Dec 22, 2009
Genocide and crimes against humanity are the same as almost every other crime, in that a conviction requires proof beyond a reasonable doubt (or similar standard in the relevant lexicon of the jurisdiction) that a prohibited act (actus reus or "objective element") was carried out by the accused with the appropriate degree of fault (mens rea or "subjective element"). The international crime of genocide specifies five prohibited acts committed against a national, racial, ethnic, or religious group that need to be proved. The fault element requires proof that the act was committed with the intention of destroying the particular group in whole or in part. Crimes against humanity require proof that certain acts were carried out in the context of a widespread or systematic attack against the civilian population. The fault element requires proof that the accused participated in the act in the knowledge that it formed part of the context of the attack. No discriminatory intent is required.
Genocide and crimes against humanity can be referred to as "system crimes." These are a type of organized crime that will generally require a significant degree of planning, and a probable division of labor between those planning and those executing the plan. The key challenge is not normally in proving that the facts occurred, but in relation to the nature of the participation and the knowledge and intentions of those "behind the scenes." While it is generally the case that proving the facts is the least of the evidential problems in these crimes, there remain nonetheless significant matters to be considered regarding problems of evidence preservation, timing, scale, security, and appropriate treatment of witnesses. Proving the "crime base" presents its own challenges. Essentially, crime base is the proof that the criminal act has taken place. In general terms, this is done through traditional investigation techniques: the testimony of witnesses who are sufficiently proximate to the facts to be deemed credible and reliable, and the analysis of physical evidence from the crime scene, including ballistic and other forensic investigation.
The nature and context of the crimes makes it much less likely that witnesses will forget their experiences than might be the case in more mundane crimes. Similarly, the degradation of physical evidence such as human remains, while clearly undesirable, is not usually significantly damaging to its use as evidence. Exhumations are generally not required in order to clearly identify victims of genocide and crimes against humanity, but rather are needed to show with sufficient clarity the immediate circumstances of the victims' deaths and credible indications (in the case of genocide) that they belonged to a particular group. Several years between the event and the investigation will generally not degrade the remains so much that this kind of evidence cannot be obtained.
The fact that these are massive and complex crimes means that more evidence regarding the crime base will be required than in common and simple cases. However, evidence pertaining to the dimensions of the crime base has frequently been facilitated by the judicious use of experts and reliable objective observers. In the case of Jean-Paul Akayesu, for instance, the International Criminal Tribunal for Rwanda (ICTR) was satisfied that at least two thousand people had been killed between April and July 1994 primarily, though not exclusively, on the basis of experienced journalists and researchers (Akayesu, paras. 115–122, 181). This approach was much more swift and efficient than taking testimony from affected relatives in order to prove the loss of each individual.
In prosecutions arising from the Yugoslav and Rwandan conflicts, significant attention has been paid to the issue of rape and sexual abuse. Such crimes, and evidence of other serious physical or mental injury, do not have to be proved to the same degree of specificity that might be expected in an ordinary case of sexual assault. There is generally no requirement of medical evidence of the specific sexual attack, for instance. Instead, credible testimony from victims and witnesses has proved sufficient, as can be seen in the case of Stakic (Stakic, para. 229–236), which was prosecuted before the International Criminal Tribunal for the former Yugoslavia in connection with serial sexual assault in various prison camps, including Omarska. Similarly, the psychological impact of certain acts has not been addressed by seeking evidence from each victim as to specific consequences of their treatment, but instead has been sought on a broader level, with various kinds of experts (medical as well as anthropological) explaining the impact that certain treatment will have on individuals as well as on larger numbers of people.
The nature of the evidence presented in such trials is profoundly disturbing, not only for the witnesses, but also for the judges. Prosecutors have to strike the balance between providing sufficient proof and respecting the emotional capability of all concerned to absorb large quantities of distressing information.
The biggest challenge to securing crime base evidence is encouraging witnesses to testify. The costs of effective witness protection over sustained periods are generally prohibitive except in a very limited number of cases. Even where trials take place far from the homes of such witnesses, they still have to return, and when they do, they may find themselves endangered. Significant strides have been made in understanding that protection is only one of a spectrum of issues that have to be dealt with, if witnesses are to be encouraged to cooperate with investigations. There is both an ethical imperative and strategic advantage in being absolutely honest with witnesses regarding the risk they may face should they agree to testify. No prosecutor should ever try to mislead witnesses in this regard. This is never acceptable, but it is even more reprehensible when the witnesses are survivors of horrendous crimes such as genocide.
Strategically, as well, prosecutors should understand that witnesses will provide more compelling testimony if they feel engaged and valued in the process as a whole. Sensitivity to the needs of such witnesses must be expressed through effective and regular communication, treatment that respects cultural and social influences that may govern the ability and speed with which certain matters can be spoken about, and, generally, the creation of a relationship of trust and respect. Such efforts may often prove sufficient to convince at-risk witnesses to accept danger in the interest of serving the cause of justice.
In the case of Jelisić, the ICTY has confirmed that genocide does not necessarily require the prior existence of a plan or the participation of more than one person. Nonetheless, it is generally accepted that most cases will normally involve some form of organization and a division of labor. As with any form of organized crime, proving the participation of behind-the-scene actors requires an investigative approach that is quite different from crime base investigations. It requires a multidisciplinary investigation that is capable of understanding policy, strategy, and tactics, emphasizing especially the analysis of command structures, communications, disciplinary practices, logistics, and munitions. It is generally unlikely that those who work behind the scenes will leave unambiguous indications of their involvement, so proving the overall circumstances of the events allows the court to understand the context in which policy and operational decisions were made.
One important element in such investigations is the recovery of documentary evidence. Such evidence has several key advantages. For one thing, it is less susceptible to challenges from the defense and may be more directly incriminating than personal testimony. Human testimony will always carry the potential of being undermined in ways that are much less likely in relation to documentary evidence. The recovery of documentary evidence is susceptible to contamination, however. It is true that much documentary evidence may be destroyed, but it is surprising how often even apparently insignificant documents may be useful. The investigations between 1984 and 1987 into the torture and disappearances of thousands during Argentina's "dirty war" benefited considerably from the study of official military plans that explained political and strategic goals, even though they did not specify any treatment of individuals.
Improved technology also makes proving some aspects of participation more feasible. In the ICTY case of Kordic, the accused was convicted in relation to some matters (specifically, the attacks on Busovaca) based on the evidence of intercepted radio messages that indicated his direct role in ordering and facilitating the crimes that were committed (see also Krstic, paragraphs 105-117). However, an important aspect in proving the involvement of others who worked behind the scenes may be the ability to persuade people with inside knowledge to testify. This is always a difficult exercise, both psychologically and ethically, but it has proved key in some trials where high-ranking officials have been convicted. The conviction of General Krstic before the ICTY on charges of aiding and abetting genocide in Srebrenica depended partially upon the testimony of subordinate sources. The cooperation of Drazen Endemovic has proved important in the investigation of the Srebrenica genocide (Krstic, para. 234). His assistance in investigations was also important in the "Rule 61" hearings, which dealt with the culpability of Radovan Karadzic and Ratko Mladic. Some forms of plea-bargaining may offer a valuable way to secure this type of evidence.
Admissibility of evidence at trial in domestic systems is regulated by the system governing the conduct of the trials, be it common or civil law. In general, common law systems take a more technical approach to admissibility than do civil law systems. On occasion, however, these rules have been relaxed, particularly when dealing with cases of crimes against humanity and genocide. Civil law systems tend to be liberal in their admission of evidence, and are guided mainly by criteria of relevance.
The approach to admissibility before international criminal courts, from the Nuremberg and Tokyo Tribunals to the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, and most recently the Special Court for Sierra Leone, has resembled that of civil law systems, in that the general approach to admissibility is flexible. Thus, probative evidence is admitted regardless of its format, unless the rights of the accused are deemed to be prejudiced by admission. This flexibility is justified by the fact that evidence on these crimes can be difficult to secure. There may be few surviving witnesses, and physical evidence may have been destroyed. Because the international criminal courts are composed of professional judges, they are deemed capable of according a particular piece of evidence its appropriate weight, and of disregarding any evidence that is unreliable. For instance, hearsay evidence—that is, a statement, other than one made by the declarant while testifying at the trail or hearing, offered in evidence to prove the truth of the matter asserted—is readily available in such trials.
To date, the presentation of evidence at trial before international criminal courts has generally been adversarial, where each side presents its own evidence, and where witnesses are subjected to both direct and cross examination. It is not clear yet to what extent this trend will be followed by the International Criminal Court. According to the principle of equality of arms, the prosecution and defense have an equal opportunity before the court both to call witnesses and to submit facts into evidence. International courts have the power to call their own witnesses, but this has usually been used to supplement the witnesses called by the prosecution and the defense.
The ICTY and ICTR have also developed an extensive system of rules of disclosure by which evidence is shown ahead of time to the other side in the trial. Similar rules were not applied at Nuremberg and Tokyo, where rules of disclosure were far more rudimentary. In those earlier tribunals, documents were often disclosed twenty-four hours in advance as a matter of course, and they were sometimes purposely used to surprise witnesses during cross-examination.
Such "trial by ambush" is not permissible before the modern tribunals. The duty to disclose is greater for the prosecution than for the defense. As a general rule, the prosecutor has specified time limits within which he or she must disclose material supporting the indictment, prior statements by the accused, and copies of witness statements. Of particular significance is Rule 68, shared by both the ICTY and ICTR, which establishes the duty to disclose the "existence of material known to the prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence." This rule has given rise to much litigation at the ICTY, including litigation on appeal charging that the prosecutor did not adequately meet this burden during trial.
Depending on the nature of the trial, the prosecution (and defense) may rely more heavily on live testimony or on documentary evidence. Assessing the credibility of witnesses may be particularly challenging when, as occurs with some frequency in international trials, the judge does not speak the same language and has no intimate knowledge of the cultural context. Many witnesses to genocide or other grave crimes may suffer from post-traumatic stress disorder, but judges have held that this does not necessarily affect their credibility. Many witnesses request protection, including measures to conceal their identity before and during trial. Such requests must be balanced against the right of an accused to a public trial.
Victims of sexual offenses benefit from additional rules that seek to protect them, including rules relating to the inadmissibility of their prior sexual conduct. This is the case for the International Criminal Court and both the Rwandan and Former Yugoslavian tribunals, which also recognize the principle that consent may not be inferred in certain coercive circumstances, and gives the courts the latitude to hear evidence in camera—that is, in private, excluding the public. Children are rarely called as witnesses in such trials, but when their testimony is required, they are able to give testimony via closed circuit television from a remote location. Witnesses may also be granted safe conduct, which confers on them a temporary immunity from arrest and prosecution.
Evidence from experts is common in trials of genocide and crimes against humanity. There are a variety of evidentiary categories that call for the testimony of experts including historical, ballistics, medical, regional, and anthropological evidence. An expert can be challenged on his or her qualifications and methodology, and does not testify directly on the matters which the court is called upon to decide. The court may choose to hear the evidence and simply disregard certain conclusions and not rely on them for conviction. At ICTY, a special regime governs the reception of expert evidence, aimed at expediting the trial. An expert's statement must be disclosed ahead of time and the opposing party must decide whether it wishes to cross-examine.
The ICTY and ICTR can generally compel individuals to testify, unless an individual benefits from a privilege or immunity. One exception to the principle of compellability is the lawyer-client privilege, which prohibits a witness from being compelled to divulge conversations occurring between a lawyer and his or her client. Another recognized exception is the privilege against self-incrimination, which holds that a witness cannot be forced to testify against his or her own interests. Other privileges have been recognized in the jurisprudence, where there is a public interest to keep certain information confidential. This includes, for instance, the official duties of court functionaries. In one case, the ICTY Appeals Chamber decided to extend a privilege to a war correspondent, except for evidence of direct and important value in determining a core issue in the case that cannot reasonably be obtained elsewhere. The ability of the ICC to compel individuals to testify is less clear than it is for the ICTY and the ICTR. The ICC's statute and rules state that requests for witnesses to appear must be directed through state parties.
The ad hoc tribunals have broad enforcement powers by virtue of their establishment by Security Council Resolution under Chapter VII of the UN Charter. They have the power to issue a binding order to a state to produce information, even if the information concerns national security. In such cases, certain measures can be put in place to safeguard the confidentiality of that information. This differs from the ICC, where states are able to deny requests for assistance on national security grounds. It also differs from the Special Court for Sierra Leone, which lacks such powers, as it was created by Agreement between the UN and government for Sierra Leone and not by a Security Council Resolution. International organizations do not have the same obligation as nations do when it comes to providing the ad hoc tribunals with information. For instance, in the case of Simic et al, the ICTY has recognized that the International Committee for the Red Cross benefits from a privilege and that its former employees cannot be forced to testify. A similar privilege is recognized in Rule 73 of the ICC.
Documentary evidence is particularly prevalent in cases where the defense is based on a claim of superior responsibility (being ordered to commit an act by a superior officer) or other forms of indirect participation. Documents are admissible depending on their relevance and probative value, but questions may arise as to their authenticity. With this type of evidence, as with others, the chain of custody may have to be demonstrated, to show that the evidence could not have been tampered with after the fact. Diaries and videos have proved a particularly powerful source of evidence in international criminal trials.
Documentary evidence may also be used in the place of live testimony. A particular challenge in trials of genocide and crimes against humanity has been the volume of the evidence, in part resulting from the adversarial nature of the proceedings. This constitutes a threat to the right of the accused to an expeditious trial. Live testimony is time-consuming, and many of the procedural developments in evidence at ICTY have sought to limit its scope. At Nuremberg and Tokyo, affidavit evidence was freely admissible, but rules on affidavits before the modern tribunals have proved difficult in practice. Instead, the ad hoc Tribunals allow for the admission of other forms of written statements in certain circumstances, bearing in mind the right of the accused to cross-examine witnesses against him or her. The jurisprudence on the admissibility of statements from deceased witnesses has been particularly inconsistent. Such statements are currently not admissible before the Sierra Leone Special Court.
An additional way to save time is by submitting a compilation of evidence. Unlike civil law systems, international criminal courts have not ordinarily allowed for the submission of "dossiers" or case-files, but they do allow for the production of compiled materials, as long as these do not contain analysis of the evidence. Transcripts from other trials may also be admitted into evidence as a way to save time, subject to certain rights to cross-examination. Judicial notice may be another way to save time, but before the ad hoc tribunals it has been limited to facts of common knowledge or facts adjudicated by the appeals chamber.
The absence of forensic evidence in killings is not decisive if there is convincing eyewitness testimony of the crimes. The rules of some national systems, requiring the production of a body as proof of death, therefore do not apply. The same holds true for torture or rape, neither of which require forensic or medical evidence. At the same time, forensic evidence often does play an important part in the trials.
According to rule ninety-five of the ICTY, evidence before the ad hoc tribunal may be excluded "if obtained by methods that cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." If the rights of the accused are infringed to a certain threshold, so as to cause irreparable damage to the integrity of the proceedings, this may result in a discontinuance of the proceedings against the accused.
An appeal should not amount to a retrial, and the tribunals have strict rules on which new or additional evidence shall be permitted to be heard. For instance, the evidence on which an appeal is based cannot have been available at trial, or it must be in the interests of justice to admit it. Nonetheless, applications for additional evidence are very frequent. Also, the appeals chamber for both the ICTY and the ICTR may be called upon to review a judgment where a new fact has been discovered.
SEE ALSO Forensics; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Nuremberg Trials; Rape; War Crimes
Kniriem, A. von (1959). The Nuremberg Trials. Chicago, Il.: Regnery.
Lee, Roy S., ed. (2001). The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, N.Y.: Transnational Publishers, Inc.
Röling, B. V. A., and C. F. Rüter eds. (1977). The Tokyo Judgment: The International Military Tribunal for the Far East. Amsterdam: APA-University Press Amsterdam.
Paul Seils
Marieke Wierda
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