human Rights - Al-Khawaja & Tahery v The United Kingdom, Application Nos. 26766/05 & 22228/06, 15 December 2011. - Eckle v Germany, Application No. 8130/78, 15 July 1982. - Kornev & Karpenko v Ukraine, Application No. 17444.04, 21 October 2010. - Krasniki v The Czech Republic, Application No. 51277/99, 28 February 2006. - Lucà v Italy, Application No. 33354/96, 27 February 2001. - Sadak & Others v Turkey (No. 1), Application Nos. 29900/96, 29901/96, 29902/96 & 29903/96, 17 July 2001.

Books - Fedorova, The Principle of Equality of Arms in International Criminal Proceedings, 2012, Intersentia. - Klamberg, Evidence in International Criminal Trials - Confronting Legal Gaps and the Reconstruction of Disputed Events, 1st edition, 2013, Martinus Nijhoff Publishers. Page 61 of 66 - McDermott, “Rights in Reverse: A Critical Analysis of Fair Trial Rights Under International Criminal Law”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited, - Schabas, “The International Criminal Court: A Commentary on the Rome Statute”, 2010, 1st edition, Oxford University Press. - Stover, “The Witnesses: War Crimes and The Promise of justice in The Hague”, (2005), 2nd edition, University of Pennsylvania Press. - Tochilovsky, The Law and Jurisprudence of the International Criminal Tribunals and Courts, 2nd edition, 2014, Intersentia.

Contributions to edited books - Acquaviva, Combs, Heikkilä, Linton, McDermott & Vasiliev “Trial Process” in Sluiter, Friman, Linton, Vasliev & Zappalà (eds) International Criminal Procedure: Principles and Rules, 1st edition, 2013, Oxford University Press. - Cassese, “The Rationale for International Criminal Justice”, in Cassese et al (eds), The Oxford Companion to International Criminal Justice, 1st edition, 2009, Oxford University Press. - Gosnell, “Admissibility of Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press. - Guariglia & Hochmayr, “Article 56: Role of the Pre Trial Chamber in relation to a unique investigative opportunity”, in Triffterer & Ambos The Rome Statute of the International Criminal Court: A Commentary, (2016), 3rd edition, Hart Publishing. - Nerenberg & Timmerman, “Documentary Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press. - Rohan, “Rules Governing the Presentation of Testimonial Evidence” in Khan, Buisman, Gosnell (eds) Principles of Evidence in International Criminal Justice, 1st edition, 2010, Oxford University Press. - Rohan, “Protecting the Rights of the Accused in International Criminal Proceedings: Lip Service or Affirmative Action?”, in Schabas et al (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives, 1st edition, 2013, Ashgate Publishing Limited.

Page 62 of 66 Journal Articles - Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles”, (2003) Berkeley Journal of International Law, Vol. 21, pp. 288-349. - Caianiello, “First Decisions on the Admission of Evidence at ICC Trials - A Blending of Accusatorial and Inquisitorial Models?” (2011) Journal of International Criminal Justice, Vol. 9, pp. 385-410. - Caianiello, “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models”, (2011) North Carolina Journal of International Law & Commercial Regulation, Vol.36, pp. 287-318. - Cryer, “Witness Tampering and International Criminal Tribunals”, (2014) Leiden Journal of International Law, Vol. 27, pp. 191-203. - de Brouwer, “The Problem of Witness Interference before International Criminal Tribunals”, (2015) International Criminal Law Review, Vol. 15, pp. 700-732. - Damaska, “What is the Point of International Criminal Justice?” (2008) Chicago Kent Law Review, Vol. 83, pp. 329-365. - Harmon & Gaynor, “Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings”, (2004) Journal of International Criminal Justice, Vol. 2, pp. 403-426. - Hiéramente, Müller & Ferguson, “Barasa, Bribery and beyond: Offices against the Administration of Justice at the International Criminal Court”, (2014) International Criminal Law Review, pp. 1123-1149. - Kress, “The Procedural law of the International Criminal Court in Outline: Anatomy of a Unique Compromise”, (2003) Journal of International Criminal Justice, Vol. 1, pp. 603-617. - Lehnardt, “One Small Step for Women: Female Friendly Provisions in the Rome Statute of the International Criminal Court”, (2002) Brigham Young University Journal of Public Law, Vol. 16(2), pp. 317-354. - Marx, “Intimidation of Defense Witnesses at the International Criminal Tribunals: Commentary and Suggested Legal Remedies”, (2007) Chicago Journal of International Law, Vol. 7, pp. 675-694. - McDermott, “The Admissibility and Weight of Written Testimony in International Criminal Law: A Socio-Legal Analysis”, (2013) Leiden Journal of International Law, Vol. 26, pp.971-989.

Page 63 of 66 - Trotter, “Witness Intimidation in International Trials: Balancing the Need for Protection against the Rights of the Accused”, (2012) George Washington International Law Review, Vol. 44, pp. 521-537. - Mundis, “The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals”, (2005) American Journal of International Law, Vol.99, pp. 142-158. - Murphy, “No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 539-573. - O-Gon Kwon, “The Challenge of an International Criminal Trial as Seen from the Bench”, (2007) Journal of International Criminal Justice, Vol. 5, pp. 360-376. - O’Sullivan & Montgomery, “The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 511-538. - Safferling, “The Rights and Interests of the Defence in the Pre-Trial Phase”, (2011) Journal of International Criminal Justice, Vol. 9, pp. 651-667. - Sluiter, “The ICTY and Offences against the Administration of Justice”, (2004) Journal of International Criminal Justice, Vol. 2, pp. 631-641. - Wald, “ICTY Judicial Proceedings: An Appraisal from Within”, (2004) Journal of International Criminal Justice, Vol. 2, pp.466-473. - Walker, “The Yugoslav War Crimes Tribunal: Recent Developments”, (1997) Whitter Law Review, Vol. 19, pp. 303-312. - Zappalà, “The Rights of Victims v. the Rights of the Accused”, (2010) Journal of International Criminal Justice, Vol. 8, pp. 137-164.

Official Publications - Assembly of States Parties, “Report of the Working Group on Amendments”, ICC-ASP/12/44, 24 October 2013, available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-44- ENG.pdf. - Assembly of States Parties, “Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties - Annex II.A, Recommendation on a proposal to amend rule 68 of the Rules of Procedure and Evidence (Prior Recorded Testimony)”, ICC-ASP/12/37/Add.1, 31 October 2013, available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-37- Add1-ENG.pdf.

Page 64 of 66 - Assembly of States Parties, “Twelfth Session Official Records: Vol. 1”, available at: https:// asp.icc-cpi.int/iccdocs/asp_docs/ASP12/OR/ICC-ASP-12-20-ENG-OR-vol-I.pdf - United Nations General Assembly & Security Council, “Seventeenth annual report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”, A/65/205-S/2010/413, 30 July 2010, available at: http://www.icty.org/x/file/About/ Reports%20and%20Publications/AnnualReports/annual_report_2010_en.pdf

Newspaper Articles, Press Releases & Other Online Documents - Amnesty International, “Croatia: Protect War Crimes Witnesses”, 10 February 2011, available at: https://amnestyconcordia.wordpress.com/2011/02/10/take-action-croatia-protect-war-crimes- witnesses/. - Anonymous, “Being named an ICC witness has left me fearing death”, The Hague Trials Kenya, 12 December 2013, available at: https://thehaguetrials.co.ke/article/being-named-icc-witness- has-left-me-fearing-death - allafrica.com, “Kenya: Ocampo Witnesses Escape Death”, 5 January 2010, available at: http:// allafrica.com/stories/201001050912.html. - BBC News, “Claims of witnesses in Kenya ICC trial ‘disappearing’”, 8 February 2013, available at: http://www.bbc.com/news/world-africa-21382339 - BBC News, “Kenya ‘ICC defence witness’ in Ruto’s trial killed”, 6 January 2015, available at: http://www.bbc.com/news/world-africa-30703876. - BBC News, “Kenya’s William Ruto trial: ICC judge warns bloggers”, 18 September 2013, available at: http://www.bbc.com/news/world-africa-24151392. - Bell, “Justice Delayed is Justice Denied”, The Guardian, 22 July 2008, available at: http:// www.theguardian.com/commentisfree/2008/jul/22/radovankaradzic.warcrimes3 - Human Rights Watch, “ICC: Kenya Deputy President’s Case Ends”, 5 April 2016, available at: https://www.hrw.org/news/2016/04/05/icc-kenya-deputy-presidents-case-ends - International Bar Association, “Balancing Rights: The International Criminal Court at a Procedural Crossroads” May 2008, available at: http://www.ibanet.org/Document/Default.aspx? DocumentUid=A88038DA-239D-4694-998F-715A472DE0E8 - International Bar Association, “Rule 68 Amendment Proposal”, IBA ICC Programme Legal Opinion, 12 November 2013, available at: http://www.ibanet.org/Document/Default.aspx? DocumentUid=6B68A33A-5D59-4C82-BE6A-327D44122D4E Page 65 of 66 - Journalists for Justice, “Bribery, intimidation of witnesses undermines justice for victims”, 6 April 2016, available at: http://www.jfjustice.net/en/icc-cases/bribery-intimidation-of-witnesses- is-undermines-justice-for-victims - Kersten, Smith & Andristyak, “Intimidated Witnesses, ICC Judges, and ‘Justice’ - Mission Creep or a Revolution Long Overdue?”, 2 June 2016, available at: https://justiceinconflict.org/ 2016/06/02/intimidated-witnesses-icc-judges-and-justice-mission-creep-or-a-revolution-long- overdue/ - Klamberg, Commentary to the Rome Statute, Case Matrix Network, available at: http:// www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome- statute/commentary-rome-statute-part-5/#c2098 - MacCarrick, “Lessons from the Milosevic Trial”, Global Policy Forum, 26 April 2006, available at: https://www.globalpolicy.org/component/content/article/163/29362.html. - Maliti, “ICC Prosecutor Asks Court to Admit as Evidence Statements of Witnesses Who Recanted”, 4 June 2015, available at: http://www.ijmonitor.org/2015/06/icc-prosecutor-asks- court-to-admit-as-evidence-statements-of-witnesses-who-recanted/ - Marshall, “Balkans War Crimes Trial Opens: But Intimidation of Witnesses Hurts Prosecution’s Case”, Montreal Gazette, 8 May 1996. - Momanyi & Jennings, “Kenya Witnesses Face Harrassment” Institute for War & Peace Reporting, 5 June 2013, available at: https://iwpr.net/global-voices/kenya-witnesses-face- harassment - Office of the Prosecutor of the International Criminal Court, “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the status of the Government of Kenya’s cooperation with the Prosecution’s investigations in the Kenyatta case”, 5 December 2014, available at: https://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/ Pages/otp-stat-04-12-2014.aspx. - Office of the Prosecutor of the International Criminal Court “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta”, 5 December 2014, available at: https://www.icc-cpi.int/en_menus/icc/ press%20and%20media/press%20releases/Pages/otp-statement-05-12-2014-2.aspx - Office of the Prosecutor of the MICT, “Statement by MICT Prosecutor Serge Brammertz Regarding Appeal of the Vojislav Šešelj Trial Judgment”, 6 April 2016, available at: http:// www.unmict.org/en/news/statement-mict-prosecutor-serge-brammertz-regarding-appeal-vojislav- seselj-trial-judgement Page 66 of 66