American University International Law Review Volume 15 | Issue 3 Article 3 2000 International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the "Priest- Penitent" Privilege Under International Law Robert John Araujo S.J. Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Araujo, S.J., Robert John. "International Tribunals and Rules of Evidence: The asC e for Respecting and Preserving the "Priest-Penitent" Privilege Under International Law." American University International Law Review 15, no. 3 (2000): 639-666. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. INTERNATIONAL TRIBUNALS AND RULES OF EVIDENCE: THE CASE FOR RESPECTING AND PRESERVING THE "PRIEST-PENITENT" PRIVILEGE UNDER INTERNATIONAL LAW ROBERT JOHN ARAUJO, S.J." INTRODUCTION .............................................. 640 I. THE PRIEST-PENITENT PRIVILEGE'S ORIGINS ........ 643 II. THE PRIVILEGE AT CIVIL AND COMMON LAW ....... 648 A. EUROPE, CANADA, AUSTRALIA, AND NEW ZEALAND ....... 648 B. THE UNITED STATES ...................................... 657 Ed. THE PRIVILEGE UNDER INTERNATIONAL LAW ....... 661 CONCLU SION ................................................. 665 The Lord spoke to Moses, saying: Speak to the Israelites-When a man or woman wrongs another, breaking faith with the Lord, that person in- curs guilt and shall confess the sin that has been committed. The person shall make full restitution for the wrong, adding one fifth to it, and giving it to the one who was wronged!' If we confess our sins, he who is faithful and just will forgive us our sins and cleanse us from all unrighteousness. * Advisor to the Holy See; Professor of Law, Gonzaga University. LL.M. and J.S.D., Columbia University; B.C.L., Oxford University; A.B. and J.D., George- town University. The author would like to thank Messrs. Jamie Boyd, J.D., 2000 and Dil Gosal, J.D., 2000, of the School of Law of Gonzaga University for their generosity in tracking down several elusive textual sources. 1. Numbers 5:5-7. 2. 1 John 1:9. See generally CATECHISM OF THE CATHOLIC CHURCH, para. 1441 (noting that in the Catholic Church, only God may forgive sins). However, "[s]ince Christ entrusted to his apostles the ministry of reconciliation, bishops who 640 AM. U. INT'L L. REV. [15:639 INTRODUCTION During the summer of 1998 in Rome, the Diplomatic Conference of Plenipotentiaries for the Establishment of an International Crimi- nal Court established a Preparatory Commission ("Prep Corn") to generate Rules of Procedure and Evidence.' Amongst its responsi- bilities, the Prep Corn was charged with the responsibility of ad- dressing exceptions to the receipt of evidence based on confidential privilege. However, the Statute adopted at the Diplomatic Confer- ence 4 simply stated that, "[tihe Court shall respect and observe privileges on confidentiality as provided for in the Rules of Proce- dure and Evidence."' While the Statute did not identify which privi- leges to include in the Rules of Procedure and Evidence, it employed the mandatory "shall" rather than the discretionary "may" to indicate that these privileges-once identified-would exclude otherwise relevant evidence.6 Even though Article 69 of the Statute was silent on specific privileges, the Diplomatic Conference did address and identify certain privileges. In particular, the Working Group on Procedural Matters of the Committee of the Whole discussed the possible inclusion of certain privileges, including the privileges specific to lawyer-client, doctor- patient, and priest-penitent relationships. The Prep Coin acknowl- edged the legacy of this work. Accordingly, it was reminded of the are their successors, and priests, the bishops' collaborators, continue to exercise this ministry." Id. para. 1461. By virtue of the sacrament of Holy Orders, bishops and priests have the power to forgive sins "in the name of the Father, and of the Son, and of the Holy Spirit." Id. Moreover, "[t]he confessor is not the master of God's forgiveness, but its servant." Id. para. 1466. 3. See Final Act of the United Nations Diplomatic Conference of Plenipoten- tiaries on the Establishment of an International Criminal Court, A/CONF. 183/10, 17 July 1998, Res. F (setting forth the duty of the Commission to prepare proposals not only for the addressing of Rules of Procedure and Evidence, but also for the Elements of Crimes thus demonstrating the importance of the Prep Coms). 4. See Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998 [hereinafter Rome Statute] (establishing the International Criminal Court). 5. Id. art. 69.5. 6. See id. (noting that the Court shall respect privileges on confidentiality). 7. See Report of the Working Group on Procedural Matters, A/CONF. 183/C. I/WGPM/L.2/Add. 1, 29 June 1998, n.6. 2000] PRIEST-PENITENTPRIILEGE privileges in a Note circulated by the Secretariat of the Prep Com distributed several weeks before the First Session held in New York from February 16-26, 1999.8 These privileges concerning doctor- patient, priest-penitent and lawyer client relationships, became a fo- cus of the attention of the Prep Com delegates.! During the winter and summer 1999 Prep Com sessions, several delegations acknowledged the importance of preserving these privi- leges specified in the Note which are observed in many legal systems of the world. For example, the Colombian delegation noted in the Second Session of the Prep Corn'0 specific examples of confidential- ity with respect to Rule 6.4. Colombia indicated that it is important to recognize circumstances having to do with profession or con- science and proposed that a rule should be drafted to reflect these circumstances and improve the wording in Rule 6.4. Consequently, Colombia stated that the Prep Corn should take such proposals into account, including references to relationships such as confessor- penitent, doctor-patient, and between relatives, when developing a newly drafted Rule 6.4." The position paper of the Colombian delegation is one illustration of the contribution that various legal systems of the world have made and can make to the credibility of the International Criminal Court ("ICC") by taking steps to comply with the due process of law. These measures are consistent with general principles of law recog- nized by the nations of the world. Thus, in drafting the Rules of Pro- 8. See References to Rules of Procedure and Evidence found in the Rome Statute of the International Criminal Court and in relevant documents of the United Nations Diplomatic Conference of Plenipotentiaries for the Establishment of an International Criminal Court, PCNICC/1999/L.2, 26 January 1999 (recalling the work of the Diplomatic Conference and reiterating those privileges which had been identified for possible inclusion in the Rules of Procedure and Evidence). 9. See id. at 8 (calling attention to the Report of the Working Group on Proce- dural Matters, document AICONF.183/C.IAVGPM/L.2/Add.! of 28 June 1980). 10. See Preparatory Commission for the International Criminal Court, PCNICC/1999iL.4/Rev.1 (running from July 26, 1999 to Aug. 13, 1999). 11. See Proposal submitted by Colombia concerning the Rules of Procedure and Evidence, Comments on the coordinator's proposal (PCNICC/1999/ WGRPE/RT.5), PCNICC/1999AWGRPEIDP.24, 29 July 1999 (setting forth Co- lumbia's proposals on how to improve the privilege). The proposal noted in foot- note 1 that its delegation "submitted a special proposal on family relationships on the basis of our constitutional provisions." Id. at DP. 15 and 16. AM. U. INTL L. REV. [15:639 cedure and Evidence, the members of the Prep Com can and should rely on the contributions of "general principles of law recognized by" various legal systems throughout the world as an important and rele- vant source of international law.'2 Upon examining the provisions of a number of legal cultures, one can see that the traditional eviden- tiary privileges, such as lawyer-client, priest-penitent, doctor-patient, and specified family relationships, are long observed and respected. Moreover, they do not undermine the need to seek the truth in evi- dentiary proceedings. In addition, some of these privileges can fur- ther the interests of justice. For example, the spiritual counseling that takes place within the priest-penitent, or similar clergy privilege," can provide an incentive for an accused to reconcile not only with God and the spiritual world but also with the victims of crimes com- mitted by the accused." The purpose of this Essay is to inform readers about the history of the priest-penitent privilege. In addition, it will demonstrate how this venerable evidentiary exclusion is essential to an international tribu- nal concerned with due process of criminal law. This Essay con- cludes that the priest-penitent privilege should be incorporated into the Rules of Procedure and Evidence for the ICC. 12. See I.C.J., Art. 38.1(c) (discussing the court's duty to decide disputes in ac- cordance with principles of international law). 13. See Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting Re- quirements Versus the Clergy Privilege and Free Exercise of Religion, 71 MINN. L. REV. 723 n.3 (1987) (expanding the traditional term "priest-penitent" to "cleric- confider"). 14. See CATECHISM OF THE CATHOLIC CHURCH, supra note 1, para. 1440 (set- ting for the practice and beliefs of the Catholic Church, confession to a member of the clergy takes place in the context of the Sacrament of Penance and Reconcilia- tion).