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 Tadi". 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.